COMMON STOCK PURCHASE AGREEMENT
EXHIBIT 2.1
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of July 11, 2008, by and between Typhoon Touch Technologies, Inc., a Nevada corporation (the "Company"), and First Strategy Finance Corp., a Panama based company (the "Buyer"). Capitalized terms used herein and not otherwise defined herein are defined in Section 10 hereof.
WHEREAS:
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
(a) Initial Purchases; Commencement of Base and Block Purchases of Common Stock. Within five Business Days after the execution of this Agreement, the Buyer shall purchase from the Company 100,000 Purchase Shares and upon receipt of such Purchase Shares pay to the Company as the purchase price therefor, via wire transfer, Five Hundred Thousand Dollars ($500,000.00) (such purchase an "Initial Purchase" and such Purchase Shares are referred to herein as "Initial Purchase Shares"). Upon issuance and payment therefor as provided herein, such 100,000 Initial Purchase Shares shall be, validly issued and are fully paid and nonassessable.
In addition, within One Hundred and Twenty (120) Business Days after the execution of this Agreement, the Buyer shall purchase from the Company 50,000 additional Purchase Shares and upon receipt of such Purchase Shares pay to the Company as the purchase price therefore, via wire transfer, Two Hundred Fifty Thousand Dollars ($250,000.00) (such purchase an "Initial Purchase" and such Purchase Shares are referred to herein as "Initial Purchase Shares"). Upon issuance and payment therefore as provided herein, such 50,000 Initial Purchase Shares shall be, validly issued and are fully paid and nonassessable.
Further still, on the Filing Date (as defined in Section 4(a) hereof), the Buyer shall purchase from the Company 50,000 additional Purchase Shares and upon receipt of such Purchase Shares pay to the Company as the purchase price therefor, via wire transfer, Two Hundred Fifty Thousand Dollars ($250,000.00) (such purchase an "Initial Purchase" and such Purchase Shares are referred to herein as "Initial Purchase Shares"). Upon issuance and payment therefore as provided herein, such 50,000 Initial Purchase Shares shall be, validly issued and are fully paid and nonassessable.
(b) The Company's Right to Require Purchases. Any time on or after the Commencement Date, the Company shall have the right but not the obligation to direct the Buyer by its delivery to the Buyer of Base Purchase Notices from time to time to buy Purchase Shares (each such purchase a "Base Purchase") in any amount up to One Hundred Thousand Dollars ($100,000.00) per Base Purchase Notice (the "Base Purchase Amount") at the Purchase Price on the Purchase Date. The Company may request and the Buyer, in its sole
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discretion, may elect to allow the Company to increase a Base Purchase beyond One Hundred Thousand Dollars ($100,000) for any one or more Purchases.
(d) Purchase Price Floor. The Buyer shall not be obligated to effect any sales under this Agreement on any Purchase Date where the Purchase Price for any purchases of Purchase Shares would be less than the Floor Price. "Floor Price" means $0.25, which shall NOT be adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction.
(e) Records of Purchases. The Buyer and the Company shall each maintain records showing the remaining Available Amount at any give time and the dates and Purchase Amounts for each purchase or shall use such other method, reasonably satisfactory to the Buyer and the Company.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
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(g) Information. The Buyer has been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities that have been reasonably requested by the Buyer, including, without limitation, the SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in the Securities involves a high degree of risk.
(i) Transfer or Sale. The Buyer understands that except as provided in the Registration Rights Agreement (as defined in Section 4(a) hereof): (i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or (B) an exemption exists permitting such Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made
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(k) Residency. The Buyer is a resident of the country of Panama.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(b) Authorization; Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement, the Registration Rights Agreement and each of the other agreements entered into by the parties on the Commencement Date and attached hereto as exhibits to this Agreement (collectively, the "Transaction Documents"), and to issue the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance of the Initial Purchase Shares and the reservation for issuance and the issuance of additional Purchase Shares issuable under this Agreement, have been duly authorized by the Company's Board of Directors and no further consent or authorization is required by the Company, its Board of Directors or its shareholders, (iii) this Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be limited by
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(c) Capitalization. As of the date hereof, the authorized capital stock of the Company consists of (i) 9,000,000,000 shares of common stock, of which as of the date hereof, 14,650,000 shares are issued and outstanding, none are held as treasury shares, 2,000,000 shares are reserved for issuance pursuant to the Company's stock option plans of which the entire 2,000,000 shares remain available for future grants and no shares are issuable and reserved for issuance pursuant to securities (other than stock options issued pursuant to the Company's stock option plans) exercisable or exchangeable for, or convertible into, shares of Common Stock and (ii) 50,000,000 shares of Preferred Stock, $0.001 par value of which two series of Preferred Stock have been designated: 4,000,000 share of Series A Preferred Stock of which 2,593,350 Series A Preferred Stock have been issued and 60,000 shares of Series B Preferred Stock of which 60,0000 have been issued. The Series A and Series B Preferred Stock are not convertible.
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(e) No Conflicts. Except as disclosed in Schedule 3(e), the execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation, any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the By-laws or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations, amendments, accelerations, cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.
(f) SEC Documents; Financial Statements. Except as disclosed in Schedule 3(f), since July 12, 2006, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the "SEC Documents"). As of their respective dates (except as they have been correctly amended), the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC (except as they may have been properly amended), contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates (except as they have been properly amended), the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
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(i) Acknowledgment Regarding Buyer's Status. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm's length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Buyer's purchase of the Securities. The Company further represents to the Buyer that the Company's decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives and advisors.
