UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Report for Event (date of earliest event reported):
SOLAR SATELLITE COMMUNICATION, INC.
(Exact name of registrant as specified in its charter)
Colorado 0-0000 84-0907644
(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
5650 Greenwood Plaza Blvd., Ste. 107, Englewood, CO 80111
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 721-7300
(Former address)
Item 1. Changes in Control of Registrant.
On July 8, 1998 Satellite Investment Group LLC, a Colorado limited liability
company (SIG) controlled equally by Robert J. Guerra, Craig Kleinman, Stephen
A. Maguire and St. Charles Investment Company, a Colorado corporation, acquired
approximately 51% of the issued and outstanding shares of Solar Satellite
Communication, Inc. (Solar) pursuant to a Stock Purchase Agreement by and
between SIG and Tamiya Watanabe. The Stock Purchase Agreement was originally
executed on May 21, 1998 and the purchase closed on July 8, 1998. As part of
the Stock Purchase Agreement, Messers. Guerra, Kleinman and Maguire were
appointed as Directors of the company and the prior Board resigned. The New
Board of Directors appointed Mr. Guerra as President, Mr. Kleinman as Vice
President and Treasurer, and Mr. Maguire as Secretary of Solar. There are no
arrangements known to Solar including pledges of the acquired securities that
might result in a further change of control in the future.
Item 5. Other Events.
On June 3, 1998 SIG entered into an Asset Rehabilitation Agreement with Solar
pursuant to which SIG agreed to execute indemnities, guarantees, reimbursement
agreements and similar other instruments required by bonding companies in
order to enable Solar to obtain the reissuance of stock certificates for
527,650 shares of Accelr8 Technology Corporation. Certificates for such stock
had been lost and unlocatable by Solar for a number of years. In
consideration for the foregoing, SIG is to be paid a facilitation fee by Solar
of $2,500,000, which fee is to be paid in cash when Solar has available cash
funds or, at the election of SIG, in shares of Accelr8 Technology Corporation.
The performance of the Asset Rehabilitation Agreement was conditioned upon the
subsequent completion of the purchase by SIG of 3,825,000 shares of the common
stock of Solar.
Item 7. Financial Statements and Exhibits.
(a) Stock Purchase Agreement by and between SIG and Tamiya
Watanabe dated May 21, 1998.
(b) Asset Rehabilitation Agreement dated June 3, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SOLAR SATELLITE COMMUNICATION, INC.
Date: July 23, 1998 By: /s/ Robert Guerra
_______________________________
Robert Guerra
Its: President
Exhibit A
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") made and entered into
effective the 21st day of May, 1998 (the "Effective Date"), is by and among
Tamiya Watanabe ("Seller") whose principal business address is
Nishi-Shinbashi, YS Bldg, 4F, 2-Chome, Minato-Ku, Tokyo 105, Japan, Satellite
Investment Group, LLC , a Colorado limited liability company ("Purchaser") whose
business address is 5650 Greenwood Plaza Boulevard, Suite 107, Englewood, Co
80111, Rabex USA Holdings, Inc., a Colorado corporation ("RUSAH"), Kaoru
Konno, Nagao Fujiwara, and Fukumitsu Takahashi (collectively, the
"Individuals"). Seller, RUSAH, and the Individuals are sometimes
collectively referred to herein as the "Seller Affiliates".
RECITALS
A. Solar Satellite Communication, Inc. (the "Company") is a corporation
duly organized in the state of Colorado;
B. There are seven million five hundred five thousand eight hundred one
(7,505,801) issued and outstanding shares of common stock (the "Common
Stock") of the Company;
C. One million shares of preferred stock (the "Preferred Stock") have
been authorized for issuance by the Company, but no Preferred Stock has been
issued;
D. RUSAH is the registered owner of three million eight hundred
twenty-five thousand (3,825,000) shares (the "Stock") of the Company,
representing 50.96% of outstanding Common Stock of the Company. RUSAH has
assigned and transferred the Stock to Seller, but said transfer has not yet
been registered on the Company books with the Company transfer agent;
E. The Individuals each, at one time or another, were associated with
RUSAH as officers, directors and/or employees;
F. The Company owns 527,650 shares of stock (the "Accelr8 Stock") in
Accelr8 Technology Corporation, a Colorado corporation ("Accelr8" or the
"Issuer") which shares are represented by two stock certificates (the
"Accelr8 Certificates"), to wit: Accelr8 Stock # 1797 which originally
represented 610,600 shares of Accelr8 Stock and now represents 152,650 shares
of Accelr8 Stock as a result of a 1 for 4 reverse stock split and Accelr8
Stock # 1428 which originally represented 1,500,000 shares ofAccelr8 and
now represents 375,000 shares of Accelr8 Stock as a result of the 1 for 4
reverse stock split.
G. Seller and RUSAH desire to sell, assign, transfer, and deliver to the
Purchaser, and Purchaser desires to purchase from the Seller, all, but not
less than all, of the Stock, along with any warrants, option rights or other
interests in and to the Company now or hereinafter owned by any of the Seller
Affiliates, on the terms and subject to the conditions hereinafter contained;
and
H. Purchaser's sole purpose in acquiring the Stock from Seller is to
acquire a derivative interest in the Accelr8 Stock owned by the Company.
NOW, THEREFORE, in consideration of the mutual covenants, promises,
agreements, representations, and warranties contained in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto do hereby covenant, promise,
agree, represent, and warrant as follows:
1. AGREEMENT TO PURCHASE AND SELL SHARES.
Seller agrees to sell, transfer, assign, and deliver to Purchaser at
Closing (as defined below) free and clear of all liens, claims, mortgages,
pledges, restrictions, charges, rights of third parties and encumbrances of
every kind, and Purchaser agrees to purchase from Seller, on the terms and
subject to the conditions set forth herein, all of its Stock in the Company,
which will not represent less than 50.96% of outstanding Common Stock of the
Company.
2. CLOSING.
2.1. Initial Closing Date. This transaction shall be closed
(herein, the "Closing") at the law offices of Pendleton, Friedberg, Wilson, &
Hennessey, P.C. (herein, the "Escrow Agent") at 303 East 17th Avenue, Suite
1000, Denver, Colorado 80203-1263 on July 14, 1998 at 4:00 p.m. The time,
place, and date of the Closing are referred to throughout this Agreement as
the "Closing Date".
2.2. Extension of Closing Date. The Purchaser may extend the
Closing for up to thirty days by paying to Seller, in advance of the
extension, an extension fee (herein, the "Extension Fee") in the amount of
Ten Thousand Dollars ($10,000). The Extension Fee must be paid prior to the
initial Closing date of July 14, 1998, shall not be refundable, and shall be in
addition to and not credited toward the Purchase Price.
3. PURCHASE PRICE.
The full, entire and aggregate purchase price that shall be paid by the
Purchaser for the Stock shall be $1,800,000 (the "Purchase Price"), payable
as follows:
3.1. Earnest Money Deposit. Simultaneous with the mutual execution
of this Agreement, the Purchaser has issued a check to the order of the
Escrow Agent in the sum of Two Hundred Fifty Thousand Dollars ($250,000) as
its earnest money deposit (the "Earnest Money Deposit"). If the Earnest
Money Deposit check is not honored and paid when presented, then this Agreement
shall be NULL AND VOID and neither party shall have any continuing rights,
obligations, or liabilities hereunder. The Earnest Money Deposit, along with
all interest earnings thereon, shall be delivered to the Seller by the Escrow
Agent at the Closing. Escrow Agent shall deposit the Earnest Money Deposit in
a separate money market escrow account, at a federally insured institution,
and shall hold the Earnest Money Deposit as follows:
a. If the purchase and sale of the Stock is not consummated due to
the Seller's or RUSAH'S failure to perform all of their obligations under
this Agreement, or due to Purchaser's cancellation of this Agreement pursuant
to the provisions of Section 9.3, or due to the failure of any of Purchaser's
conditions precedent hereunder, the Earnest Money Deposit and all interest
thereon, shall be paid and delivered immediately to the Purchaser.
b. If the purchase and sale of the Stock is not consummated due to
the Purchaser's failure to perform all of its obligations under this
Agreement, the Earnest Money Deposit and all interest thereon, shall be paid
and delivered immediately to the Seller as Seller's total LIQUIDATED DAMAGES.
3.2. Cash Payment. At the Closing, the Purchaser shall pay to
Seller, in Good Funds (cash, electronic transfer funds, certified check,
savings and loan teller's check, and cashier's check) the sum of Six Hundred
Fifty Thousand Dollars ($650,000) (herein, the "Cash Payment").
3.3. Secured Note. At the Closing, Purchaser shall deliver to the
Seller a promissory note (the "Secured Note") in the form of Exhibit A to be
attached hereto in the principal amount of Three Hundred Thousand Dollars
($300,000) along with a pledge agreement (the "Pledge Agreement") in the form
of Exhibit B to be attached hereto securing the Secured Note with a pledge
of the Stock. The Secured Note shall mature in three months.
3.4. Unsecured Note. At the Closing, Purchaser shall deliver to the
Seller a promissory note (the "Unsecured Note") in the form of Exhibit C to
be attached hereto in the principal amount of Six Hundred Thousand Dollars
($600,000).
4. TRANSFER DOCUMENTS.
The Seller shall deliver to the Purchaser, at the Closing, the following
documents (the "Transfer Documents"), in form and substance satisfactory to
the Purchaser:
4.1. Stock Certificates and Stock Powers. Stock Certificates
representing the Stock, duly registered in the name of the Purchaser, with
appropriate and separate stock powers properly signed;
4.2. Assignments. An assignment duly executed by each Seller
Affiliate assigning to Purchaser any and all Common Stock, options, warrants,
or other interests that they, or any of them, may have in and to the Company,
if any;
4.3. Other Specified Documents. All of the consents,
certificates, lists, opinions, instruments, affidavits and other
matters designated in Sections 9,10, and 11 herein;
4.4. Resignations. Written resignations of all officers
and directors of the Company's board of director meeting
accepting the same; and
4.5. Corporate Records. The original of all Corporate
records (as defined and described in Section 10.3).
