EXHIBIT 4.10
FORM OF
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is effective as of
September 7, 2000 by and between UNIVERSAL BROADBAND NETWORKS, INC., a Delaware
corporation on the one hand (the "COMPANY") and the purchaser set forth on the
signature pages on the other hand (the "PURCHASER").
RECITAL
Under the terms and provisions set forth in this Agreement, the Company
desires hereby to sell, transfer and assign to Purchaser, and Purchaser desires
hereby to purchase and acquire from the Company, an aggregate of
_____________________________ (______) shares of the Company.
AGREEMENT
NOW, THEREFORE, in accordance with the foregoing recital, and AS
CONSIDERATION FOR the mutual covenants and agreements contained herein and for
other good and valuable consideration the receipt and sufficiency of which
hereby are acknowledged, the Company and Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE AND SELL THE SHARES. Subject to the terms set
forth in this Agreement, the Company hereby sells to Purchaser, and Purchaser
hereby purchases from the Company, ___________________ (_______) shares of the
Company's Common Stock (the "SHARES"), at a price of $__ per share (the
"PURCHASE PRICE").
2. STOCK PURCHASE CLOSING; STOCK PURCHASE CLOSING DELIVERIES.
2.1 The closing of the transaction contemplated by this
Agreement (the "STOCK PURCHASE CLOSING") shall occur concurrently with the
execution and delivery of this Agreement.
2.2 As of the Stock Purchase Closing, Purchaser shall own and
be deemed to own the Shares and all of the rights, preferences and privileges of
the Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Purchaser that:
3.1 ORGANIZATION; GOOD STANDING; QUALIFICATION. The Company is
a corporation duly organized, validly existing and in good standing under, and
by virtue of, the laws of the State of Delaware, has all requisite corporate
power and authority to own and operate its properties and assets and to carry on
its business as now conducted and as proposed to be conducted. The Company is
currently not qualified to transact business as a foreign corporation in any
other jurisdictions. The failure to so qualify to transact business will not
have a material adverse effect, however, on the Company's business (as currently
conducted).
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3.2 AUTHORIZATION. All corporate action on the part of the
Company and its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the performance of
all obligations of the Company hereunder has been taken or will be taken before
the Closing.
3.3 VALID ISSUANCE OF SHARES. The Shares, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable.
3.4 DUE EXECUTION AND DELIVERY. The Company has duly executed
and delivered this Agreement.
3.5 ENFORCEABILITY. This Agreement is a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
such terms may be limited or otherwise affected by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
3.6 NO CONFLICT, BREACH OR DEFAULT. The consummation by the
Company of the transaction contemplated by this Agreement, including the
execution and delivery of this Agreement, will not conflict with or result in a
breach of any of the unwaived terms of any agreement or instrument to which the
Company is bound or constitute a default thereunder.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to the Company all of the following:
4.1 ENFORCEABILITY. This Agreement is a valid and binding
obligation of Purchaser, enforceable in accordance with its terms, except as
such terms may be limited or otherwise affected by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
4.2 NO CONFLICT, BREACH OR DEFAULT. The consummation by
Purchaser of the transaction contemplated by this Agreement, including the
execution and delivery of this Agreement, will not conflict with or result in a
breach of any of the unwaived terms of any agreement or instrument to which
Purchaser is bound or constitute a default thereunder.
4.3 SECURITIES LAWS. Purchaser hereby acknowledges, represents
and warrants to the Company, and hereby covenants and agrees to, all of the
following:
(a) INVESTMENT INTENT; CAPACITY TO PROTECT INTERESTS.