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(r) Application of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement Date all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the state of its incorporation which is or could become applicable to the Buyer as a result of the transactions
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(d) Limitation on Short Sales and Hedging Transactions. The Buyer agrees that beginning on the date of this Agreement and ending on the date of termination of this Agreement as provided in Section 11(k), the Buyer and its agents, representatives and affiliates shall not in any manner whatsoever enter into or effect, directly or indirectly, any (i) "short sale" (as such term is defined in Section 242.200 of Regulation SHO of the 0000 Xxx) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.
(e) Issuance of Initial Purchase Shares; Limitation on Sales of Purchase Shares. The Initial Purchase Shares shall be issued in certificated form and (subject to Section 5 hereof) shall bear only the following restrictive legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED PURSUANT TO A CLAIM OF EXEMPTION FROM THE REGISTRATION OR
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QUALIFICATION PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND STATE SECURITIES LAWS AND THEREFORE HAVE NOT BEEN REGISTERED UNDER THE ACT OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT COMPLIANCE WITH THE PROVISIONS OF REGULATION S OR, IF APPLICABLE, RULE 144 UNDER THE
ACT, COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF THE ACT OR APPLICABLE STATE LAWS, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS. THE COMPANY WILL INSTRUCT ITS STOCK TRANSFER AGENT NOT TO RECOGNIZE ANY SALE OF THESE SECURITIES UNLESS SUCH SALE IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR THE COMPANY HAS FIRST RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS SECURITIES COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
(h) Agreement to Take Necessary and Desirable Actions. The Buyer shall execute and deliver each of the Transaction Documents to which it is a party and such other documents, certificates, agreements and other writings and take such other actions as may be necessary, desirable or reasonably requested by the Company in order to consummate or implement as expeditiously as practicable the transactions contemplated hereby.
5. TRANSFER AGENT INSTRUCTIONS.
6. CONDITIONS TO THE COMPANY'S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK UNDER THIS AGREEMENT.
The right of the Company hereunder to commence sales of the Purchase Shares is subject to the satisfaction of each of the following conditions on or before the Commencement Date (the date that the Company may begin sales):
(a) The Buyer shall have executed each of the Transaction Documents and delivered the same to the Company;
7. CONDITIONS TO THE BUYER'S OBLIGATION TO MAKE PURCHASES OF SHARES OF COMMON STOCK.
The obligation of the Buyer to buy Purchase Shares (other than the 200,000 Initial Purchase Shares) under this Agreement is subject to the satisfaction of each of the following conditions on or before the Commencement Date (the date that the Company may begin sales other than the 200,000 Initial Purchase Shares) and once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:
(a) The Company shall have executed each of the Transaction Documents and delivered the same to the Buyer;
(b) The Company shall have issued to the Buyer 200,000 Initial Purchase Shares and shall have removed the restrictive transfer legend from the certificate representing all the Initial Purchase Shares;
(c) The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended by the SEC or the Principal Market and the Purchase Shares shall be approved for listing upon the Principal Market;
(d) The Buyer shall have received the opinions of the Company's legal counsel dated as of the Commencement Date substantially in the form of Exhibit A attached hereto;
(e) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date. The Buyer shall have received a certificate, executed by the CEO, President or CFO of the Company, dated as of the Commencement Date, to the foregoing effect in the form attached hereto as Exhibit B;
(f) The Board of Directors of the Company shall have adopted resolutions in the form attached hereto as Exhibit C which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date;
(g) As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting future purchases of Purchase Shares hereunder, 10,000,000 shares of Common Stock not including the 200,000 Initial Purchase Shares;
(h) The Irrevocable Transfer Agent Instructions, in form acceptable to the Buyer shall have been delivered to and acknowledged in writing by the Company and the Company's Transfer Agent;
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(i) The Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State of Nevada issued by the Secretary of State of the State of Nevada as of a date within ten (10) Business Days of the Commencement Date;
(j) The Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Nevada within ten (10) Business Days of the Commencement Date;
(k) The Company shall have delivered to the Buyer a secretary's certificate executed by the Secretary of the Company, dated as of the Commencement Date, in the form attached hereto as Exhibit D;
(l) A registration statement covering the sale of all of the 200,000 Initial Purchase Shares and Purchase Shares shall have been declared effective under the 1933 Act by the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales of any Purchase Shares, and to be filed by the Company one Business Day after the Commencement Date. The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Purchase Shares pursuant to this Agreement in compliance with such laws;
(m) No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n) On or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested by the Buyer, in order to render inapplicable any control share acquisition, business combination, shareholder rights plan or poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the state of its incorporation which is or could become applicable to the Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company's issuance of the Securities and the Buyer's ownership of the Securities; and
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9. EVENTS OF DEFAULT.
An "Event of Default" shall be deemed to have occurred at any time as any of the following events occurs:
(a) while any registration statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement, the effectiveness of such registration statement lapses for any reason (including, without limitation, the issuance of a stop order) or is unavailable to the Buyer for sale of all of the Registrable Securities (as defined in the Registration Rights Agreement) in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business Days in any 365-day period;
(b) the suspension from trading or failure of the Common Stock to be listed on the Principal Market for a period of three (3) consecutive Business Days;
(c) the delisting of the Company's Common Stock from the Principal Market, provided, however, that the Common Stock is not immediately thereafter trading on the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Capital Market, or the American Stock Exchange;
(d) the failure for any reason by the Transfer Agent to issue Purchase Shares to the Buyer within five (5) Business Days after the applicable Purchase Date which the Buyer is entitled to receive;
(e) the Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach could have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only if such breach continues for a period of at least five (5) Business Days;
(f) if any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g) if the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary
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case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, (D) makes a general assignment for the benefit of its creditors, (E) becomes insolvent, or (F) is generally unable to pay its debts as the same become due;
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company in an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the liquidation of the Company or any Subsidiary; or
(i) a material adverse change in the business, properties, operations, financial condition or results of operations of the Company and its Subsidiaries taken as a whole.