4.6. All Other Required Documents. All of the
documents, resolutions, agreements, instruments, consents and
opinions, required to be delivered to Purchaser pursuant to this
Agreement and not previously delivered to the Purchaser,
including those described in sections 11.1 and 11.2.
5. ATTACHMENTS OF EXHIBITS. The Exhibits to be attached to
this Agreement shall be prepared, approved, and made a part of
this Agreement as follows:
5.1. Financing Documents. The form of the Secured Note,
the Pledge Agreement, and the Unsecured Note to be attached
hereto respectively as Exhibits A, B, and C (collectively, the
"Financing Documents") shall be prepared by the Purchaser and
delivered to the Seller within five days of the Effective Date.
5.2. Approvals. The Seller shall have five days from
receipt to approve or reject the form of the Financing Documents
delivered to it by the Purchaser. If a rejection or approval is
not granted or rejected within five (5) days of delivery of such
documents, then approval shall be conclusively deemed to have
been granted.
5.3. Incorporation into this Agreement. Within five
days of the approval of the Financing Documents, the same shall
be attached as exhibits to this Agreement, and this Agreement
shall be re-executed by the Parties with each party initialing
the first page of each Exhibit.
5.4 Termination. If the Financing Documents have not
been approved within twenty days of the Effective Date, then this
Agreement, shall become NULL AND VOID, the Purchaser shall be
entitled to the return of its Earnest Money Deposit, This
Agreement shall be terminated and neither party shall have any
continuing rights, obligations, or liabilities hereunder.
6.1. Delivery of Earnest Money Deposit. The Escrow
Agent will deliver the Earnest Money Deposit to the Seller.
6.2. Cash Payment. The Purchaser shall make the Cash
Payment to Seller.
6.3. Financing Documents. The Purchaser shall deliver
to Seller the Financing Documents fully executed to the
reasonable satisfaction of Seller's attorney.
6.4. Transfer Documents. The Seller shall deliver the
Transfer Documents to Purchaser fully executed to the reasonable
satisfaction of Seller's attorney.
7. SPECIAL PROVISIONS REGARDING ACCELR8.
7.1. Definitions and Terminology. All CAPITALIZED TERMS
used in this Section 7 and in the succeeding Sections of this
Agreement, unless expressly defined herein, shall have the
meanings set forth in the Uniform Commercial Code - Investment
Securities, Colorado Revised Statutes, Sections 4-8-101 etc. seq.
7.2. Materiality of Accelr8 Stock. The Seller
acknowledges and agrees that the sole reason that the Purchaser
desires to acquire the Common Stock is because the Company is the
lawful owner of the Accelr8 Stock and because, to the best of the
knowledge of the Seller Affiliates, the Company's rights in and
to the Accelr8 Stock are free and clear of any ADVERSE CLAIMS.
7.3. Lost Certificates. The Seller Affiliates hereby
disclose to Purchaser, and Purchaser hereby acknowledges that,
the Company has lost the Accelr8 Certificates and that neither
the Seller, an Affiliate, nor the Company have been able to
obtain an indemnity bond in an amount sufficient to require the
Issuer to issue replacement certificates.
7.4. Lost Certificate Bond. As soon as possible after
Closing, the Purchaser intends to procure an indemnity bond; (the
"Bond") from a qualified insurance or bonding company (the
"Bonding Company") in an amount sufficient to require the Issuer
to issue replacement certificates for the Accelr8 Certificates.
In order to obtain a Bond, the Purchaser will be required to
submit to the Bonding Company certain information and
documentation, such as affidavits executed by the Seller and/or
the officers and directors of the Company and the Corporate
Records, which describe the circumstances regarding the loss of
the Accelr8 Certificates. The Seller and RUSAH agree to
cooperate with Purchaser, and to require their representatives
and agents to cooperate with the Purchaser in all reasonable
ways, both before and after the Closing, in Purchaser's efforts
to obtain a Bond on behalf of the Company.
7.5. NOTICE OF ADVERSE CLAIM \Termination. If, at any
time prior to Closing any Seller Affiliate has NOTICE OF an
ADVERSE CLAIM against the Company's interest in the Accelr8
Stock, the Seller Affiliate shall immediately COMMUNICATE to
Purchaser all relevant information concerning the ADVERSE CLAIM.
If any party receives NOTICE OF an ADVERSE CLAIM against the
Company's interest in the Accelr8 Stock prior to Closing, the
Purchaser may, at its option and in its sole and absolute
discretion, terminate its right and obligation to purchase the
Stock by written notice to Seller, in which event, the Purchaser
shall be entitled to the return of its Earnest Money Deposit,
this Agreement shall be terminated and neither party shall have
any continuing rights, obligations, or liabilities hereunder.
8. ASSET REHABILITATION AGREEMENT.
8.1. Statement of Purpose. The value of the Company,
and therefore, the value of the Company's common stock, will be
significantly increased if the Accelr8 Stock can be converted to
freely transferable stock which may be traded by the Company on a
public stock exchange or in the over the counter market. The
Purchaser desires to enter into a contract with the Company (the
"Asset Rehabilitation Agreement") whereby the Purchaser will
agree to take all reasonable and necessary actions to make the
Accelr8 Stock freely transferable. The Company will agree to pay
to the Purchaser a fee (the "Rehabilitation Fee") in the total
sum of Two Million Five Hundred Thousand Dollars ($2,500,000)
when the Acceler8 Stock becomes freely transferable. The
Rehabilitation Fee shall be payable to the Company as fimds
become available from the disposition of the Acceter8 Stock. The
Seller believes that it is in the Company's bests interests, and
the best interests of the Company's shareholders, to enter into
the Asset Rehabilitation Agreement.
8.2. Preparation and Approval of the Asset
Rehabilitation Agreement. The Asset Rehabilitation Agreement
shall be prepared by the Purchaser and delivered to the Seller
within five days of the Effective Date of this Agreement. The
Asset Rehabilitation Agreement shall contain an express condition
precedent that it is to become effective only upon the Seller's
delivery of the Transfer Documents to the Purchaser pursuant to
Section 4 of this Stock Purchase Agreement.
8.3. Approval of Asset Rehabilitation Agreement. The
Seller shall have five days from receipt to approve or reject the
form of the Asset Rehabilitation Agreement delivered to it by the
Purchaser. If a rejection or approval is not granted or rejected
within five (5) days of delivery of such documents, then approval
shall be conclusively deemed to have been granted.
8.4. Execution of the Asset Rehabilitation Agreement.
The Seller shall cause the Company to duly execute and deliver to
Purchaser two originals of the approved Asset Rehabilitation
Agreement within twenty (20) days of the Effective Date.
Purchaser, within three (3) days of its receipt of said executed
documents, shall duly execute the two originals of the Asset
Rehabilitation Agreement, and shall deliver to Seller's attorney
one fully executed Asset Rehabilitation Agreement.
8.5. Termination. If the Asset Rehabilitation Agreement
has not been fully executed within twenty five (25) days of the
Effective Date, then this Agreement shall become NULL AND VOID,
the Purchaser shall be entitled to the return of its Earnest
Money Deposit, this Agreement shall be terminated and neither
party shall have any continuing rights, obligations, or
liabilities hereunder.
9. INVESTIGATION PERIOD.
9.1. Due Diligence Documents. Within seven (7) days of
the mutual execution of this Agreement (the "Effective Date"),
the Seller Affiliates shall deliver and make available to
Purchaser, such additional documents, consents and authorizations
as may be required by Sections 9.4 through 9.10(the"Due Diligence
Documents") and the Corporate Records described in Section lO.3.
If information comes into the possession and control of any
Seller Affiliate at any time before Closing which tends to
supplement, vary, or contradict a Due Diligence Document, the
Seller Affiliate shall notify the Purchaser of said new
information and shall promptly forward to Purchaser a copy of any
written document related thereto.
9.2. Due Diligence. Purchaser shall have forty five
(45) days beginning on the Effective Date (herein, the
"Investigation Period") to study, review, inspect and investigate
all aspects of the Company, including, without limitation, the
facts and circumstances surrounding the loss of the Accelr8
Certificates.
9.3. Election To Terminate. At any time prior to the
expiration of the Investigation Period, if Purchaser determines,
as a result of its investigation of the Company and the facts and
circumstances surrounding the Company's loss of the Accelr8
Certificates, that the circumstances are such that the Company
will not be able to obtain a replacement certificate, or that the
Purchaser or its principals would become subject to an
unreasonable risk of loss in conjunction with the indemnity,
guaranty, or reimbursement obligations to be incurred in
conjunction with obtaining the Bond, Purchaser may, at its option
and in its sole and absolute discretion, terminate its right and
obligation to purchase the Stock by written notice to Seller. If
Purchaser so terminates its obligations hereunder, this Agreement
shall be terminated, the Earnest Money Deposit shall be delivered
to Purchaser, and neither party shall have any continuing rights,
obligations, or liabilities hereunder. If Purchaser terminates
this Agreement for any other reason, Seller shall retain the
Earnest Money Deposit as liquidated damages as provided in
Section 15.1.
9.4. Communications Concerning Lost Accelr8
Certificates. Each Seller Affiliate shall deliver to the
Purchaser copies of any and all written communications sent to or
received by them concerning the lost Accelr8 Certificates,
including, without limitations, communications with former
Officers, directors, employees and agents of the Company.