Purchaser is purchasing the Shares solely for Purchaser's own account for
investment and not with a view to or for sale in connection with any
distribution of the Shares, and not with any present intention of selling,
offering to sell, granting any participation in or otherwise disposing of or
distributing the Shares, in any transaction other than a transaction exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"). The Purchaser is experienced in making investments in the
unregistered and restricted securities of developing and emerging growth
companies such as the Company. The Purchaser understands that such investments
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(including the Purchaser's investment in the Shares) involve a high degree of
speculation and risk. The Purchaser has such knowledge and experience in
financial and business matters that the Purchaser is capable of evaluating the
merits and risks of the investment in the Company represented by the Shares, by
reason of Purchaser's financial and business experience Purchaser has the
capacity to protect the Purchaser's interests in connection with the Shares. The
Purchaser is financially able to bear the economic risk of the investment
represented by the Shares, including a total loss of such investment.
(b) RELIANCE ON PURCHASER'S REPRESENTATIONS.
Purchaser understands and acknowledges that the Shares will not be registered
under the Securities Act, on the ground that the sale provided for in this
Agreement is exempt from registration under the Securities Act, and that the
Company's reliance on such exemption (or exemptions) is predicated on the
Purchaser's representations that are set forth in this Agreement and either (i)
the "Accredited Investor" Questionnaire attached hereto as EXHIBIT A, or (ii)
the Certificate of Non-U.S. Person, attached hereto as EXHIBIT B.
(c) INFORMATION CONCERNING THE COMPANY. Without
limiting the terms of the investment representations set forth below, the
Purchaser represents that the Purchaser: -
(1) has had an opportunity to ask questions and
receive answers from the Company and its officers and directors regarding
matters relevant to the Company and an investment therein (e.g., as represented
by the Shares), including, without limitation, all reports filed pursuant to the
Securities Exchange Act of 1934, as amended;
(2) has further had the opportunity to obtain
any and all information that the Purchaser deemed and deems necessary to
evaluate the Company and the Purchaser's acquisition of the Shares, as well as
to verify the accuracy of information otherwise provided to the Purchaser; and
(3) has otherwise received all such information
Purchaser deems necessary and appropriate to evaluate the financial risks
inherent in making, and the merits of, an investment in the Shares.
(c) SOPHISTICATED INVESTOR. By reason of Purchaser's
(i) pre-existing substantive relationship with the Company and one or more of
its officers, directors or control persons or (ii) by reason of the Purchaser's
business or financial experience, the Purchaser is capable of evaluating the
merits and risks of the investment represented by the Shares and the merits and
risks of protecting the Purchaser's own interests in connection with such
investment.
(d) SPECULATIVE INVESTMENT. Purchaser represents and
warrants that the nature and amount of the Shares being purchased by Purchaser
are consistent with Purchaser's investment objectives, abilities and resources.
PURCHASER RECOGNIZES THAT THE SHARES ARE A SPECULATIVE INVESTMENT INVOLVING A
HIGH DEGREE OF RISK OF LOSS BY PURCHASER AND THAT PURCHASER COULD LOSE THE
ENTIRE AMOUNT OF PURCHASER'S INVESTMENT IN THE SHARES. PURCHASER IS ABLE TO BEAR
THE ECONOMIC RISK OF PURCHASER'S INVESTMENT IN THE SHARES AND AT THE PRESENT
TIME CAN AFFORD A COMPLETE LOSS OF THAT INVESTMENT.
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4.4 NO VIEW TO SALE OR DISTRIBUTION; NO ADVERTISING OR GENERAL
SOLICITATION. Purchaser represents and warrants to the Company all of the
following:
(a) that the Shares are being acquired by Purchaser
for private investment purposes only and solely for Purchaser's own account, in
Purchaser's own name, and not with a view to or for sale in connection with any
distribution of the Shares to others;
(b) that Purchaser has no present intention to
distribute, sell or otherwise dispose of the Shares;
(c) that the sale of the Shares to Purchaser was not
accomplished by the publication of any written or printed communication, any
pre-recorded telephone communication or any communication spoken on radio,
television or similar communication media; and
(d) that Purchaser has not seen or received any
advertisement or general solicitation with respect to the sale of Company
securities of any kind, including, without limitation, the Shares.