For purposes of this Agreement, the following terms shall have the following meanings:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "Available Amount" means initially Twenty Million Dollars ($20,000,000.00) in the aggregate which amount shall be reduced by the Purchase Amount each time the Buyer purchases shares of Common Stock pursuant to Section 1 hereof including the Initial Purchases.
(c) "Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(d) "Business Day" means any day on which the Principal Market is open for trading including any day on which the Principal Market is open for trading for a period of time less than the customary time.
(e) "Closing Sale Price" means, for any security as of any date, the last closing trade price for such security on the Principal Market as reported by the Principal Market, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by the Principal Market.
(f) "Common Stock" means the Company's common stock, par value $0.001 per share prior to giving effect to the thirty for one forward split anticipated to be effective July 18, 2008 as required by subsection 4(f) of this Agreement (the "Forward Split"). The number of Initial Purchase Shares acquired by Buyer will be adjusted accordingly at the time of purchase for the Forward Split or any other stock split that may become effective after the date of this Agreement.
(g) "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without
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limitation, documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within ten (10) business days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
(h) "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(i) "Maturity Date" means the date that is 500 Business Days (25 Monthly Periods) from the Commencement Date.
(j) "Monthly Period" means each successive 20 Business Day period commencing with the Commencement Date.
(k) "Person" means an individual or entity including any limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
(l) "Principal Market" means the Nasdaq OTC Bulletin Board; provided however, that in the event the Company's Common Stock is ever listed or traded on the Nasdaq Global Market, the Nasdaq Capital Market, the New York Stock Exchange or the American Stock Exchange, then the "Principal Market" shall mean such other market or exchange on which the Company's Common Stock is then listed or traded.
(m) "Purchase Amount" means, with respect to any particular purchase made hereunder, the portion of the Available Amount to be purchased by the Buyer pursuant to Section 1 hereof in connection with the Initial Purchases or as set forth in a valid Base Purchase Notice or a valid Block Purchase Notice which the Company delivers to the Buyer.
(n) "Purchase Date" means with respect to any particular purchase made hereunder, the Business Day after receipt by the Buyer of a valid Base Purchase Notice or a valid Block Purchase Notice that the Buyer is to buy Purchase Shares pursuant to Section 1 hereof.
(o) "Purchase Price" means ninety-percent (90%) of the lower of the (A) the lowest Sale Price of the Common Stock on the Purchase Date and (B) the arithmetic average of the three (3) lowest Closing Sale Prices for the Common Stock during the twelve (12) consecutive Business Days ending on the Business Day immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction).
(p) "Sale Price" means, any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(q) "SEC" means the United States Securities and Exchange Commission.
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(a) Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of Nevada shall govern all issues concerning the relative rights of the Company and its shareholders. All other questions concerning the construction, validity, enforcement and interpretation of this Agreement and the other Transaction Documents shall be governed by the internal laws of the State of Washington, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Washington or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Washington. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Seattle, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f) Notices. Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly
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addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:
If to the Company:
Typhoon Touch Technologies, Inc..
1700-7th Ave., Suite 2100, PMB 134
Xxxxxxx, XX 00000
Telephone: 000-000-0000
Attention: Chief Executive Officer
With a copy to:
Venture Law Corporation
000 Xxxx Xxxxxxxx Xxxxxx
-Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxxx, Esq.
If to the Buyer:
First Strategy Finance Corp.
Gastelun 16
X.X.Xxx 000
XX-0000 Xxxxxx
Xxxxxxxxxxxxx
Telephone: x000-000-0000
Facsimile: x000-000-0000
If to the Transfer Agent:
Corporate Stock Transfer, Inc.
0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
(i) Publicity. The Buyer shall have the right to approve before issuance any press release, SEC filing or any other public disclosure made by or on behalf of the Company whatsoever with respect to, in any manner, the Buyer, its purchases hereunder or any aspect of this Agreement or the transactions
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(k) Termination. This Agreement may be terminated only as follows:
(i) By the Buyer any time an Event of Default exists without any liability or payment to the Company. However, if pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors, (any of which would be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof) this Agreement shall automatically terminate without any liability or payment to the Company without further action or notice by any Person. No such termination of this Agreement under this Section 11(k)(i) shall affect the Company's or the Buyer's obligations under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective obligations with respect to any pending purchases under this Agreement.
(ii) In the event that the Commencement shall not have occurred, the Company shall have the option to terminate this Agreement for any reason or for no reason without any liability whatsoever of any party to any other party under this Agreement.
(iii) In the event that the Commencement shall not have occurred on or before June 30, 2009, due to the failure to satisfy the conditions set forth in Sections 6 and 7 above with respect to the Commencement, at any time prior to Commencement either party shall have the option to terminate this Agreement at the close of business on such date or thereafter without any liability whatsoever of any party to any other party under this Agreement.
(iv) At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason by delivering notice (a "Company Termination Notice") to the Buyer electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement. The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Buyer.
(v) This Agreement shall automatically terminate on the date that the Company sells and the Buyer purchases the full Available Amount as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement.
(vi) If by the Maturity Date for any reason or for no reason the full Available Amount under this Agreement has not been purchased as provided for in Section 1 of this Agreement, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under this Agreement.
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(l) Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Buyer that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Buyer represents and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement agent, broker or finder relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Buyer harmless against, any liability, loss or expense (including, without limitation, attorneys' fees and out of pocket expenses) arising in connection with any such claim.
(n) Remedies, Other Obligations, Breaches and Injunctive Relief. The Buyer's remedies provided in this Agreement shall be cumulative and in addition to all other remedies available to the Buyer under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief), no remedy of the Buyer contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein shall limit the Buyer's right to pursue actual damages for any failure by the Company to comply with the terms of this Agreement. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer and that the remedy at law for any such breach may be inadequate.