9.5. Submissions To Bonding Companies. Each Seller
Affiliate shall deliver to the Purchaser copies of all written
information in their possession and control submitted by the
Company, or by them on behalf of the Company, to any Bonding
Company in conjunction with an attempt to obtain a lost
instrument Bond to replace the lost Accler8 Certificates.
9.6. Affidavits. The Seller and each Seller Affiliate
shall deliver to the Purchaser an affidavit containing the
following statements and information:
a. The location of the lost Accelr8 Certificates when
last seen by the affiant;
b. The efforts made by the affiant to locate the lost
Accelr8 Certificates;
c. The affiant's opinion as to the location of the Accelr8
Certificates;
d. That the affiant has no knowledge of any facts, nor
any reason to believe that such facts exist, that would suggest
that the Accelr8 Certificates have been INDORSED by the Company,
or have been transferred, assigned, or pledged to any Person
other than the Company;
e. That the affiant has no knowledge of any Person
making an ADVERSE CLAIM against the Accelr8 Stock and that the
Affiant has a GOOD FAITH belief that no ADVERSE CLAIM might be
asserted against the Company's ownership interest in the Accelr8
Stock;
f. That, to the best of the affiant's knowledge, no PROTECTED
PURCHASER has acquired any interest in the Accelr8 Stock; and
g. That the Affiant has no knowledge of any Person claiming to
have a Security Entitlement in or to the Accelr8 Stock.
9.7. Financing Documentation. The Seller Affiliates are
not aware of any financial institutions that may have received
financial statements, loan applications, or other credit
information ("collectively, the "Financing Documentation")
concerning the Company or RUSAH after March 28, 1994, except for
the application submitted to a Bonding Company in conjunction
with their obtaining an indemnity bond for the Stock certificate,
as described in Section 10.5. The Seller Affiliates are not aware
of any loans to the Company or RUSAH that closed after March 28,
1994. However, if any Seller Affiliate become aware of the
existence of any such Financing Documentation or loan closings,
they agree to submit to Purchaser a list of all such financial
institutions (including addresses, names of contact persons, and
phone numbers of contact persons). Purchaser understands that it
is unlikely that any Seller Affiliate would be able to obtain
access to any ]Financing Documentation, even if one of them
remembers that loans were made or applied for.
9.8. Information Regarding Judgments. The Seller
Affiliates shall submit to Purchaser a list of all persons that
obtained a judgment against either the Company or RUSAH after
March 28, 1994 in any state or federal court in the United
States, and the case name, case nwnber, and the name, address and
phone number of the lawyer that represented the judgment
creditor.
9.9. Consents to Provide Information and Files. Each
Seller Affiliate shall deliver to the Purchaser a separate
written consent and authorization addressed to each of the
Persons named in the lists delivered to Purchaser in response to
Sections 9.7 and 9.8, authorizing such Persons to turn over and
disclose to Purchaser any and all information, documents and
files concerning the subject transaction and holding said Persons
harmless from producing or disclosing such information, documents
and files. Each Seller Affiliate shall deliver to the Purchaser
a separate written consent and authorization addressed to "whom it may
concern", authorizing the recipient to turn over and disclose to Purchaser
any and all information, documents and files they may have concerning the
lost Accelr8 Certificates.
9.10. Certification of Seller's Counsel. A certification issued by
the law firm of Pendleton, Friedberg, Wilson, & Hennessey, P.C. stating that
the law firm has no NOTICE OF an ADVERSE CLAIM against the Accelr8 Stock.
10. REPRESENTATIONS AND WARRANTIES OF SELLER AFFILIATES.
The Seller Affiliates hereby represent and warrant to the
Purchaser as of the date hereof, and as of the Closing Date, to
the best of their knowledge, the following statements are and
will be true and accurate:
10.1. Ownership of Seller's Shares. Seller is the sole
and exclusive record and beneficial owner of registered owner of
Three Million Eight Hundred Twenty Five Thousand (3,825,000)
shares (the "Stock") of the Company, representing 50.96% of
outstanding Common Stock of the Company. The Seller possesses
good and merchantable title to the Stock and owns the Stock free
and clear of any and all security interests, agreements,
restrictions, claims, liens, pledges and encumbrances of any
nature or kind. The Seller has the absolute and unconditional
right to sell, assign, transfer and deliver the Stock to the
Purchaser in accordance with the terms of this Agreement.
10.2. Due Organization, Good Standing: Authorily of the Company. The
Company is a corporation duly organized, validly existing as a stock
corporation, and in good standing under the laws of the State of Colorado.
The Company has full right, power, and authority to own the Accelr8 Stock.
10.3. Corporate Records. A complete and correct copy of
the Company's Articles of Incorporation, as amended to the date
of this Agreement, (the "Charter") certified by the Secretary Of
State of the State of Colorado (the "Department") and of the
Company's by-laws, as amended to the date of this Agreement, (the
"By-Laws") shall be delivered to Purchaser within seven (7) days
of the Effective Date. The Charter and the By-Laws are in full
force and effect, the Company is not in breach or violation of
any of the provisions thereof, and the Seller will not permit the
Company to amend or modify any provisions thereof, except that
the Company has not held all of the shareholders meetings
required by the By-Laws. The Company agrees to make the minute
books of the shareholders and the board of directors of the
Company available to the Purchaser for examination within seven
(7) days ofthe Effective Date. The minute books are complete and
correct and accurately reflect all proceedings of the
stockholders of the Company and the board of directors of the
Company since RUSAH acquired a the Stock in 1994. The Charter,
By-Laws, and minute books are sometimes collectively refeffed to
herein as the "Corporate Records".
10.4. Validity of Agreement. The Seller has the legal
capacity and authority to enter into this Agreement. This
Agreement is a valid and legally binding obligation of the Seller
and is fully enforceable against the Seller in accordance with
its terms, except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors rights generally.
10.5. Capitalization; the Company Stock; Related
Matters. The Company's authorized capital stock consists of
Twenty Five Million (25,000,000) shares of common stock, without
par value, of which seven million five hundred five thousand
eight hundred one (7,505,801) shares are issued, and outstanding.
One million shares of Preferred Stock have been authorized for
issuance by the Company, but no Preferred Stock has been issued.
The Stock has been duly, legally and validly issued, and is
fully-paid and non-assessable. The Stock is currently
represented by a stock certificate issued to RUSAH to replace a
previous certificate held by RUSAH which is believed to
disappeared at the same time that the Accelr8 Certificates were
lost. The Company obtained the replacement certificate by
posting sufficient funds for an indemnity bond, permitting the
transfer agent for the Company to issue a replacement
certificate. Neither Seller nor RUSAH is aware of any ADVERSE
CLAIM with respect to the Stock. Delivery of the Stock by the
Seller to the Purchaser on the Closing Date will transfer to the
Purchaser full and entire legal and equitable title to 50.96% of
the issued and outstanding capital stock of the Company.
10.6. 0ptions, Warrants and Other Rights Affecting the
Company Capital Stock. The Company has no authorized or
outstanding options, warrants, calls, subscriptions, rights,
convertible securities or other securities [as defined in the
federal Securities Act of 1933 (hereinafter "Securities")] or any
commitments, agreements, arrangements or understandings of any
kind or nature obligating the Company, in any such case, to issue
shares of the Company capital stock or other Securities or
securities convertible into or evidencing the right to purchase
shares of the Company capital stock or other Securities. No
Seller Affiliate is a party to any agreement understanding,
arrangement or commitment, or bound by any Articles of
Incorporation or By-Law provision which creates any rights in any
Person with respect to the authorization, issuance, voting, sale
or transfer of any shares of Company Stock, Preferred Stock or
other Securities.
10.7. No Subsidiaries. The Company does not have any
subsidiaries and does not, directly or indirectly, own any
interest in or control any corporation, partnership, joint
venture, or other business entity.
10.8. Agreement Not in Conflict with Other Instruments;
Required Approvals Obtained. The execution, acknowledgment
sealing, delivery, and performance of this Agreement by the
Seller and the consummation of the transactions contemplated by
this Agreement will not (a) violate or require any registration,
qualification, consent, approval, or filing under, (i) any law,
statute, ordinance, rule or regulation (hereinafter collectively
referred to as "Laws") of any Governments or Governmental
Agencies, or (ii) any judgment, injunction, order, writ or decree
of any court, arbitrator, Government or Governmental Agency by
which the Company or any of its assets or Properties is bound;
(b) conflict with, require any consent, approval, or filing
under, result in the breach or termination of any provision of,
constitute a default under, result in the acceleration of the
performance of the Company' obligations under, or result in the
creation of any claim, security interest, lien, charge, or
encumbrance upon any of the Company' properties, assets, or
businesses pursuant to, (i) the Company' Charter or By-Laws, (ii)
any indenture, mortgage, deed of trust, license, permit,
approval, consent, franchise, lease, contract, or other
instrument or agreement to which the Company is a party or by
which the Company or any of the Company' assets or properties is
bound, or (iii) any judgment, injunction, order, writ or decree
of any court, arbitrator, Government or Governmental Agency by
which the Company or any of its assets or properties is bound.
10.9. Legal Proceedings. There is no action, suit,
proceeding, claim, arbitration, or investigation by any
Government, Governmental Agency or other Person (i) pending to
which the Company is a party, (ii) threatened against or relating
to the Company or any of the Company' assets or businesses, (iii)
challenging the Company's right to execute, acknowledge, seal,
deliver, perform under or consummate the transactions
contemplated by this Agreement, or (iv) asserting any right with
respect to any of the Stock, and there is no basis for any such
action, suit, proceeding, claim, arbitration or investigation.
10.10. Tax Matters. The Company has not duly and timely
filed with all appropriate Governmental Agencies, all tax
returns, information returns, and reports (collectively, the "Tax
Filings") required to be filed by the Company. The Company has
not filed any state or federal income tax returns or paid any
state or federal income taxes since at least 1994. The Company's
fiscal and tax year ends on December 31st.
