CHAPEAU, INC. STOCK PURCHASE AGREEMENT
Exhibit
10.4
CHAPEAU,
INC.
This
Stock Purchase Agreement (“Agreement”) is made effective as of __________ ___,
2007 (“Effective Date”), by and between Chapeau, Inc., a Utah corporation (the
“Company”), and ___________________ (“Purchaser”).
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale of Common Stock.
Subject
to the terms and conditions of this Agreement, the Company hereby agrees
to
issue and sell to Purchaser and Purchaser hereby agrees to purchase from
the
Company upon the execution of this Agreement ___________ (_____ Thousand)
shares
of its Common Stock (the “Shares”) for a purchase price of $_______ per share,
in consideration for payment of $________.__ (________________ and ___/100)
cash.
2. Restriction
Against Transfer.
Purchaser agrees that it will not transfer, assign, hypothecate, or in any
way
dispose of any of the Shares, or any right or interest therein, whether
voluntarily or by operation of law, or by gift or otherwise, without the
prior
written consent of the Company, except to the extent that a transfer is made
in
accordance with the terms of this Agreement. Any purported transfer in violation
of any provision of this Agreement shall be void and ineffectual, and shall
not
operate to transfer any interest or title to the purported
transferee.
3. Obligations
of Subsequent Transferees.
On the
occurrence of a transfer of any Shares pursuant to the terms of this Agreement,
the transferee shall execute an agreement to be bound by the restrictions
on
transfer set forth in this Agreement.
4. Notices.
All
notices required or desired to be given pursuant to this Agreement shall
be in
writing and shall be personally served (including by commercial delivery
or
courier service) or given by mail. Any notice given by mail shall be deemed
to
have been given and received when ninety-six (96) hours have elapsed from
the
time such notice was deposited in the United States mails, certified or
registered and first-class postage prepaid, addressed, if intended to a party
to
this Agreement, at the address set forth below its signature or to such other
address as such party may have designated by like written notice to each
of the
other parties from time to time.
5. Restriction
on Certificates.
All
certificates representing Shares subject to the provisions of this Agreement
shall have endorsed thereon, among others, the following legends:
(a) “THESE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF THE
VARIOUS STATES, AND HAVE BEEN ISSUED AND SOLD PURSUANT TO AN EXEMPTION FROM
THE
ACT, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED BY THE HOLDER
THEREOF
AT ANY TIME, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT,
FILED UNDER THE ACT COVERING THE SHARES, OR (2) UPON DELIVERY TO THE
CORPORATION OF AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
THE
SHARES MAY BE TRANSFERRED WITHOUT REGISTRATION”; and
(b) Any
other
legend required to be placed thereon by state and federal securities
authorities.
6. Purchaser
Representations and Warranties.
Purchaser acknowledges that the Shares have not been registered under the
Securities Act of 1933, as amended, (the “Act”) in reliance upon certain
exemptions from registration under the Act. In this connection, Purchaser
represents and warrants to the Company as follows:
(a) Purchaser
either has a preexisting personal or business relationship with the Company
or
its officers, directors or controlling persons or by reason of its business
or
financial experience or the business or financial experience of its professional
advisors who are unaffiliated with and who are not compensated by the Company
or
any affiliate or selling agent of the Company, directly or indirectly, could
be
reasonably assumed to have the capacity to protect its own interests in
connection with the transaction.
(b) Purchaser
is an “accredited investor” as defined in Regulation D promulgated under the
Act.
(c) Purchaser
recognizes that an investment in the Company involves substantial risks.
Purchaser has taken full cognizance of and understands all of the risks related
to the purchase of the Shares. Purchaser acknowledges that it has successfully
considered and has, to the extent Purchaser believes such discussion necessary,
discussed with Purchaser’s professional, legal, financial and tax advisers, the
suitability of an investment in the Company for Purchaser’s particular financial
and tax situation and has determined that the Shares are a suitable investment
for him.
(d) Purchaser
acknowledges that it has had the opportunity to ask questions of, and receive
answers from, representatives of the Company concerning the terms and conditions
of this Agreement and its investment in the Company. Any questions raised
by
Purchaser have been answers to the satisfaction of Purchaser. The Company
has
made available to Purchaser all documents and information that Purchaser
has
requested relating to an investment in the Company.
(e) Purchaser
represents to the Company that it is purchasing the Shares for its own account,
for investment only, and not with a view to, or for resale in connection
with,
any distribution thereof. Purchaser represents that it does not have any
present
intention of selling or otherwise transferring the Shares or any interest
therein. Purchaser acknowledges and agrees that the Shares may not be sold,
transferred, pledged or otherwise disposed of without registration under
the Act
and applicable state securities laws or in accordance with applicable exemptions
therefrom.