(p) Failure or Indulgence Not Waiver. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
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IN WITNESS WHEREOF, the Buyer and the Company have caused this Common Stock Purchase Agreement to be duly executed as of the date first written above.
| THE COMPANY: |
|
Typhoon Touch Technologies, Inc. |
| By: |
| Name: Xxxxx X. Xxxxxxx |
| Title: Chief Executive Officer |
| BUYER: |
|
First Strategy Finance Corp |
| By: |
| Name: |
| Title: |
SCHEDULES
| Schedule 3(a) | Subsidiaries |
| Schedule 3(c) | Capitalization |
| Schedule 3(e) | Conflicts |
| Schedule 3(f) | 1934 Act Filings |
| Schedule 3(g) | Material Changes |
| Schedule 3(h) | Litigation |
| Schedule 3(k) | Intellectual Property |
| Schedule 3(m) | Liens |
| Schedule 3(q) | Certain Transactions |
EXHIBITS
| Exhibit A | Form of Company Counsel Opinion |
| Exhibit B | Form of Officer's Certificate |
| Exhibit C | Form of Resolutions of Board of Directors of the Company |
| Exhibit D | Form of Secretary's Certificate |
| Exhibit E | Form of Letter to Transfer Agent |
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DISCLOSURE SCHEDULES
Schedule 3(a) -Subsidiaries
Typhoon Touch Technologies, Inc. has no subsidiary companies.
Schedule 3(c) -Capitalization
The authorized capital of Typhoon Touch Technologies, Inc. as of July 11, 2008 is as follows:
Authorized Capital
a. 900,000,000 shares of Common Stock with a par value of $0.001 per share;
and
b. 50,000,000 shares of Preferred Stock with a par value of $0.001 per share.
The Board of Directors is authorized to fix the number of shares of any
series of Preferred Stock and to determine the designation of any such series
and the rights, preferences, privileges and restrictions granted to or imposed
upon any wholly unissued series of Preferred Stock. Two series of Preferred
Stock have been established:
- 4,000,000 shares of Preferred Stock have been established and designated as the Series A Preferred Stock; and
- 60,000 shares of Preferred Stock have been established and designated as the Series B Preferred Stock.
The Series A Preferred Stock and Series B Preferred Stock do not have conversion rights into Common Stock of Typhoon Touch Technologies, Inc.
Issued and Outstanding
a. 14,650,000 shares of Common Stock with a par value of $0.001 per share;
b. 2,593,350 shares of Series A Preferred Stock with a par value of $0.001
per share; and
c. 2,593,350 shares of Series A Preferred Stock are issued and outstanding;
and
d. 60,000 shares of Series B Preferred Stock are issued and outstanding.
Stock Options
No stock options are issued at this time.
Warrants
No warrants are issued at this time.
Pending Forward Split of Common Stock
A Certificate of Change Pursuant to NRS 78.209 was filed on July 8, 2008 to complete a 30 for 1 forward split of the common stock. The forward split is effective July 18, 2008 and will result in the authorized capital being:
a. 27,000,000,000 shares of Common Stock with a par value of $0.001 per
share; and
b. 50,000,000 shares of Preferred Stock with a par value of $0.001 per share.
All issued and outstanding shares of Common Stock of Typhoon Touch Technologies, Inc. will be adjusted accordingly.
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Schedule 3(e) - No Conflicts
No conflicts as defined in Section 3(e) of the Agreement to disclose.
Schedule 3(f) - 1934 Act Filings
Regulatory Correspondence
Letter from SEC dated April 24, 2008 confirming no further comments on Schedule 14A filing.
Letter from SEC dated March 25, 2008 with comments on Schedule 14A filing initially filed March 14, 2008
Late Filings
Form 8-K - Item 4.01. Event: June 16, 2006 - Filing Date: July 13, 2006
Form 8-K - Item 1.01 Event: June 5, 2007 - Filing Date: June 14, 2007
Form 8-K - Item 5.03 Event: May 21, 2008 - Filing Date: May 28, 2008
Form 10-QSB Due: April14, 2007 - Filing Date: April 16, 2007
Form 3 - X. Xxxxxxx. Event: July 12, 2006 - Filing Date: September 25, 2006
Form 4 - X. Xxxxxxx Event: July 1, 2008 - Filing Date: Disposition Report Not Yet Filed
Form 3 - X. Xxxxxxx. Event: February 22, 2008 Filing Date: Initial Report Not Yet Filed
Note: Filings where an extension was filed for quarterly and annual reports were not considered late filings.
Schedule 3(g) - Absence of Certain Changes
Typhoon Touch Technologies, Inc.'s ("Typhoon") financial statements as at February 29, 2008 and for the nine month period then ended were prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities and commitments in the normal course of business. At that time Typhoon had income of $88,035 for the nine month period ended February 29, 2008 (February 28, 2007 - loss of $40,954) and had a working capital deficit of $483,318 at February29, 2008 (May 31, 2007 - $46,263).
Schedule 3(h) - Litigation
On December 5, 2007, Typhoon Touch Technologies, Inc.'s ("Typhoon") commenced in the United States District Court for the Eastern District of Texas, Tyler Division, captioned Typhoon Touch Technologies, Inc. and Nova Mobility Systems, Inc. v. Motion Computing, Inc. and Dell, Inc., Civil Action No. 6:07cv546. In this complaint Typhoon alleges that the defendants have infringed and continue to infringe its U.S. Patent No. 5,379,057 ("the '057 patent") issued January 3, 1995 and entitled "Portable Computer with Touch Screen and Computer System Employing Same," and U.S. Patent No. 5,675,362 ("the '362 patent") issued October 7, 1997 and entitled "Portable Computer with Touch Screen and Computing System Employing Same," through various actions including the manufacturing, selling, offering for sale, and/or importing a variety of portable computer products, including but not limited to tablet PCs, slate PCs,
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handheld PCs, personal digital assistants (PDAs), ultra mobile PCs (UMPCs), smart phones, and/or other products covered by the patents-in-suit.