10.11. Employees. The Company has hired no employees
and has no liability to withhold for or to pay to the State of
Colorado or the federal government, any state income tax, federal
income tax, FICA, head tax, or any other taxes required or
permitted to be withheld from an employee's pay by the State of
Colorado, the federal government, or any other governmental or
quasi-governmental agency or authority.
10.12. Financial Statements; Undisclosed Liabilities.
The Company has not prepared financial statements since 1994.
The Company's only known asset consists of the Accelr8
Certificates. No Seller Affiliate knows of any Company
liabilities or obligations, whether occurred, absolute,
contingent, or otherwise. The Seller knows of no basis for
assertion against the Company of any claim, liability, or
obligation other than its liability to the law firm of Pendleton,
Friedberg, Wilson & Hennessey, P.C. for legal fees, costs and
interest thereon in the total amount of $15,230.06 as of the date
of this Agreement, any liability to which it may be subject for
failure to fulfill its obligations to file SEC Reports, to
provide reports to stockholders of the Company and to file annual
income tax returns.
10.13. SEC Reports. The Company has not filed any
reports with the Securities and Exchange Commission (the "SEC")
since the Company's annual report on Form 10-K for the year ended
October 31, 1993 (the "Form 10-K") and the Company's quarterly
report on Form 10-Q for the period ended January 24, 1994 (the
Form 10-Q"). No other reports required to be filed by the SEC
have been filed since January 24, 1994.
10.14. Cessation of Company Operations. The Company has
not conducted active operations since January of 1994, so the
current financial status of the Company does not materially
vary from that disclosed in the Form 10-K and the Form 10-Q,
except as stated in Section 10.12 above.
10.15. Relevancy of SEC Reports. The financial
statements attached to the Company's most recently filed Form 10-
K and the Form 10-Q have not materially changed, except as stated
in Section 10.12 above. The Company has good and marketable
title to the properties described in said reports, free and clear
of any and all security interests, agreements, restrictions,
claims, liens, pledges and encumbrances of any nature or kind.
Except as noted in Section 10. 12 above, since the Form 10-K and
the Form 10-Q have been filed, the Company has not incurred any
liability, contingent or otherwise, nor any liability for taxes,
long-term commitments, or unrealized or unanticipated losses.
10.16. Insurance. The Seller Affiliates are not aware
of any insurance policies of the Company that have been in effect
since RUSAH acquired the Stock. The Company currently does not
maintain any insurance policies.
10.17. Bank Accounts and Safe Deposit Arrangements. The
Seller Affiliates have no knowledge of the checking accounts,
savings accounts, or other bank accounts and safe deposit boxes
that have been owned by or held for the benefit of the Company
since RUSAH acquired the Stock, nor do they know the names of all
persons authorized to withdraw funds or other property from, or
otherwise deal with, such accounts and safe deposit boxes. The
Seller Affiliates are not aware of any such accounts or safe
deposit boxes currently maintained by the Company.
10.18. Service Contracts. The Seller Affiliates have no
knowledge of any service, utility, supply, maintenance and
employment contracts, agreements, and other continuing
contractual obligations (collectively the "Service Contracts")
affecting the ownership or operation of the Company in effect as
of the Closing Date.
10.19. Statutory Transfer Warranties. The warranties of
transfer set forth in C.R.S. Section 4-8-108 of the Uniform
Commercial Code - Investment Securities are hereby expressly
incorporated herein and made by each Seller Affiliate.
II. AFFIRMATIVE COVENANTS OF SELLER AFFILIATES.
11.1. Delivery of Corporate Records. At Closing, the
Seller and RUSAH shall deliver to the Purchaser all of the
originals of the Company's Corporate Records, Tax Filings, and
all other files, contracts, and paperwork pertaining to the
Company's business in their possession.
11-2. Delivery of Legal Opinion. At Closing, the Seller
shall deliver to the Purchaser an opinion of Seller's legal
counsel, in form reasonably satisfactory to Purchaser, opining
favorably as to the matters set forth in Section 10.1.
12. NEGATIVE COVENANTS OF SELLER AFFILIATES.
12.1. No Brokerage. Seller has not incurred any
obligation or liability, contingent or otherwise, for brokerage
fees, finder's fees, agent's commissions, or the like in
connection with this Agreement or the transactions contemplated
hereby.
12.2. Dividends. Seller will not permit the Company to
pay any dividends on, or make any distribution with respect to,
the Stock.
12.3. Other Payments To Seller. Seller shall not receive any
payments or disbursements from the Company prior to Closing.
12.4. Prohibited Actions. Without the prior consent of
Purchaser, the Seller will not enter into any transactions nor
permit the Company to take or fail to take any actions, that
would result in any of the representations or warranties set
forth in Section 10 not being true and correct in all material
respects on the Closing Date.
12.5. Contracts. Seller will not permit the Company to enter into
any third party contracts, without the prior consent of the Purchaser.
12.6. Loans or other Indebtedness. Seller will not permit the Company
to enter receive any loans or to incur any other indebtedness, without the
prior consent of the Purchaser.
13. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants to Seller as of the date
hereof, and as of the Closing Date, that:
13.1. Validity of Agreement. The Purchaser is a limited
liability company in good standing with the State of Colorado.
On or prior to closing, it agrees to deliver to the Seller a
complete and correct copy of its Articles of Organization,
certified by the Secretary of State of Colorado, and a
certificate if the Secretary of State of Colorado indicating that
it is in good standing with the State of Colorado. The Purchaser
has the legal capacity and authority to enter into this
Agreement. This Agreement is a valid and legally binding
obligation of the Purchaser and is fully enforceable against the
Purchaser in accordance with its terms, except as such
enforceability may be limited by general principles of equity,
bankruptcy, insolvency, moratorium and similar laws relating to
creditors rights generally.
13.2. Authorization and Validity of Documents. The
execution, acknowledgment, sealing, delivery, and performance of
this Agreement by the Purchaser, and the consummation by the
Purchaser of the transactions contemplated hereby, have been duly
executed, acknowledged, sealed and delivered by the Purchaser and
constitute legal, valid, and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance with
their terms, except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors rights generally.
13.3. Investment Intent. The Purchaser is acquiring the
Stock for investment only, for the Purchaser's own account, and
not with a view to, for offer for sale or for sale in connection
with, the distribution or offer thereof. The Stock is not being
purchased for subdivision or fractionalization thereof; and the
Purchaser has no contract, undertaking, agreement or arrangement
with any Person to sell, hypothecate, pledge, donate or otherwise
transfer (with or without consideration) to any such person any
of the Stock which the Purchaser is acquiring hereunder, and the
Purchaser has no present plans or intention to enter into any
such contract, undertaking, agreement or arrangement.
13.4. No Brokerage. The Purchaser has not incurred any
obligation or liability, contingent or otherwise, for brokerage
fees, finder's fees, agent's commissions, or the like in
connection with this Agreement or the transactions contemplated
hereby.
13.5. Responsibility for Liabilities of the Company.
The Purchaser agrees to cause the Company to pay all legal fees
due and outstanding to the law firm of Pendleton, Friedberg,
Wilson & Hennessey, P.C. (currently $15,230.06) at the Closing.
The Purchaser agrees to take responsibility for other obligations
of the Company, including the Company's delinquency in its
filings of income tax returns and SEC filings, and shall
indemnify the Seller and RUSAH against any and all liability for
such obligations.
14. INDEMNIFICATIONS AND GUARANTIES.
14.1. Indemnification by Seller Affiliates Regarding
this Agreement. The Seller Affiliates shall defend, indemnify,
and hold harmless the Purchaser from and against any and all
claims, liabilities, suits, actions, proceedings, damages,
losses, costs, and expenses, of every kind and nature arising out
of, resulting from, or in connection with:
a. Any misrepresentation or breach by Seller
Affiliates of any representation or warranty contained in this
Agreement; or
b. Any nonfulfillment, failure to comply or breach by Seller
Affiliates of or with any covenant, promise or agreement of the Seller
contained in this Agreement.
14.2. Indemnification By Purchaser Regarding this
Agreement. The Purchaser shall defend, indemnify, and hold
harmless the Seller from and against any and all claims,
liabilities, suits, actions, proceedings, damages, losses, costs,
and expenses, of every kind and nature arising out of, resulting
from, or in connection with:
a. Any misrepresentation or breach by Purchaser of
any representation or warranty contained in this Agreement; or
b. Any nonfulfillment, failure to comply or breach
by Purchaser of or with any covenant, promise or agreement of the
Purchaser contained in this Agreement.
15. FIRM-UP REQUEST AND TERMINATION
15.1. General Statement. Until all contingencies and
conditions precedent (collectively, the "Contingencies") set
forth in this Agreement have been waived or satisfied, the Seller
reserves the right to continue to offer the Stock for sale,
including the marketing of the Stock through agents and/or by the
placing of advertising in an effort to procure another purchaser
of the Stock.
15.2. Bone Fide Offer. If, at any time, the Seller
receives a bona fide written offer to purchase the Stock which
the Seller wishes to accept the Seller will promptly provide
written notice thereof to the Purchaser, which notice (the "Firm-
Up Notice") will state that the Purchaser has five days within
which to deliver to Seller a Firm-Up Commitment.
15.3. Issuance of Firm-Up Commitment. The Purchaser
shall have five days from delivery of a Firm-Up Notice to issue
and deliver to Seller its Firm-Up Commitment. If Purchaser fails
to timely issue and deliver its Firm-Up Commitment, this
Agreement shall be terminated, the Earnest Money Deposit shall be
delivered to Purchaser, neither party shall have any continuing
rights, obligations, or liabilities hereunder, and Seller shall
be free to sell the Stock to any Person, including, without
Stations the Person that made the bone fide offer.