5. RELIANCE ON PURCHASER REPRESENTATIONS, WARRANTIES, ETC. Purchaser
understands that legal counsel for the Company may rely on all of Purchaser's
representations, warranties, acknowledgments, understandings, agreements and
covenants contained in this Agreement for the purpose of rendering legal
opinions in connection with the Company's sale, transfer and assignment of the
Shares to Purchaser and future issuances of securities by the Company.
5.1 LEGENDS. Purchaser acknowledges that each stock
certificate issued by the Company evidencing the Shares shall have placed
thereon the following legends:
(a) a legend containing the following or
substantially similar language:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY THE
HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED
UNDER THE SECURITIES ACT OF 1933 AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER.
(b) and any legend required to be placed thereon by
applicable state securities law authorities.
6. REGISTRATION RIGHTS. On August 14, 2000 the Company filed a
registration statement on Form S-3 ("Registration Statement") and has been
advised in writing by the SEC that the Registration Statement will be declared
effective by the SEC following the SEC's receipt of the Company's written
request for acceleration. No later than 2:00 PM EDST on September 11, 2000 the
Company shall file a pre-effective amendment to the Registration Statement
covering resale of the Shares by Purchaser ( the "Amendment"). The Company shall
use commercially reasonable efforts to have such Registration Statement declared
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effective by the SEC by 5:00 PM on September 14th, 2000. If the Registration
Statement as amended to include resale by Purchaser of the Shares has not been
declared effective by 5:00 PM EDST on September 14th, 2000, or the Company has
not delivered unlegended certificates for the Shares to the Escrow Agent, then
the Company shall pay liquidated damages of $30,000 for each month or part
thereof that the Registration Statement is not effective or the unlegended
certificates for the Shares have not been delivered to the Escrow Agent,
commencing September 15th, 2000, payable monthly in arrears. The Company shall
bear all expenses and fees incurred in connection with the preparation, filing,
and amendment of the Registration Statement with the SEC.
7. MISCELLANEOUS.
7.1 NOTICES. Any notice or other communication required or
permitted under this Agreement shall be given in writing and shall be sent by
registered or certified mail with postage and fees prepaid, overnight courier,
facsimile or electronic transmission addressed to the other party hereto at the
address hereinafter set forth or at such other address as such party may
designate by ten (10) days' advance written notice to the other party hereto.
7.2 GOVERNING LAW. The validity, construction, interpretation
and enforceability of this Agreement shall be determined and governed by the
laws of the State of California without regard to California's conflict-of-laws
principles and rules.
7.3 CHOICE OF FORUM. Any judicial proceeding brought by any
party to this Agreement as a result of a dispute or controversy arising out of
or related to this Agreement shall be commenced in courts located within Orange
County, California. All parties to this Agreement agree to submit to the
jurisdiction of the federal and state courts located within such county in the
event of such a dispute or controversy.
7.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. The representations, warranties, covenants and agreements contained
in this Agreement, including, without limitation, all of Purchaser's
indemnification obligations under this Agreement, shall not be discharged or
dissolved upon the Stock Purchase Closing but shall survive and remain in full
force and effect after the Stock Purchase Closing.
7.5 SEVERABILITY. If any sentence, paragraph, clause or
combination of the same in this Agreement is held by a court of competent
jurisdiction to be unenforceable in any jurisdiction, then such sentence,
paragraph, clause or combination of the same shall be unenforceable in the
jurisdiction where it is so held invalid, and the remainder of this Agreement
shall remain binding on the parties hereto in such jurisdiction as if such
unenforceable provision had not been contained herein. The enforceability of
such sentence, paragraph, clause or combination of the same in this Agreement
otherwise shall be unaffected and shall remain enforceable in all other
jurisdictions.