On February 22, 2008 Typhoon and its licensee and co-plaintiff, Nova Mobility Systems, Inc, reached an out-of-court settlement of the above complaint with defendant Motion Computing, Inc. Motion Computing acknowledged the validity of Typhoon's touch screen patents at issue in the litigation. Dell filed its response to the patent infringement Complaint on January 31, 2008 and was not part of the settlement with Motion Computing.
In March 2008, Typhoon amended the action it commenced in the United States District Court for the Eastern District of Texas, Tyler Division, captioned Typhoon Touch Technologies, Inc. and Nova Mobility Systems, Inc. v. Motion Computing, Inc. and Dell, Inc., Civil Action No. 6:07cv546 to add Xplore Technologies Corporation of America (XLRTF.OB), Electrovaya, Inc. (EFLVF.OB) and Sand Dune Ventures, Inc. (a/k/a TabletKiosk) as defendants.
In June 2008, Typhoon amended the action it commenced in the United States District Court for the Eastern District of Texas, Tyler Division, captioned Typhoon Touch Technologies, Inc. and Nova Mobility Systems, Inc. v. Motion Computing, Inc. and Dell, Inc., Civil Action No. 6:07cv546 to add Apple Inc. (NASDAQ: AAPL), Fujitsu Computer Systems Corporation, Toshiba America Information Systems, Inc., Lenovo (United States) Inc., Panasonic Corporation of North America, HTC America, Inc., Palm, Inc. (NASDAQ: PALM), Samsung Electronics America, Inc., Nokia Inc. (NYSE: NOK), and LG Electronics USA, Inc.
We know of no other material, active or pending legal proceedings against our company, nor are we involved as a plaintiff in any material proceeding or pending litigation. There are no proceedings in which any of our directors, officers or affiliates, or any registered or beneficial shareholder, is an adverse party or has a material interest adverse to our interest.
In late June 2008, Typhoon was contacted by a third party who had engaged in short sale transactions involving Typhoon's common stock. This person asserted that the rise in the trading price of Typhoon's common stock in June 2008 was the result of alleged reporting violations under the Exchange Act of 1934, as amended. To date, this person has not threatened any litigation or other action in writing, but has stated that he would be satisfied if Typhoon compensated him for his losses accruing from his short sale transactions. Typhoon's legal counsel is evaluating its response, which may include preemptive litigation.
Schedule 3(k) - Intellectual Property Rights
See Schedule 3(h) -Litigation.
Schedule 3(m) - Title
No items as defined in Section 3(m) of the Agreement to disclose.
Schedule 3(q) - Transactions with Affiliates
Management agreement with Xx. Xxxxxxx provides him with a salary of $5,000 per month and 2% net profits received from the licensing or in actions taken on any infringements of Typhoon's touch screen patents through the issuance of Series B Preferred Stock.
Management agreement with Xx.Xxxxxxx provides him with a salary of $3,000 per month and 2% net profits received from the licensing or in actions taken on any infringements of Typhoon's touch screen patents. through the issuance of Series B Preferred Stock.
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EXHIBIT A
FORM OF COMPANY COUNSEL OPINION
Capitalized terms used herein but not defined herein, have the meaning set forth in the Common Stock Purchase Agreement. Based on the foregoing, and subject to the assumptions and qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation existing and in good standing under the laws of the State of Nevada.
2. The Company has the corporate power to execute and deliver, and perform its obligations under, each Transaction Document to which it is a party. The Company has the corporate power to conduct its business as, to the best of our knowledge, it is now conducted, and to own and use the properties owned and used by it.
3. The execution, delivery and performance by the Company of the Transaction Documents to which it is a party have been duly authorized by all necessary corporate action on the part of the Company. The execution and delivery of the Transaction Documents by the Company, the performance of the obligations of the Company thereunder and the consummation by it of the transactions contemplated therein have been duly authorized and approved by the Company's Board of Directors and no further consent, approval or authorization of the Company, its Board of Directors or its stockholders is required. The Transaction Documents to which the Company is a party have been duly executed and delivered by the Company and are the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, liquidation or similar laws relating to, or affecting creditor's rights and remedies.
4. The execution, delivery and performance by the Company of the Transaction Documents, the consummation by the Company of the transactions contemplated thereby including the offering, sale and issuance of the Purchase Shares in accordance with the terms and conditions of the Common Stock Purchase Agreement, and fulfillment and compliance with terms of the Transaction Documents, does not and shall not: (i) conflict with, constitute a breach of or default (or an event which, with the giving of notice or lapse of time or both, constitutes or could constitute a breach or a default), under (a) the Certificate of Incorporation or the Bylaws of the Company, (b) any material agreement, note, lease, mortgage, deed or other material instrument to which to our knowledge the Company is a party or by which the Company or any of its assets are bound, (ii) result in any violation of any statute, law, rule or regulation applicable to the Company, or (iii) to our knowledge, violate any order, writ, injunction or decree applicable to the Company or any of its subsidiaries.
5. The issuance of the Purchase Shares pursuant to the terms and conditions of the Transaction Documents has been duly authorized and the Initial Purchase Shares are validly issued, fully paid and non-assessable, to our knowledge, free of all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights. 10,000,000 shares of Common Stock have been properly reserved for issuance under the Common Stock Purchase Agreement for future issuances of Purchase Shares. When issued and paid for in accordance with the Common Stock Purchase Agreement, the Purchase Shares shall be validly issued, fully paid and non-assessable, to our knowledge, free of all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights.
