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Title: |
Securities Purchase Agreement |
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Entities: |
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Date: |
2004 |
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Size: |
91KB total |
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Price: |
$42 |
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ID: |
#1684783 |
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POWERCOLD CORPORATION
SECURITIES PURCHASE AGREEMENT
July 29, 2004
TABLE OF CONTENTS
Page
1.
Agreement to Sell and Purchase
2.
Fees and Warrant
3.
Closing, Delivery and Payment.
3.1
Closing
3.2
Delivery
4.
Representations and Warranties of the Company
4.1
Organization, Good Standing and Qualification
4.2
Subsidiaries
4.3
Capitalization; Voting Rights
4.4
Authorization; Binding Obligations
4.5
Liabilities
4.6
Agreements; Action
4.7
Obligations to Related Parties
4.8
Changes
4.9
Title to Properties and Assets; Liens, Etc.
4.10
Intellectual Property
4.11
Compliance with Other Instruments
4.12
Litigation
4.13
Tax Returns and Payments
4.14
Employees
4.15
Registration Rights and Voting Rights
4.16
Compliance with Laws; Permits
4.17
Environmental and Safety Laws
4.18
Valid Offering
4.19
Full Disclosure
4.20
Insurance
4.21
SEC Reports
4.22
Listing
4.23
No Integrated Offering
4.24
Stop Transfer
4.25
Dilution
4.26
Patriot Act
5.
Representations and Warranties of the Purchaser
5.1
No Shorting
5.2
Requisite Power and Authority
5.3
Investment Representations
5.4
Purchaser Bears Economic Risk
5.5
Acquisition for Own Account
5.6
Purchaser Can Protect Its Interest
5.7
Accredited Investor
5.8
Legends
6.
Covenants of the Company
6.1
Stop-Orders
6.2
Listing
6.3
Market Regulations
6.4
Reporting Requirements
6.5
Use of Funds
6.6
Access to Facilities
6.7
Taxes
6.8
Insurance
6.9
Intellectual Property
6.10
Properties
6.11
Confidentiality
6.12
Required Approvals
6.13
Reissuance of Securities
6.14
Opinion
6.15
Margin Stock
6.16
Financing Right of First Refusal
7.
Covenants of the Purchaser
7.1
Confidentiality
7.2
Non-Public Information
8.
Covenants of the Company and Purchaser Regarding Indemnification
8.1
Company Indemnification
8.2
Purchaser's Indemnification
9.
Conversion of Convertible Note
9.1
Mechanics of Conversion
10.
Registration Rights.
10.1
Registration Rights Granted
10.2
Offering Restrictions
11.
Miscellaneous
11.1
Governing Law
11.2
Survival
11.3
Successors
11.4
Entire Agreement
11.5
Severability
11.6
Amendment and Waiver
11.7
Delays or Omissions
11.8
Notices
11.9
Attorneys' Fees
11.10
Titles and Subtitles
11.11
Facsimile Signatures; Counterparts
11.12
Broker's Fees
11.13
Construction
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LIST OF EXHIBITS | |
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Form of Convertible Term Note |
Exhibit A |
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Form of Warrant |
Exhibit B |
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Form of Opinion |
Exhibit C |
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Form of Escrow Agreement |
Exhibit D |
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered into as of July 29, 2004, by and between POWERCOLD CORPORATION, a Nevada corporation (the "Company"), and Laurus Master Fund, Ltd., a Cayman Islands company (the "Purchaser").
RECITALS
WHEREAS, the Company has authorized the sale to the Purchaser of a Convertible Term Note in the aggregate principal amount of Five Million Dollars ($5,000,000 ) (as amended, modified or supplemented from time to time, the "Note"), which Note is convertible into shares of the Company's common stock, $0.001 par value per share (the "Common Stock") at an initial fixed conversion price of $1.87 per share of Common Stock ("Fixed Conversion Price");
WHEREAS, the Company wishes to issue a warrant to the Purchaser to purchase up to 615,000 shares of the Company's Common Stock (subject to adjustment as set forth therein) in connection with Purchaser's purchase of the Note;
WHEREAS, Purchaser desires to purchase the Note and the Warrant (as defined in Section 2) on the terms and conditions set forth herein; and
WHEREAS, the Company desires to issue and sell the Note and Warrant to Purchaser on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
Agreement to Sell and Purchase
. Pursuant to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 3), the Company agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase from the Company, a Note in the aggregate principal amount of $5,000,000 convertible in accordance with the terms thereof into shares of the Company's Common Stock in accordance with the terms of the Note and this Agreement. The Note purchased on the Closing Date shall be known as the "Offering." A form of the Note is annexed hereto as Exhibit A. The Note will mature on the Maturity Date (as defined in the Note). Collectively, the Note and Warrant and Common Stock issuable in payment of the Note, upon conversion of the Note and upon exercise of the Warrant are referred to as the "Securities."
2.
Fees and Warrant
. On the Closing Date:
(a)
The Company will issue and deliver to the Purchaser a Warrant to purchase up to 615,0000 shares of Common Stock in connection with the Offering (as amended, modified or supplemented from time to time, the "Warrant") pursuant to Section 1 hereof. The Warrant must be delivered on the Closing Date. A form of Warrant is annexed hereto as Exhibit B. All the representations, covenants, warranties, undertakings, and indemnification, and other rights made or granted to or for the benefit of the Purchaser by the Company are hereby also made and granted in respect of the Warrant and shares of the Company's Common Stock issuable upon exercise of the Warrant (the "Warrant Shares").
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