7.6 NO WAIVER. The failure of any party hereto at any time to
require performance by the other party hereto of any term or provision of this
Agreement shall not affect the right of such party to require performance of
that term or provision, and any waiver by any party hereto of any breach of any
term or provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such term or provision, a waiver of the term
or provision itself or a waiver of any right under this Agreement.
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7.7 WRITTEN AMENDMENTS. This Agreement may not be modified,
amended, altered or changed in any respect whatsoever except by further
agreement in writing, duly executed by both parties hereto. No oral statements
or representations made after the date of this Agreement by either party hereto
are binding on such party, and neither party hereto shall have the right to rely
on such oral statements or representations.
7.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations of either party hereto arising under this Agreement may
be assigned by either party hereto without the prior written consent of the
other party hereto.
7.9 SUCCESSORS. This Agreement shall be binding on and shall
inure to the benefit of the parties hereto and their respective heirs,
successors, subcontractors, personal representatives and permitted assigns.
7.10 HEADINGS AND CAPTIONS. The headings and captions
appearing at the beginning of each Section and subsection of this Agreement are
included herein for the convenience of reference only, do not constitute a part
of this Agreement and shall not be deemed to limit, characterize or in any way
affect any term or provision of this Agreement or its interpretation. This
Agreement shall be enforced and construed as if no headings or captions appeared
herein.
7.11 ATTORNEYS' FEES. If a dispute arises with respect to this
Agreement, then the party prevailing in such dispute shall be entitled to
recover all expenses, including, without limitation, reasonable attorneys' fees
and expenses, incurred in ascertaining such party's rights and in preparing to
enforce and in enforcing such party's rights under this Agreement, whether or
not it was necessary for such party to institute suite.
7.12 FINDERS' FEES. The Company represents and warrants that
____________ is the only party to which it is obligated to pay any finder's fee
or commission in connection with the specific transaction contemplated by this
Agreement. Company shall indemnify and hold harmless the Purchaser for any
liability for any commission or compensation in the nature of a finder's fee
(and for the costs and expenses of defending against such liability or asserted
liability) for which Company or any of Company's officers, partners, employees
or representatives is responsible. Purchaser shall indemnify and hold harmless
the Company for any liability for any commission or compensation in the nature
of a finder's fee (and for the costs and expenses of defending against such
liability or asserted liability) for which Purchaser or any of Purchaser's
officers, partners, employees or representatives is responsible.
7.13 ENTIRE AGREEMENT. This Agreement constitutes and shall be
deemed to contain the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral and written
agreements or representations with respect to the subject matter hereof that are
not expressly set forth herein.
7.14 COUNTERPART EXECUTION. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same original.
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7.15 FACSIMILE TRANSMISSION. The facsimile transmission by one
party hereto of a signed copy of the signature page of this Agreement to the
other party hereto or such party's agent, followed by a facsimile transmission
of an acknowledgment of receipt thereof, shall constitute the delivery of this
Agreement. Each party hereto agrees to confirm such delivery by mailing or
personally delivering to the other party hereto or such party's agent an
executed original of this Agreement in its entirety.
IN WITNESS WHEREOF, the Company and Purchaser have executed this
Agreement to be effective as of the date first written above.
The "COMPANY": The "PURCHASER":
UNIVERSAL BROADBAND NETWORKS, INC., GENERATION CAPITAL ASSOCIATES,
a Delaware corporation a limited partnership
By: ___________________________ By: /S/ Frank E. Hart
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Its: __________________________ Frank E. Hart, General Partner
Address: Address:
2030 Main Street, Suite 550 1085 Riverside Trace
Irvine, CA 92614 Atlanta, GA 30328
Tel 949/260-8100 Tel 404/303-8450
Fax 949/261-2714 fax 404/255-2218
The "Escrow Agent":
David A. Rapaport
/S/ David A. Rapaport
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Address:
333 Sandy Springs Circle, Suite 230
Atlanta, GA 30328
Tel 404/257-915_
Fax 404/257-9125
Email [email protected]
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