To our knowledge, the execution and delivery of the Registration Rights Agreement do not, and the performance by the Company of its obligations thereunder shall not, give rise to any rights of any other person for the registration under the 1933 Act of any shares of Common Stock or other securities of the Company which have not been waived.
6. As of the date hereof, the authorized capital stock of the Company consists of ___________ shares of common stock, par value $0.001 per share, of which to our knowledge __________
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shares are issued and outstanding and __________ shares of preferred stock, par value $0.001 per share, of which to our knowledge ____________shares are issued and outstanding. Except as set forth on Schedule 3(c) of the Common Stock Purchase Agreement, to our knowledge, there are no outstanding shares of capital stock or other securities convertible into or exchangeable or exercisable for shares of the capital stock of the Company.
7. Assuming the accuracy of the representations and your compliance with the covenants made by you in the Transaction Documents, the offering, sale and issuance of the 200,000 Initial Purchase Shares to you pursuant to the Transaction Documents was exempt from registration under the 1933 Act and the securities laws and regulations of the State of Washington.
8. Other than that which has been obtained and completed prior to the date hereof, no authorization, approval, consent, filing or other order of any federal or state governmental body, regulatory agency, or stock exchange or market, or any court, or, to our knowledge, any third party is required to be obtained by the Company to enter into and perform its obligations under the Transaction Documents or for the Company to issue and sell the Purchase Shares as contemplated by the Transaction Documents.
9. The Common Stock is registered pursuant to Section 12(g) of the 1934 Act. To our knowledge, since July 12, 2006, except as disclosed on Schedule 3(f) in the Common Stock Purchase Agreement, the Company has been in compliance with the reporting requirements of the 1934 Act applicable to it. To our knowledge, since July 12, 2006, the Company has not received any written notice from the Principal Market stating that the Company has not been in compliance with any of the rules and regulations (including the requirements for continued listing) of the Principal Market.
We further advise you that to our knowledge, except as disclosed on Schedule 3(h) in the Common Stock Purchase Agreement, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body, any governmental agency, any stock exchange or market, or self-regulatory organization, which has been threatened in writing or which is currently pending against the Company, any of its subsidiaries, any officers or directors of the Company or any of its subsidiaries or any of the properties of the Company or any of its subsidiaries.
In addition, we have participated in the preparation of the Registration Statement (SEC File #________) covering the sale of the Purchase Shares (including the Initial Purchase Shares), including the prospectus dated ____________, contained therein and in conferences with officers and other representatives of the Company (including the Company's independent auditors) during which the contents of the Registration Statement and related matters were discussed and reviewed and, although we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, on the basis of the information that was developed in the course of the performance of the services referred to above, considered in the light of our understanding of the applicable law, nothing came to our attention that caused us to believe that the Registration Statement (other than the financial statements and schedules and the other financial and statistical data included therein, as to which we express no belief), as of their dates, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
This Officer's Certificate ("Certificate") is being delivered pursuant to Section 7(e) of that certain Common Stock Purchase Agreement dated as of _________, ("Common Stock Purchase Agreement"), by and between Typhoon Touch Technologies, Inc., a Nevada corporation (the "Company"), and First Strategy Finance Corp. (the "Buyer"). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Common Stock Purchase Agreement.
The undersigned, ___________, ______________ of the Company, hereby certifies as follows:
- I am the _____________ of the Company and make the statements contained in this Certificate;
- The representations and warranties of the Company are true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality or pursuant to the schedules referenced in Section 3 of the Common Stock Purchase Agreement, in which case, such representations and warranties are true and correct without further qualification) as of the date when made and as of the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific date);
- The Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.
- The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
IN WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________.
|
Name: Title: |
The undersigned as Secretary of ________, a ________ corporation, hereby certifies that ___________ is the duly elected, appointed, qualified and acting ________ of _________ and that the signature appearing above is his genuine signature.
___________________________________
Secretary
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EXHIBIT C-1
FORM OF COMPANY RESOLUTIONS
FOR SIGNING PURCHASE AGREEMENT
TYPHOON TOUCH TECHOLOGIES, INC.
(the "Corporation")
DIRECTORS' RESOLUTION AUTHORIZING
PRIVATE PLACEMENT OF SHARES
PURSUANT to the provisions of the Nevada Revised Statutes 78.315, the undersigned, being all of the directors of Typhoon Touch Technologies, Inc., a Nevada corporation (the "Corporation") do hereby consent to and adopt the following resolutions as the action of the Board of Directors for and on behalf of the Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of the Board of Directors:
WHEREAS,
A. The Board of Directors believes that the continuation of the Corporation's pending patent litigation is in the long term best interests of its shareholders;
B. The Corporation requires additional funds to continue the advancement of its patent litigation;
C. The Board of Directors, despite their continued efforts, has been unable to secure and equity line or other traditional bank lines of credit at this stage of the Corporation's development;
D. The Board of Directors has reviewed the current state of the US capital markets, the Corporation's history of limited trading volume, recent stock splits and high risk of its patent litigation and business future prospects in its evaluation of the Corporation's financing prospects in the equity markets. After this review and after talking with several potential investors the Corporation will need to offer its securities at a discount from its public trading price if it is to be successful in raising equity capital at this time;
E. Negotiations with First Strategy Finance Corp., an arms-length party to the Corporation, has resulted in what the Board of Directors believe to be equity financing terms comparable with similar transactions with similar companies;
F. The Board of Directors believes it is in the best interest of the Corporation and its shareholders to conduct a private placement of up to 4,000,000 shares of common stock in the capital of the Corporation (the "Shares") at a purchase price of US$ 5.00 per share for an aggregate price of up to US$ 20,000,000 (the "Offering") in cash with First Strategy Finance Corp., a Panama corporation.