15.4. Description of the Firm-Up Commitment. The Firm-
Up Commitment shall be a written statement issued by Purchaser to
Seller that unconditionally waives any and all unsatisfied
Contingencies and expressly acknowledges that Purchaser is
unconditionally required to Close its purchase of the Stock in
accordance with Sections 2 and 6 of this Agreement.
15.5. Effect of the Firm-Up Commitment. By issuance of
a Firm-UP Commitment, Purchaser shall unconditionally and
irrevocably waive all Contingencies set forth in this Agreement.
16. DEFAULT.
If any obligation or covenant is not performed as herein
provided, there shall be the following remedies:
16.1. Seller Remedy. If Purchaser defaults in its
obligation to purchase the Stock on the Closing Date, then the
Earnest Money Deposit shall be delivered by the Escrow Agent to
Seller to be retained by Seller as LIQUIDATED DAMAGES, in which
event the Purchaser's right to acquire the Stock and other things
of value hereunder shall terminate. The Seller Affiliates shall
have no right to an action for specific performance or for money
damages or to any other remedy except the payment of such
LIQUIDATED DAMAGE amount. The parties acknowledge that the
damages of the Seller's Affiliates because of purchaser's default
hereunder are and would be difficult to ascertain, including
costs of negotiating and drafting this Agreement, costs of
cooperating in satisfying conditions to Closing, costs or seeking
another buyer, opportunity costs in keeping the Stock out of the
marketplace, and other costs incurred in connection therewith.
Purchaser and Seller agree that the amount of the Earnest Money
Deposit represents a reasonable estimate of Seller's damages.
The remedy set forth in this Subsection 16.1 shall and will be
the SELLER AFFILIATES' SOLE AND ONLY REMEDY for Purchaser's
default and the Seller Affiliates expressly waive the remedies of
specific performance and additional damages.
16.2. Purchaser Remedies. If Seller is in default,
Purchaser may elect to treat this Agreement as terminated, in
which case, the Earnest Money Deposit and all payments and things
of value received hereunder shall be returned to Purchaser and
Purchaser may recover such damages as may be proper, or Purchaser
may elect to treat this contract as being in full force and
effect and Purchaser shall have the right to specific
performance, injunctive relief, and damages. The parties hereto
acknowledge that the Stock is unique; that any claim for monetary
damages may not constitute an adequate remedy; and that it may
therefore be necessary for the Purchaser's protection and to
carry out the terms of this Agreement for Purchaser to apply for
the specific performance of the provisions hereof or for
injunctive relief. It is accordingly hereby agreed by the Seller
Affiliates that no objection to the form of the action or the
relief prayed for in any proceeding for specific performance of
this Agreement shall be raised by any Seller Affiliate, in order
that such relief may be expeditiously obtained by the Purchaser.
17. MISCELLANEOUS.
17.1. Survival of Representations, Warranties, and
Agreements. All of the representations, warranties, covenants,
promises and agreements of the parties contained in the Agreement
(or in any document delivered or to be delivered pursuant to this
Agreement or in connection with the Closing) shall survive the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
17.2. Survival. All notices, requests, demands,
consents, and other communications which are required or may be
given under this Agreement (collectively, the "Notices") shall be
in writing and shall be given either (a) by personal delivery
against a receipted copy, or (b) by certified or registered U.S.
mail, return receipt requested, postage prepaid, to the following
addresses:
(i) If to Seller:
c/o Tamiya Watanabe
Nishi-Shinbashi
YS Bldg, 4F
2-Chome
Minato-Ku, Tokyo 105, Japan
With a copy to:
Nancy R. Crow, Esq.
Pendleton, Friedberg, Wilson & Hennessey, P.C.
303 E. 17th Avenue, Suite 1000
Denver, Colorado 80203
U.S.A.
(ii) If to other Seller Affiliates: (See Address
List Attached hereto):
(iii) If to Purchaser:
Robert J. Guerra
c/o Kleinman, Guerra & Company, P.C.
5650 Greenwood Plaza Boulevard, Suite 107
Englewood, CO 80111.
With a copy to:
Stephen A. Maguire, Esq.
Maguire & Rabun, L.L.C.
5650 Greenwood Plaza Boulevard, Suite 107
Englewood, CO 80111.
or to such other address of which written notice in accordance
with this Section 17.2 shall have been provided by such party.
Notices may only be given in the manner hereinabove described in
this Section 17.2 and shall be deemed received when given in such
manner.
17.3. Entire Agreement. This Agreement (including the Exhibits
hereto) constitutes the full, entire and integrated agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior negotiations, correspondence, understandings, and agreements among the
parties hereto respecting the subject matter hereof.
17.4. Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, and their respective
heirs, personal and legal representatives, guardians, successors and, in the
case of Purchaser, its permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights, remedies,
obligations, or liabilities.
17.5. Severability. Any provision of this Agreement
which is held by a court of competent jurisdiction to be
prohibited or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability, without invalidating or
rendering unenforceable the remaining provisions of this
Agreement.
17.6. Amendment; Waiver. No provision of this Agreement
may be amended, waived, or otherwise modified without the prior
written consent of all of the parties hereto. No action taken
pursuant to this Agreement including any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by
the party taking such action of compliance with any
representation, warranty, covenant or agreement herein contained.
The waiver by any party hereto of a breach of any provision or
condition contained in this Agreement shall not operate or be
construed as a waiver of any subsequent breach or of any other
conditions hereof.
17.7. Section Headings. The section and other headings
contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
17.8. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original and all of which together shall be deemed to be one
and the same instrument.
17.9. Applicable Law. This Agreement is made and
entered into, and shall be governed by and construed in
accordance with, the laws of the State of Colorado.
17.10. No Waiver. No course of dealing and no delay on
the part of any party hereto in exercising any right, power or
remedy shall operate as a waiver thereof or otherwise prejudice
its rights, powers or remedies, and no right, power or remedy
referred to herein or now or hereafter available at law, in
equity, by statute or otherwise.
17.11. Litigation Costs. In the event of any litigation
arising out of this Agreement, the court shall award to the
prevailing party all reasonable costs and expenses, including
attorney fees.
17.12. Further Assurances. After the Closing, the
Seller agrees to execute, acknowledge, seal and deliver, without
additional consideration, such further assurances, instruments
and documents, and to take such further actions, as the Purchaser
may reasonably request in order to fulfill the intent of this
Agreement and the transactions contemplated hereby, provided that
Purchaser pays all costs to be incurred in conjunction therewith.
17.13. Certain Definitions. As used throughout this
Agreement, the following terms have the following meanings:
"Person" means an individual, partnership, corporation,
trust, unincorporated organization, Government, or Government
Agency.
"Governments" means any federal, state or local government.
"Governmental Agencies" means any agency, bureau, commission
or instrumentality of any Governments.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement under seal, with the intention of making
it a sealed instrument, on the date first above written.
SELLER AFFILIATES: SELLER:
/s/ Tamiya Watanabe
_____________________
Tamiya Watanabe
RABEX USA HOLDINGS, INC.,
a Colorado corporation
/s/Fukumitsu Takahashi
By:______________________
Name:
Title:
/s/ Kaoru Konno
__________________________
Kaoru Konno
/s/ Nagao Fujiwara
__________________________
Nagao Fujiwara
/s/ Fukumitsu Takahashi
__________________________
Fukumitsu Takahashi
PURCHASER: SATELLITE INVEST GROUP, LLC
a Colorado limited liability company
/s/ Robert J. Guerra
By:________________________
Name: Robert J. Guerra
Title: Manager
LIST OF EXHIBITS
(To be attached pursuant to Section 5 and Section 8)
A Form of the Secured Note
B Form of the Pledge Agreement
C Form of the Unsecured Note
Exhibit A to Stock Purchase Agreement
SECURED NOTE
$300,000.00 July 14, 1998
(actual date)
FOR VALUE RECEIVED, Satellite Investment Group, LLC, a
Colorado limited liability company ("Maker") promises to pay to
the order of Tamiya Watanabe ("the Lender") at the office Of
Pendleton, Friedberg, Wilson & Hennessey., P.C., 303 E. 17th
Avenue, Suite 1000, Denver, Colorado 80203., or at such other
place as the Holder hereof may in writing designate, in lawful
money of the United States of America, the principal sum of Three
Hundred Thousand and No/100 Dollars ($300,000.00), together with
interest thereon and in accordance with the terms and conditions
specified below.
1. DEFINITIONS.
a. "Company" means Solar Satellite Communication, Inc.,
a Colorado corporation.
b. "Default Rate" means 12% per annum.
c. "Event of Default" means each and every event
specified in Section 5 of this Secured Note.
d. "Holder" means the payee, or an assignee or other
endorsee of this Note who is in possession of it, or the bearer thereof if
this Note is at the time payable to the bearer.
e. "Maturity Date" means October 14, 1998 (three months from the
issuance date).
f. "Security Agreement" means the Pledge And Security Agreement of
even date herewith wherein Maker has granted to Lender a security
interest in and to the Shares to secure payment of this Note.
g. "Shares" means the three million eight hundred twenty-five
thousand (3,825,000) shares of common stock of the Company owned by Debtor.
2. NON-DEFAULT INTEREST.
Interest will be charged on the unpaid principal balance of this Note
prior to acceleration or maturity at a rate of eight percent (8%) per annum,
to be calculated on the basis of a 365 day year
3. PAYMENTS TERMS.
Maker shall have the right, at any time and from time to
time, without premium or penalty, to Prepay the Principal balance
hereof in whole or in part. On the Maturity Date, the Maker shall
pay in full the outstanding principal balance of this Secured
Note and all accrued interest.