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(f) Purchaser
acknowledges that no representations or promises have been made concerning
the
marketability or value of the Shares. The Company has not agreed with or
represented to Purchaser that the Shares will be purchased or redeemed from
Purchaser at any time in the future. There have been no representations,
promises or agreements that the Shares will be registered under the Act at
any
time in the future or otherwise qualified for sale under applicable securities
laws. Purchaser acknowledges that it may be required to bear the economic
risk
of an investment in the Company for an indefinite period of time.
(g) The
representations and warranties made by Purchaser herein are made by Purchaser
with the intent that they be relied upon by the Company in determining the
suitability of Purchaser as a purchaser of the Shares. In addition, Purchaser
undertakes to notify the Company immediately of any change in any
representation, warranty or other information relating to Purchaser set forth
herein. Purchaser hereby agrees that such representations and warranties
and any
agreement, undertakings and acknowledgments herein shall survive the purchase
of
the Shares, and Purchaser hereby agrees to indemnify the Company, each of
its
affiliates and each of its and their respective officers and directors and
hold
them harmless from and against any and all loss, damages, liability or expense,
including costs and reasonable attorneys’ fees, which they may incur by reason
of or in connection with any misrepresentation or breach of representation,
warranty or covenant of Purchaser set forth herein.
7. Federal
Law Restrictions on Transfer.
Without
in any way limiting the representations set forth above or reducing any rights
of the Company herein, Purchaser agrees not to make any disposition of all
or
any portion of the Shares unless and until:
(a) There
is
then in effect a Registration Statement under the Act covering such proposed
disposition and such disposition is made in accordance with said Registration
Statement; or
(b) Purchaser
shall have notified the Company of the proposed disposition and shall have
furnished the Company with a detailed statement of the circumstances surrounding
the proposed disposition, and, if so requested by the Company, shall have
furnished the Company with an opinion of Purchaser’s counsel to the effect that
such disposition will not require registration of such shares under the Act,
and
such opinion of counsel shall have been concurred in by counsel for the Company
and the Company shall have advised Purchaser of such concurrence.
8. Stop
Transfer Instructions; Refusal to Transfer.
Purchaser agrees that in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate “stop transfer”
instructions to its transfer agent, if any, with respect to such certificates
or
instruments and, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records. The Company
shall
not be required (i) to transfer on its books any Shares that have been sold
or otherwise transferred in violation of any of the provisions of this Agreement
or (ii) to treat as owner of such Shares or to accord the right to vote or
pay dividends to any purchaser or other transferee to whom such Shares shall
have been so transferred.
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9. Market
Stand-Off.
In
connection with any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed under the
Act,
Purchaser agrees not to sell, make any short sale of, loan, hypothecate,
pledge,
grant any option for the purchase of, or otherwise dispose of or transfer
for
value or otherwise agree to engage in any of the foregoing transactions with
respect to the Shares without the prior written consent of the Company or
its
underwriters, for such period of time from and after the effective date of
such
registration statement as may be requested by the Company or such
underwriters.
10.
THE
SALE
OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED
WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, AND THE
ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE
CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE
SALE
OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTIONS 25100, 25102 OR 25105
OF
THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT
ARE EXPRESSLY CONDITIONED UNLESS THE SALE IS SO EXEMPT.
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11.
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Miscellaneous.
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(a) Further
Assurances.
The
parties agree to execute any additional instruments and to take any additional
action as may reasonably be necessary to carry out the intent of this
Agreement.
(b) Successors
and Assigns.
This
Agreement shall inure to the benefit of the successors and assigns of the
Company and, subject to the restrictions on transfer set forth in this
Agreement, be binding upon Purchaser, its heirs, executors, administrators,
successors, and assigns.
(c) Entire
Agreement; Amendment.
This
Agreement, together with any exhibits hereto, constitute the entire agreement
of
the parties with respect to the subject matter hereof and thereof. No amendment
or variation of the terms of this Agreement, with or without consideration,
shall be valid unless made in writing and signed by all of the parties to
this
Agreement at the time of such amendment.
(d) Governing
Law; Severability.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California as such laws are applied to agreements between California
residents entered into and to be performed entirely in California. To the
extent
that any of the agreements set forth herein, or any word, phrase, clause,
or
sentence thereof shall be found to be illegal or unenforceable for any reason,
such agreement, word, phrase, clause, or sentence shall be modified or, if
necessary, deleted in such a manner so as to make the Agreement, as modified,
legal and enforceable under applicable laws.
(e) Counterparts.
This
Agreement may be executed in counterparts, each of which when executed and
delivered will be deemed to be an original but all of which taken together
will
constitute one and the same Agreement.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
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CHAPEAU,
INC.
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By:
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_______________________________
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Name:
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▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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PURCHASER
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By:
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_______________________________
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Name:
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_______________________________
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Title:
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Individual
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Address:
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_______________________________
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_______________________________
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