G. There has been presented to the Board of Directors of the Corporation a draft of the Common Stock Purchase Agreement (together with such changes or revisions as may be negotiated by the Corporation's counsel, the "Purchase Agreement") by and between the Corporation and First Strategy Finance Corp. ("First Strategy"), providing for the purchase by First Strategy of up to Twenty Million Dollars ($20,000,000.00) of the Corporation's common stock, par value $0.001 (the "Common Stock");
H. After careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board of Directors, the Board of Directors has determined that it is advisable and in the best interests of the Corporation to engage in the transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance and sale of shares of Common Stock to First Strategy up to the available amount under the Purchase Agreement (the "Purchase Shares").
I. As part of the Offering the Corporation the Corporation has agreed to provide certain registration rights and enter into a Registration Agreement;
27
NOW, THEREFORE, BE IT RESOLVED, that:
Transaction Documents
- The transactions described in the Purchase Agreement are hereby approved
and Xxxxx X. Xxxxxxx (the "Authorized Officer") is authorized to
execute and deliver the Purchase Agreement, and any other agreements or
documents contemplated thereby including, without limitation, a registration
rights agreement (the "Registration Rights Agreement") providing for the
registration of the shares of the Company's Common Stock issuable in respect
of the Purchase Agreement on behalf of the Corporation, with such amendments,
changes, additions and deletions as the Authorized Officers may deem to be
appropriate and approve on behalf of, the Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon.
- The terms and provisions of the Registration Rights Agreement by and among the Corporation and First Strategy are hereby approved and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate and approve on behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon.
- The terms and provisions of the Form of Transfer Agent Instructions (the
"Instructions") are hereby approved and the Authorized Officers are authorized
to execute and deliver the Instructions (pursuant to the terms of the Purchase
Agreement), with such amendments, changes, additions and deletions as the
Authorized Officers may deem appropriate and approve on behalf of, the
Corporation, such approval to be conclusively evidenced by the signature of an
Authorized Officer thereon.
Execution of Purchase Agreement
Issuance of Common Stock
- The Corporation is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to the available amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof.
- The Corporation shall initially reserve 4,000,000 shares of Common Stock for issuance as Purchase Shares after the Commencement under the Purchase Agreement (not including the 200,000 Initial Purchase Shares as defined in the Agreement).
Approval of Actions
- Without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on behalf of the Corporation and to take all such steps as deemed necessary or appropriate, with the advice and assistance of counsel, to cause the Corporation to consummate the agreements referred to herein and to perform its obligations under such agreements.
28
IN WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of July ___, 2008.
| Xxx Xxxxxxx | Xxxxx Xxxxxxx |
being all of the directors of Typhoon Touch Technologies, Inc.
29
EXHIBIT C-2
FORM OF COMPANY RESOLUTIONS APPROVING REGISTRATION STATEMENT
TYPHOON TOUCH TECHOLOGIES, INC.
(the "Corporation")
DIRECTORS' RESOLUTION AUTHORIZING
APPROVAL OF REGISTRATION STATEMENT
PURSUANT to the provisions of the Nevada Revised Statutes 78.315, the undersigned, being all of the directors of Typhoon Touch Technologies, Inc., a Nevada corporation (the "Corporation") do hereby consent to and adopt the following resolutions as the action of the Board of Directors for and on behalf of the Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of the Board of Directors:
WHEREAS,
A. There has been presented to the Board of Directors of the Corporation a Common Stock Purchase Agreement (the "Purchase Agreement") by and among the Corporation and First Strategy Finance Corp. ("First Strategy"), providing for the purchase by First Strategy of up to Twenty Million Dollars ($20,000,000.00) of the Corporation's common stock, par value $0.001 (the "Common Stock"); and
B. After careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board of Directors, the Board of Directors has approved the Purchase Agreement and the transactions contemplated thereby and the Company has executed and delivered the Purchase Agreement to First Strategy; and
C. In connection with the transactions contemplated pursuant to the Purchase Agreement, the Company has agreed to file a registration statement with the Securities and Exchange Commission (the "Commission") registering the Purchase Shares (as herein defined in the Purchase Agreement);
D. The management of the Corporation has prepared and presented to the Board of Directors the attached draft of a Registration Statement on Form SB-2 (the "Registration Statement") in order to register the sale of the Purchase Shares (the "Shares"); and
NOW, THEREFORE, BE IT RESOLVED, that:
Registration Statement
-
The officers and directors of the Corporation be, and each of them hereby is, authorized and directed, with the assistance of counsel and accountants for the Corporation, to prepare, execute and file with the Commission the Registration Statement, which Registration Statement shall be filed substantially in the form presented to the Board of Directors, with such changes therein as the Chief Executive Officer of the Corporation or any Vice President of the Corporation shall deem desirable and in the best interest of the Corporation and its shareholders (such officer's execution thereof including such changes shall be deemed to evidence conclusively such determination); and
-
The officers of the Corporation be, and each of them hereby is, authorized and directed, with the assistance of counsel and accountants for the Corporation, to prepare, execute and file with the Commission all amendments, including post-effective amendments, and supplements to the
30
Registration Statement, and all certificates, exhibits, schedules, documents and other instruments relating to the Registration Statement, as such officers shall deem necessary or appropriate (such officer's execution and filing thereof shall be deemed to evidence conclusively such determination); and
- The execution of the Registration Statement and of any amendments and
supplements thereto by the officers and directors of the Corporation be, and
the same hereby is, specifically authorized either personally or by the
Authorized Officers as such officer's or director's true and lawful
attorneys-in-fact and agents; and
- The Authorized Officers are hereby designated as "Agent for Service" of
the Corporation in connection with the Registration Statement and the filing