4. SECURITY.
This Note is secured by the Security Agreement of even date
herewith, reference to which is hereby made for other rights of
the parties.
5. EVENTS OF DEFAULT.
Any or all of the following shall constitute Events of Default hereunder:
a. Failure to Pay this Note in full on the Maturity Date.
b. The occurrence of an Event of Default under the Security Agreement
which remains uncured at the expiration of the grace period provided therein.
Should any Event of Default occur, the Holder of this Note,
at the Holder's option, may declare all sums of principal
outstanding hereunder to be immediately due and payable without
presentment demand, protest, or notices of protest, dishonor,
nonpayment, or maturity, all of which are hereby expressly
waived. The Maker agrees to pay all costs and expenses,
including reasonable attorneys' fees, incurred by the Holder in
connection with the enforcement of this Note or the protection or
preservation of any rights of the Holder hereunder or under the
Security Agreement (regardless of whether legal proceedings are
in fact commenced), including without limitation, reasonable
attorneys' fees and costs and expenses incurred by the Holder in
connection with any insolvency, bankruptcy, reorganization,
arrangement or other similar proceedings involving the Maker,
which in any way affect the exercise by the Holder of its rights
and remedies under this Note or the Security Agreement, or other
document, instrument or agreement securing this Note, and, post-
judgment and appellate costs and expenses.
6. DEFAULT RATE.
If this Note is not paid in full when it becomes due,
whether on its Maturity Date, or prior thereto upon acceleration,
then interest on this Note shall begin to be computed and paid,
from and after that due date, at the Default Rate, calculated on
the basis of a 365 day year with accruals daily.
7. ELECTION OF REMEDIES.
Enforcement by the Holder of this Note, or any term or
provision of this Note, or of the Security Agreement shall not
constitute an election by the Holder of remedies so as to
preclude the exercise of any other remedy available to the
Holder.
8. NO WAIVER.
No delay on the part of the Holder of the Note in the
exercise of any Power or right under this Note, under the
Security Agreement, or under any other instrument executed
pursuant hereto, shall operate as a waiver thereof. No waiver,
expressed or implied, of any provision of this Note, or the
Security Agreement securing this Note, or any other instrument
executed pursuant hereto, shall be deemed to constitute a
continuing waiver of such provision nor a waiver of any other
provision.
9. SEVERABILITY OF PROVISIONS.
In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal or
unenforceable, in whole or in part or in any respect, or in the
event that any one or more of the provisions of this Note operate
or would prospectively operate to invalidate this Note, than and
in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other
provision of this Note, and the remaining provisions of this Note
shall remain operative and in full force and effect and shall in
no way be affected, prejudiced or disturbed thereby.
10. COLORADO LAW APPLICABLE.
This Note shall be construed and enforced in accordance with
the laws of the State of Colorado.
MAKER: SATELLITE INVESTMENT GROUP, LLC
a Colorado limited liability company
/s/ Robert J. Guerra
By:______________________________
Name: Robert J. Guerra
Title: Manager
Exhibit B To Stock Purchase Agreement
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT"), is
entered into this ____ day of ________, 1998, by and between Tamiya Watanabe
and Satellite Investment Group, LLC, a Colorado limited liability
company.
I . DEFINITIONS Throughout this Agreement, and unless the
context otherwise requires, the word or words set forth below
within the quotation marks shall be deemed to mean the words
which follow them:
1.1. "Certificate" means any stock certificate
representing a Share in the possession of the Custodian,
including, without limitation, the Stock Certificates and the
Replacement Certificates.
1.2. "Collateral" means the Shares, any and all
dividends (monetary, stock, liquidating or otherwise) in respect
thereto, and any and all securities, instruments, documents,
contract rights, and other property which Debtor may become
entitled to with respect thereto, and all cash or noncash
proceeds thereof.
1.3. "Company" means Solar Satellite Communication,
Inc., a Colorado corporation.
1.4. "Creditor" means Tamiya Watanabe and any successor
holder of the Secured Note.
1.5. "Creditor's Address" means is Nishi-Shinbashi, YS
Bldg, 4F, 2-Chome, Minato-Ku, Tokyo 105, Japan.
1.6. "Custodian" means Pendleton, Friedberg, Wilson & Hennessey, P.C.
1.7. "Custodian's Address" means 303 E. 17th Avenue, Suite 1000,
Denver, Colorado 80203.
1.8. "Debtor" means Satellite Investment Group, LLC , a
Colorado limited liability company.
1.9. "Debtors Address" means 5650 Greenwood Plaza
Boulevard, Suite 107, Englewood, CO 80111.
1.10. "Dividend" shall mean any dividend or other kind of
distribution hereinafter made to Debtor as a shareholder of the Company.
1.11. "Effective Date"means July l4,1998(or the actual date of
Closing).
Creditor to the Debtor pursuant to the Stock Purchase Agreement.
2.2. Pursuant to the Stock Purchase Agreement, the
Creditor made the Purchase Money Loan to Debtor to partially
finance Purchaser's purchase of the Stock.
2.3. To evidence the Purchase Money Loan, the Debtor
issued the Secured Note to the order of the Creditor.
2.4. As required by the Stock Purchase Agreement, and to
secure the Debtor's Obligations to Creditor, the parties are
entering into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
expressly confessed and acknowledged, the parties hereto do
hereby covenant and agree as follows:
3. REPRESENTATIONS AND WARRANTIES
Debtor represents and warrants to Creditor, and such
representations and warranties shall be continuing
representations and warranties, so long as any Obligations shall
remain outstanding, this Agreement and any document or instrument
delivered in connection herewith and the @actions contemplated
hereby or thereby have been duly authorized, and/or executed and
delivered, as appropriate; and this Agreement and such other
document and instruments constitute valid and legally binding
obligations of Debtor and are enforceable against Debtor in
accordance with their respective terms.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
4.1. No Prior Pledges or Mortgages. Debtor hereby
represents and warrants and covenants that Debtor has not granted
any prior security interests, mortgages, charges, liens, pledges
or encumbrances of any nature or kind against the Collateral.
4.2. Validity of Agreement. The Debtor has the legal
capacity and authority to enter into this Agreement. This
Agreement is a valid and legally binding obligation of the Debtor
and is fully enforceable against the Debtor in accordance with
its terms, except as such enforceability may be limited by
general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors rights generally.
4.3. Agreement Not in Conflict with Other Instruments:
Required Approvals Obtained. The execution, acknowledgment,
sealing, delivery, and performance of this Agreement by the
Debtor will not (a) violate or require any registration,
qualification, consent, approval, or filing under, (i) any law,
statute, ordinance, rule or regulation (hereinafter collectively
referred to as "Laws") of any Governments or Governmental
Agencies, or (ii) any judgment, injunction, order, writ or decree
of any court, arbitrator, Government or Governmental Agency by
which the Company or any of its assets is bound; (b) conflict
with, require any consent, approval, or filing under, result in
the breach or termination of any provision of constitute a
default under, result in the acceleration of the performance of
the Debtor's obligations under, or result in the creation of any
claim, security interest, lien, charge or encumbrance upon any of
the debtor's properties, assets, or businesses pursuant to, (i)
the Debtor's Articles of organization or Operating Agreement,
(ii) any indenture, mortgage, deed of trust, license, permit
approval, consent, franchise, lease, contract, or other
instrument or agreement to which the Company is a party or by
which the Debtor or any of the Debtor's assets or properties is
bound, or (iii) any judgment, injunction, order, writ, or decree
of any court, arbitrator, Government or Governmental Agency by
which the Debtor or any of its assets or properties is bound.
4.4. Legal Proceedings There is no action, suit,
proceeding, claim, arbitration, or investigation by any
Government, Governmental Agency or other Person (i) pending to
which the Debtor is party, (ii) threatened against or relating to
the Debtor or any of the Debtor's assets or businesses, (iii)
challenging the Debtor's right to execute, acknowledge, seal,
deliver, perform under or consummate the transactions contemplated by this
Agreement, or (iv) asserting any right with respect to any of the Shares, and
there is no basis for any such action, suit, proceeding, claim, arbitration
or investigation.
5. GRANT OF SECURITY INTEREST
To secure the payment and performance of the Obligations,
debtor hereby pledges, assigns and transfers to Creditor, and
grants to Creditor a continuing security interest in an to all of
the Collateral.
6. GENERAL COVENANTS
6.1. No Pledge. Debtor covenants and agrees that so
long as any Obligations remain outstanding, the debtor shall not
mortgage, pledge grant or permit to exist a security interest in,
or a lien or encumbrance upon any of the Collateral except in
favor of the Creditor.
6.2. Preservation of Creditor's Security Interest. Debtor shall:
6.2.1. Permit Creditor, through his authorized
attorneys, accountants and representatives, to inspect and
examine the books, accounts, records, ledgers and assets of every
kind and description of the debtor;
6.2.2. Pay to the Creditor, as a payment on the
Secured Note, any Dividends he receives as a result of his
ownership of the Shares;
6.2.3. At any time and from time to time upon request
of Creditor, execute and deliver to Creditor, in form and
substance satisfactory to Creditor, such documents as Creditor
shall deem necessary or desirable to perfect or maintain
perfected the security interest of Creditor in the Collateral or
which may be necessary to comply with the provisions of the law
of the State of Colorado or the law of any other jurisdiction in
which Debtor may then be conducting business or in which any of the
Collateral may be located;
6.2.4. To pay or cause to be paid, prior to the date
they would become delinquent if not paid, any and all taxes,
assessments and other governmental charges whatsoever levied upon
or assessed or charged against the Collateral, or any part
thereof, including any accrued interest, cost and/or penalty
thereon;
6.2.5. To pay and satisfy or cause to be paid and
satisfied as the same become due and payable all claims, liens
and encumbrances affecting or purporting to affect the title to,
or which may be or appear to be liens on, the Collateral, or any
part thereof;
6.2.6. To protect, preserve and defend the Collateral
and title thereto and to notify Creditor of all claims and
demands of all persons at any time claiming the Collateral or any
interest therein; and
6.2.7. To do such other acts in a timely and proper
manner which may be reasonably necessary to protect and preserve
the Collateral as security hereunder.
7. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event of Default
hereunder:
7.1. Note Default. An Event of Default under the Note;
7.2. Default Under This Agreement. The Debtor shall
fail to perform or observe any term, covenant, or agreement
contained in this Agreement on its part to be performed or
observed and such failure shall remain unremedied for thirty (30)
calendar days after written notice thereof shall have been given
to the Debtor by the Creditor.
7.3. Misrepresentation. Any representation, warranty,
certificate, schedule or other information made or furnished by
any Debtor to Creditor herein or pursuant hereto is or shall be
untrue or materially misleading;
7.4. Default under Renewals and Extensions. Any event
of default as defined in any note, guaranty, or security
agreement executed by Debtor as a renewal, substitute, extension,
modification, or amendment to this Security Agreement, or the
Secured Note;
7.5. Dissolution or Liquidation. Any proceeding is
filed or commenced by or against any Debtors; or any Debtors dies
or is adjudicated to be legally incompetent;
7.6. Bankruptcy. If Debtor shall file a voluntary
petition in bankruptcy or shall be determined to be a "debtor"
within the meaning of the United States Code, or shall be granted
an order for relief, adjudicated a bankrupt or insolvent or shall
file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under the present or any future
applicable federal, state or other statute or law relative to
bankruptcy, insolvency or other relief for debtors, or shall seek
or consent to or acquiesce in the appointment of any trustee,
receiver, conservator or liquidator of Debtor (as applicable) or
of all or any substantial part of its properties or the
Collateral (the term "acquiesce", as used in this Section 6.1.6,
includes, but it is not limited to, the failure to file a
petition or motion to vacate or discharge any order, judgment or
decree within thirty (30) days after entry of such order,
judgment or decree); or
7.7. Acceleration Right. If any Event of Default shall
occur, then or at any time thereafter, while such Event of
default shall continue, Creditor may declare all Obligations to
be due and payable, without notice, protest, presentment or
demand, all of which are hereby expressly waived by Debtor.
8. RIGHTS AND REMEDIES. Upon the occurrence of an Event of
Default, irrespective of whether Creditor exercises his option to
declare all Obligations secured hereby immediately due and
payable, he may, at his option and in his sole discretion,
without any prior notice or demand to or upon Debtors, do one or
more of the following:
8.1. Foreclose. Foreclose or otherwise enforce
Creditor's security interest in any manner permitted by law, or
provided for in this Security Agreement;
8.2. Sale of Collateral. Sell, lease or otherwise
dispose of any Collateral at one or more public or private sales,
whether or not such Collateral is present at the place of sale,
for cash or credit or future delivery, on such terms and in such
manner as Creditor may determine; in the event of a sale, lease
or other disposition of the Collateral:
8.2.1. Any person, including Debtor and Creditor, may
purchase at the sale;
8.2.2. If in the opinion of Creditors counsel, a
public sale of the Shares of Stock might require registration
under the Securities Act of 1933, as amended, or under any other
federal or state statute governing the registration or
qualification of securities being sold to the public, Creditor
and Debtors agree that a private sale of the Shares of Stock will
be commercially reasonable and Creditor, in such circumstances,
may sell the Shares of Stock in a private sale;
8.2.3. In the event Creditor elects to sell or
otherwise dispose of the Shares of Stock, the parties agree that
notwithstanding such other commercially reasonable conduct as may
be followed by Creditor, the following procedures shall comprise
and constitute a commercially reasonable sale (the "Sale"):
(a) Creditor shall mail to Debtor written notice of the
Sale not later than thirty (30) days prior to such Sale;
(b) Once per week during the four (4) weeks immediately
preceding the Sale, Creditor will publish notice of the Sale in: (i) the
Western edition of The Wall Street Journal; (ii) the Legal Notice section of
the Rocky Mountain News; or (iii) the Legal Notice section of the Denver
Post. The notice shall specify that the Shares of Stock will be sold only to a
single purchaser for his or its own account and not with a view to the resale
or distribution thereof and that the purchaser will be restricted from
reselling the Shares without compliance with the Securities Act of 1933 and
applicable state securities laws. The notice will also advise prospective
purchasers as to where they may obtain financial and other information with
respect to the venture;
(c) Upon receipt of any written request to do so,
Creditor will make available to any bona fide prospective purchaser for
inspection, within five (5) days following receipt of such request and during
reasonable business hours, such records and documents as shall be necessary
to enable the prospective purchaser to prepare his or its bid;
(d) The Sale may only be made to a single
purchaser who is financially sophisticated and who can afford the
risk of the highly speculative investment which purchase of the
Shares of Stock would entail. As a condition of sale, Creditor
in his absolute discretion may require the purchaser to represent
to Creditor that the Shares of Stock are being acquired for the
purchaser's own account and not with a view to resale or
distribution, and that the Shares of Stock will not be resold
unless pursuant to the Securities Act of 1933 and/or applicable
state securities laws or under a valid exemption or exemptions
from such registration.
(e) The sale procedures set forth in this
subsection 8.2.3. are not intended to delineate the minimum
procedures that must be followed by Creditor in order to
establish that a sale is commercially reasonable, but rather are
only intended to state a particular procedure which both Debtor
and Creditor agree is commercially reasonable. Under no
circumstances shall this paragraph be deemed to preclude the
Creditor from selling the Collateral in such other commercially
reasonable manner as Creditor may determine.
8.3. Cancellation of Sales. Notwithstanding Paragraph
8.2 hereof, in the event Creditor offers to sell the Shares,
Creditor will be under no obligation to consummate a sale if, in
his reasonable business judgment, none of the offers received by
him reasonably approximates the fair value of the Shares;
8.4. Application of Funds. Creditor shall apply the
proceeds of any sale or disposition hereunder to payment of the
following: (a) the expenses of such sale or disposition together
with reasonable attorneys' fees, and the actual cost of
publishing, recording, mailing and posting notice; (b) the cost
of any search and/or other evidence of title procured in
connection therewith and any transfer tax on any deed or
conveyance; (c) all sums expended under the terms hereof, not
then repaid, with accrued interest in the amount provided herein;
(d) all other Obligations secured hereby; and (e) the remainder,
if any, to the Person or Persons legally entitle thereto;
8.5. Additional Remedies. The rights, powers and
remedies of Creditor as a secured party under this Security
Agreement shall be in addition to all rights, powers and remedies
given to Creditor by virtue of the Colorado Uniform Commercial
Code or any other statute or rule of law, the Note, or any other
agreement, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently
without impairing Creditors security interest in the Collateral.
Any forbearance or failure or delay by Creditor in exercising any
right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy is specifically waived
in a writing executed by Creditor. Debtor waives any right to
require Creditor to proceed against any person or to exhaust any
Collateral or to pursue any remedy in Creditor's power.
8.6. Cumulative Remedies. No remedy herein conferred
upon or reserved to Creditor is intended to be exclusive of any
other remedy herein or by law provided, but each shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing, at law or in equity or by
statute or otherwise. Every power or remedy given by this
instrument to Creditor, or to which Creditor may be otherwise
entitled, may be exercised from time to time and as often as may
be deemed expedient by Creditor, and Creditor may pursue
inconsistent remedies;
8.7. Costs of Enforcement. The Debtor shall pay to
Creditor all costs incurred by Creditor in enforcing her rights
hereunder, including all legal costs and fees, whether or not
legal proceedings are commenced. "Legal costs and fees" means
all reasonable expenses incurred by Creditor, including, travel
expenses, court costs, witness fees and attorneys' fees.
8.8. Acceleration. If any Event of Default shall occur,
then or at any time thereafter, while such Event of Default,
shall continue, Creditor may declare all Obligations to be due
and payable, without notice, protest, presentment or demand, all
of which are hereby expressly waived by Debtor.
9. ASSIGNMENT BY CREDITOR
Creditor may, without notice to the Debtor, assign or
endorse the Secured Note to a third party. In such event, each
and every immediate and successive holder of the Secured Note
shall have the right to enforce this Agreement, by legal action
or otherwise, for its own benefit as fully as if such holder were
herein by name specifically given such rights. Creditor shall
have an unimpaired right to enforce this Agreement for its
benefit to that portion of the Obligations of Debtor as Creditor
has not sold, assigned, transferred or otherwise disposed of.
10. POSSESSION OF COLLATERAL AND SECURED NOTE.
10.1. Duties of Custodian. Between the Effective Date
and the Maturity Date, the Custodian, as the Creditor's agent,
shall hold physical possession of the Certificates and the
Secured Note at the Custodian's Address or at any other safe
place selected by the Custodian.
10.2. Issuance of Replacement Certificate. At Debtor's
request, the Custodian shall cooperate with Debtor in obtaining a
Replacement Certificate from the Company which shows that the
Debtor is the owner of the Shares. Said cooperation shall
include delivering the Stock Certificates to the Company or its
transfer agent for surrender and receiving and holding the
Replacement Certificate. Notwithstanding the foregoing, the
Custodian will not be required to take any actions to assist in
the issuance of a Replacement Certificate, unless the following
conditions are satisfied:
(a) The security interest of the Creditor shall
continuously be attached to the Shares; and
(b) The Custodian is paid, in advance, all of its
costs and expenses incurred in obtaining the Replacement
Certificate, including, without limitation, payment to the
Custodian for its time spent in obtaining the Replacement
Certificate at its normal hourly rates; and
10.3. Surrender of Secured Note and Stock Certificates.
If the Debtor makes payments to the Custodian on behalf of the
Creditor in the aggregate amount of the Secured Note principal
amount on or before the Maturity Date, then the Custodian shall
deliver the Secured Note and Certificates to Debtor.
