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Title: |
Private Equity Agreement |
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Entities: |
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Date: |
2002 |
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Size: |
Preview shows 9KB of 124KB total |
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Price: |
$45 |
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ID: |
#357220 |
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PRIVATE EQUITY AGREEMENT
BY AND BETWEEN
EUROTECH, LTD.
AND
JENKS & KIRKLAND, LTD.
Dated as of February 22, 2002
{PAGE}
THIS PRIVATE EQUITY AGREEMENT is entered into as of the 22ND day of
February, 2002 (this "AGREEMENT"), by and between JENKS & KIRKLAND, LTD., an
entity organized and existing under the laws of The Bahamas ("INVESTOR"), and
EUROTECH, LTD., a corporation organized and existing under the laws of the
District of Columbia (the "COMPANY").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to Investor, from
time to time as provided herein, and Investor shall purchase, up to Ten Million
Dollars ($10,000,000) of the Common Stock (as defined below)of the Company; and
WHEREAS, such investments will be made in reliance upon the provisions
of Section 4(2) ("SECTION 4(2)") of the Securities Act of 1933 and the rules and
regulations promulgated thereunder (the "SECURITIES ACT"), and/or upon such
other exemption from the registration requirements of the Securities Act as may
be available with respect to any or all of the investments in Common Stock to be
made hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings specified or indicated (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"AGREEMENT" shall have the meaning specified in the preamble
hereof.
"AMEX" shall mean the American Stock Exchange.
{PAGE}
"ARTICLES" shall have the meaning specified in Section4.8.]
"BID PRICE" shall mean the closing bid price of the Common
Stock on the Principal Market.
"BLACKOUT NOTICE" shall have the meaning specified in the
Registration Rights Agreement.
"BLACKOUT SHARES" shall have the meaning specified in Section
2.6
"BY-LAWS" shall have the meaning specified in Section 4.8.
"CLAIM NOTICE" shall have the meaning specified in
Section9.3(a).
"CLOSING" shall mean one of the closings of a purchase and
sale of shares of Common Stock pursuant to Article II.
"CLOSING DATE" shall mean, with respect to a Closing, the
thirteenth (13th) Trading Day following the Put Date, related to such
Closing,(or the end of a Valuation Period in the event that a Valuation Event
shall occur) or such earlier date as the Company and Investor shall agree,
provided all conditions to such Closing have been satisfied on or before such
Closing.
"COMMITMENT PERIOD" shall mean the period commencing on the
earlier to occur of (a) the Effective Date or (b) such earlier date as the
Company and Investor shall agree, and expiring on the earlier to occur of (i)the
date on which Investor shall have purchased Put Shares pursuant to this
Agreement for an aggregate Purchase Price of the Maximum Commitment Amount,
(ii)the date this Agreement is terminated pursuant to Section 2.4, or (iii) the
date occurring twenty-four (24) months from the date of commencement of the
Commitment Period.
"COMMON STOCK" shall mean the Company's common stock, par
value $.00025 per share, and any shares of any other class of common stock
whether now or hereafter authorized, having the right to participate in the
distribution of dividends (as and when declared) and assets (upon liquidation of
the Company).
"COMMON STOCK EQUIVALENTS" shall mean any securities that are
convertible into or exchangeable for Common Stock or any warrants, options or
other rights to subscribe for or purchase Common Stock or any such convertible
or exchangeable securities.
2
{PAGE}
"COMPANY" shall have the meaning specified in the preamble to
this Agreement.
"CONDITION SATISFACTION DATE" shall have the meaning specified
in Section 7.2.
"DAMAGES" shall mean any loss, claim, damage, liability, costs
and expenses (including, without limitation, reasonable attorneys' fees and
disbursements and costs and expenses of expert witnesses and investigation) but
excluding lost profits, opportunity costs, punitive damages, penalties or fines.
"DISPUTE PERIOD" shall have the meaning specified in Section
9.3(a).
"DTC" shall the meaning specified in Section 2.3.
"DWAC" shall the meaning specified in Section 2.3.
"EFFECTIVE DATE" shall mean the date on which the SEC first
declares effective a Registration Statement registering resale of the
Registrable Securities as set forth in Section 7.2(a).
"ESCROW AGENT" shall mean Krieger & Prager, LLP.
"ESCROW AGREEMENT" shall mean the Escrow Agreement annexed
hereto as Exhibit G.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder.
"FAST" shall the meaning specified in Section 2.3.
"INDEMNIFIED PARTY" shall have the meaning specified in
Section 9.3(a).
"INDEMNIFYING PARTY" shall have the meaning specified in
Section 9.3(a).
"INDEMNITY NOTICE" shall have the meaning specified in Section
9.3(b).
"INITIAL DISCOUNT" shall mean ten (10%) percent.
3
{PAGE}
"INITIAL PURCHASE PRICE" shall mean, the product of(a) 1 minus
the Initial Discount times (b) the Market Price with respect to a Put.
"INVESTMENT AMOUNT" shall mean the dollar amount (within the
range specified in Section 2.2) to be invested by Investor to purchase Put
Shares with respect to any Put Date as notified by the Company to Investor in
accordance with Section 2.2.
"INVESTOR" shall have the meaning specified in the preamble to
this Agreement.
"MARKET PRICE" on any given date shall mean the average of the
lowest Bid Prices (not necessarily consecutive) for any three (3) Trading Days
during the ten (10) Trading Days period immediately following the Put Date (or a
Valuation Event in the event a Valuation Event shall occur during such ten
Trading Day Period.
"MATERIAL ADVERSE EFFECT" shall mean any effect on the
business, operations, properties, prospects or financial condition of the
Company that is material and adverse to the Company or to the Company and such
other entities controlling or controlled by the Company, taken as a whole,
and/or any condition, circumstance, or situation that would prohibit or
otherwise materially interfere with the ability of the Company to enter into and
perform its obligations under any of (a) this Agreement and (b) the Registration
Rights Agreement.
"MAXIMUM COMMITMENT AMOUNT" shall mean Ten Million Dollars
($10,000,000), subject to increase as agreed to by the Company and Investor.
"MAXIMUM PUT AMOUNT" shall mean, with respect to any Put, the
lesser of (i) the lesser of (a) One Million Dollars ($1,000,000), or (b)two
hundred (200%) percent of the Weighted Average Volume for the twenty (20)
trading days immediately preceding the Put Date,(ii) the maximum amount of
Common Stock that may be issued without the approval of the Company's
Shareholders according to the rules and regulations of the Principal Market, or
(iii) the amount specified in Section 7.2(j).
4
{PAGE}
"MINIMUM COMMITMENT AMOUNT" shall mean One Million
($1,000,000) Dollars.
"MINIMUM PUT AMOUNT" shall mean Fifty Thousand Dollars
($50,000).
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NEW BID PRICE" shall have the meaning specified in Section
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