thereof with the Commission, and the Authorized Officers hereby are
authorized to receive communications and notices from the Commission with
respect to the Registration Statement; and
- The officers of the Corporation be, and each of them hereby is,
authorized and directed to pay all fees, costs and expenses that may be
incurred by the Corporation in connection with the Registration Statement;
and
- It is desirable and in the best interest of the Corporation that the
Shares be qualified or registered for sale in various states; that the
officers of the Corporation be, and each of them hereby is, authorized to
determine the states in which appropriate action shall be taken to qualify
or register for sale all or such part of the Shares as they may deem
advisable; that said officers be, and each of them hereby is, authorized to
perform on behalf of the Corporation any and all such acts as they may deem
necessary or advisable in order to comply with the applicable laws of any
such states, and in connection therewith to execute and file all requisite
papers and documents, including, but not limited to, applications, reports,
surety bonds, irrevocable consents, appointments of attorneys for service of
process and resolutions; and the execution by such officers of any such
paper or document or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority therefor from
the Corporation and the approval and ratification by the Corporation of the
papers and documents so executed and the actions so taken; and
- If, in any state where the securities to be registered or qualified for
sale to the public, or where the Corporation is to be registered in
connection with the public offering of the Shares, a prescribed form of
resolution or resolutions is required to be adopted by the Board of
Directors, each such resolution shall be deemed to have been and hereby is
adopted, and the Secretary is hereby authorized to certify the adoption of
all such resolutions as though such resolutions were now presented to and
adopted by the Board of Directors; and
- The officers of the Corporation with the assistance of counsel be, and each of them hereby is, authorized and directed to take all necessary steps and do all other things necessary and appropriate to effect the listing of the Shares on the Nasdaq OTC Bulletin Board market, if any.
Approval of Actions
- Without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on behalf of the Corporation and to take all such steps as are deemed necessary or appropriate, with the advice and assistance of counsel, to cause the Corporation to take all such action referred to herein and to perform its obligations incident to the registration, listing and sale of the Shares; and
- The Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name of the Corporation, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed and delivered all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings and to incur and pay all such fees and expenses as in their judgment shall be
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IN WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of July ___, 2008.
| Xxx Xxxxxxx | Xxxxx Xxxxxxx |
being all of the directors of Typhoon Touch Technologies, Inc.
32
EXHIBIT D
FORM OF SECRETARY'S CERTIFICATE
This Secretary's Certificate ("Certificate") is being delivered pursuant to Section 7(k) of that certain Common Stock Purchase Agreement dated as of __________, ("Common Stock Purchase Agreement"), by and between Typhoon Touch Technologies, Inc., a Nevada corporation (the "Company") and First Strategy Finance Corp. (the "Buyer"), pursuant to which the Company may sell to the Buyer up to Twenty Million Dollars ($20,000,000) of the Company's Common Stock, par value $0.001 per share (the "Common Stock"). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Common Stock Purchase Agreement.
The undersigned, ____________, Secretary of the Company, hereby certifies as follows:
- I am the Secretary of the Company and make the statements contained in
this Secretary's Certificate.
- Attached hereto as Exhibit A and Exhibit B are true,
correct and complete copies of the Company's bylaws ("Bylaws") and
Certificate of Incorporation ("Articles"), in each case, as amended through
the date hereof, and no action has been taken by the Company, its directors,
officers or shareholders, in contemplation of the filing of any further
amendment relating to or affecting the Bylaws or Articles.
- Attached hereto as Exhibit C are true, correct and complete
copies of the resolutions duly adopted by the Board of Directors of the
Company on _____________, at which a quorum was present and acting
throughout. Such resolutions have not been amended, modified or rescinded
and remain in full force and effect and such resolutions are the only
resolutions adopted by the Company's Board of Directors, or any committee
thereof, or the shareholders of the Company relating to or affecting (i) the
entering into and performance of the Common Stock Purchase Agreement, or the
issuance, offering and sale of the Purchase Shares and (ii) and the
performance of the Company of its obligation under the Transaction Documents
as contemplated therein.
- As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________.
_________________________
Secretary
The undersigned as ___________ of __________, a ________ corporation, hereby certifies that ____________ is the duly elected, appointed, qualified and acting Secretary of _________, and that the signature appearing above is his genuine signature.
___________________________________
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EXHIBIT E
FORM OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE
COMMITMENTS SHARES AT SIGNING OF THE PURCHASE AGREEMENT
[COMPANY LETTERHEAD]
July __, 2008
Corporate Stock Transfer, Inc.
0000 Xxxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Re: Issuance of Common Shares to First Strategy Finance Corp.
Dear Sirs and Madams,
On behalf of Typhoon Touch Technologies, Inc., (the "Company"), you are hereby instructed to issue as soon as possible 100,000 shares of our common stock in the name of First Strategy Finance Corp.. The share certificate should be dated July 8, 2008 or earliest date thereafter allowed by law. I have included a true and correct copy of a unanimous written consent executed by all of the members of the Board of Directors of the Company adopting resolutions approving the issuance of these shares. The shares should be issued subject to the following restrictive legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER'S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The share certificate should be sent as soon as possible via overnight mail to the following address:
First Strategy Finance Corp.
c/o JTE Finance Ltd.
Xxxxxxxxxxxxxxxxxxxx 00
XX-0000 Xxxxxxx
Xxxxxxxxxxx
Telephone: x00 00 000 0000
Thank you very much for your help. Please call me at 000-000-0000 if you have any questions or need anything further.
Typhoon Touch Technologies, Inc.
BY:_____________________________
Xxxxx X. Xxxxxxx
President & C.E.O.
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