10.4. Failure To Pay By Maturity Date. If the Debtor
fails to makes payments to the Custodian on behalf of the
Creditor in the aggregate amount of the Secured Note principal
amount on or before the Maturity Date, then the Custodian may
deliver the Secured Note and Certificates to the Creditor or may
otherwise act on Creditor's instructions.
11. GENERAL PROVISIONS.
11.1. Entire Agreement. This Agreement contains the
entire understanding between the parties hereto with respect to
the @actions contemplated herein and such understanding shall not
be modified except in writing signed by or on behalf of the
parties hereto.
11.2. Interpretation and Severability. Wherever
possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law;
should any portion of this Agreement be declared invalid for any
reason in any jurisdiction, such declaration shall have no effect
upon the remaining portions of this Agreement furthermore, the
entirety of this Agreement shall continue in full force and
effect in all other jurisdictions and said remaining portions of
this Agreement shall continue in full force and effect in the
subject jurisdiction as if this Agreement had been executed with
the invalid portions thereof deleted.
11.3. Successor and Assigns. The provisions of this
Agreement shall be binding upon and shall inure to the benefit of
the heirs, administrators, successors and assigns of Creditor and
Debtor, provided, however, Debtor may not assign any of its
rights or delegate any of its obligations hereunder without the
prior written consent of Creditor.
11.4. Colorado Law. This Agreement is and shall be
deemed to be a contract entered into and made pursuant to the
laws of the State of Colorado and shall in all respects be
governed, construed, applied and enforced in accordance with the
laws of said state.
11.5. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute but one
and the same instrument.
11.6. Section Headings. The section headings herein are
included for convenience only and shall not be deemed to be a
part of this Agreement.
12. ASSIGNMENT BY CREDITOR
Creditor may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all
or any part of the Obligations and/or the Creditor's security
interest in the Collateral therefor. In such event, each and
every immediate and successive purchaser, assignee, transferee or
holder of all or any part of the Obligations and/or the
Collateral shall have the right to enforce this Agreement, by
legal action or otherwise, for its own benefit as fully as if
such purchaser, assignee, transferee or holder were herein by
name specifically given such rights. Creditor shall have an
unimpaired right to enforce this Agreement for its benefit to
that portion of the Obligations of Debtor as Creditor has not
sold, assigned, transferred or otherwise disposed of.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement effective as of the date first set forth above.
/s/ Tamiya Watanabe
CREDITOR: __________________________
TAMIYA WATANABE
DEBTOR: SATELLITE INVESTMENT GROUP, LLC
a Colorado limited liability company
/s/ Robert J. Guerra
By:________________________________
Name: Robert J. Guerra
Title: Manager
RECEIPT AND ACCEPTANCE BY CUSTODIAN
The undersigned hereby acknowledges receipt of the Stock
Certificates and agrees to hold the same as agent for the Debtor
pursuant to Section 10 of the foregoing Pledge And Security
Agreement.
PENDLETON, FRIEDBERG, WILSON & HENNESSEY, P.C.
/s/ Nancy R. Crow
By:_____________________________________
Nancy R. Crow, Treasurer
Exhibit C To Stock Purchase Agreement
UNSECURED NOTE
$600,000.00 July 14, 1998 (actual date)
FOR VALUE RECEIVED, Satellite Investment Group, LLC, a
Colorado limited liability company ("Maker") promises to pay to
the order of Tamiya Watanabe ("the Lender") at the office of
Pendleton, Friedberg, Wilson & Hennessey, P.C., 303 E. 17th
Avenue, Suite 1000, Denver, Colorado 80203., or at such other
place as the Holder hereof may in writing designate, in lawful
money of the United States of America, the principal sum of Six
Hundred Thousand and No/100 Dollars ($600,000.00), together with
interest thereon and in accordance with the terms and conditions
specified below.
1. DEFINITIONS.
a. "Accelr8" means Accelr8 Technology Corporation, a Colorado
corporation.
b. "Asset Rehabilitation Agreement" means the Asset Rehabilitation
Agreement dated (actual date of agreement) by and between the Company and the
Maker.
c. "Company" means Solar Satellite Communication, Inc.,
a Colorado corporation
d. "Default Rate" means 12% per annum.
e. "Event of Default" means each and every event specified in
Section 6 of this Secured Note.
f. "Freely Tradeable" the term "Freely Tradeable" shall have the
meaning set forth in Section 1.9 of the Asset Rehabilitation Agreement.
g. "Holder" means the payee, or an assignee or other
endorsee of this Note who is in possession of it, or the bearer
thereof if this Note is at the time payable to the bearer.
h. "Maturity Date" means the later date of: (i) July
14, 1999 (twelve months from the issuance date); or (ii) the
ninetieth (90th) day after the date the Shares become Freely
Tradeable.
i. "Note" means this Unsecured Note.
j. "Shares" means the five hundred twenty seven
thousand (527,650) shares of common stock of Accelr8 owned by the
Company.
<PAGE>
k. "Stock Certificates" means the two stock certificates
issued to the Company to evidence its ownership of the Shares, to
wit: Accelr8 Stock number 1797 issued February 3, 1994, which
originally represented 610,600 shares of Accelr8 Stock and now
represents 152,650 shares of Accelr8 Stock as a result of a 1 for
4 reverse stock split and Accelr8 Stock number 1428 issued
September 14, 1988 which originally represented 1,500,000 shares
of Accelr8 Stock and now represents 375,000 shares of Accelr8
Stock as a result of the 1 for 4 reverse stock split.
2. INTEREST.
No Interest will be charged on this Note until the Maturity
Date. Beginning on the Maturity Date and thereafter until this
Note is paid in full, interest will accrue on the principal
balance at the Default Rate, calculated on the basis of a 365 day
year with accruals daily.
3. PAYMENTS TERMS.
Maker shall have the right, at any time and from time to
time, without premium or penalty, to prepay the principal balance
hereof in whole or in part. On the Maturity Date, the Maker shall
pay in full the outstanding principal balance of this unsecured
note.
4. EVENTS OF DEFAULT.
The failure to pay this Note in full on the Maturity Date
shall constitute an Event of Default hereunder. Should any Event
of Default occur, the Holder of this Note, at the Holder's
option, may declare all sums of principal outstanding hereunder
to be immediately due and payable without presentment, demand,
protest, or notices of protest, dishonor, nonpayment, or
maturity, all of which are hereby expressly waived. The Maker
agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred by the Holder in connection with the
enforcement of this Note or the protection or preservation of any
rights of the Holder hereunder (regardless of whether legal
proceedings are in fact commenced), including without limitation,
reasonable attorneys' fees and costs and expenses incurred by the
Holder in connection with any insolvency, bankruptcy,
reorganization, arrangement or other similar proceedings
involving the Maker, which in any way affect the exercise by the
Holder of its rights and remedies under this Note or other
document, instrument or agreement securing this Note, and, post-
judgment and appellate costs and expenses.
5. NO WAIVER.
No delay on the part of the Holder of the Note in the
exercise of any power or right under this Note, under the
Security Agreement, or under any other instrument executed
pursuant hereto, shall operate as a waiver thereof. No waiver,
expressed or implied, of any provision of this Note, or the
Security Agreement securing this Note, or any other instrument
executed pursuant hereto, shall be deemed to constitute a
continuing waiver of such provision nor a waiver of any other
provision.
6. SEVERABILITY OF PROVISIONS.
In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal or
unenforceable, in whole or in part or in any respect, or in the
event that any one or more of the provisions of this Note operate
or would prospectively operate to invalidate this Note, than and
in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other
provision of this Note, and the remaining provisions of this Note
shall remain operative and in full force and effect and shall in
no way be affected, prejudiced or disturbed thereby.
7. COLORADO LAW APPLICABLE.
This Note shall be construed and enforced in accordance with
the laws of the State of Colorado.
MAKER: SATELLITE INVESTMENT GROUP, LLC
a Colorado limited liability company
/s/ Robert J. Guerra
By:______________________________
Name: Robert J. Guerra
Title: Manager
Exhibit B
APPROVAL OF EXHIBITS AND ASSET REHABILITATION AGREEMENT
Reference is hereby made to that Stock Purchase Agreement entered in to
effective the 21st day of May, 1998 by and among tamiya Watanabe, Rabex USA
Holdings, Inc., a Colorado corporation, Kaoru Konno, Nagao Fujiwara, and
Fukumitsu Takahashi (collectively, the "Seller Affiliates" and Satellite
Investment Group, LLC, a Colorado limited liability company ("Purchaser").
The Seller Affiliates and the Purchaser, acting through their respective
attorneys, hereby approve the attached Secured Note, Pledge Agreement,
Unsecured Note, and agree that the same are to be incorporated into the Stock
Purchase Agreement pursuant to Section 5.3 thereof.
The Seller Affiliates and the Purchaser, acting through their respective
attorneys, hereby approve the attached Asset Rehabilitation Agreement pursuant
to section 8.3 of the Stock Purchase Agreement.
ATTORNEYS FOR SELLER AFFILIATES:
Pendelton, Friedberg, Wilson, & Hennessey, P.C.
/s/ Nancy R. Crow
By:____________________________________
Nancy R. Crow, Treasurer
ATTORNEY FOR PURCHASER:
Maguire and Rabun, L.L.C.
/s/ Stephen A. Maguire
By:____________________________________
Stephen A. Maguire, Member
Attachments are included with Stock Purchase Agreement Exhibit A
