Exhibit 10.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this "Agreement"), dated as of
, 2012, by and
between Cereplast, Inc., a Nevada corporation, with offices located at 300 N.
Continental Suite 100, El Segundo CA 90245 (the "Company"), and the investor
that is a signatory to this Agreement (the "Investor").
WHEREAS:
A. On May 24, 2011, the Company issued those certain 7% Senior Subordinated
Convertible Note due 2016 (the "Notes") to certain investors, which Notes are
convertible into shares of the Company's common stock, par value $0.001 per
share (the "Common Stock") in accordance with that certain indenture, dated
May 24, 2011, by and between the Company and Wells Fargo Bank, National
Association, as trustee (the "Indenture"). Capitalized terms not defined herein
shall have the meaning as set forth in the Indenture.
B. The Investor currently holds such aggregate principal amount of Notes as set
forth below the Investor's name on its signature page attached hereto (the
"Investor Notes").
C. The Company and the Investor desire to enter into this Agreement, pursuant to
which, among other things, the Investor shall exchange the Investor Notes plus
accrued interest through August 8, 2012, for such number of shares of Common
Stock as set forth below the Investor's name on its signature page attached
hereto (the "Exchange Shares") in reliance upon the exemption from registration
provided by Section 3(a)(9) of the Securities Act.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the Company and the Investor hereby agree as
follows:
1. EXCHANGE OF INVESTOR NOTES. On the date hereof, the Investor shall, and the
Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the
Investor Notes for the Exchange Shares, without the payment of any additional
consideration (the "Exchange"), as follows:
(a) Delivery. In exchange for the Investor Notes, on the date hereof the Company
shall cause the Transfer Agent for the Common Stock to credit the Exchange
Shares to the Investor's or its designee's balance account in accordance with
the instructions set forth below the Investor's name on its signature page
attached hereto with The Depository Trust Company ("DTC") through its
Deposit/Withdrawal at Custodian system. The Investor shall deliver or cause to
be delivered to the Company (or its designee) the Investor Notes as soon as
commercially practicable following the date hereof. Promptly following the
deposit of the Exchange Shares with the Investor's or its designee's balance
account with DTC, the Investor Notes shall be cancelled.
(b) Other Documents. The Company and the Investor shall execute and/or deliver
such other documents and agreements as are customary and reasonably necessary to
effectuate the Exchange.
2. REPRESENTATIONS AND WARRANTIES
(i) Investor Representations and Warranties. The Investor hereby represents and
warrants to the Company that, as of the date hereof, the Investor is the sole
record and beneficial owner of the Investor Notes and will transfer and deliver
to the Company at the closing of the transactions contemplated hereunder valid
title to the Investor Notes, free from preemptive