FORM OF SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the __ day of June, 2004, by
and among FIRSTWAVE TECHNOLOGIES, INC., a Georgia corporation (the "Company")
and the purchaser listed on the signature page hereto ("Purchaser").
WHEREAS, the Company desires to issue and sell to Purchaser the number of
shares (the "Shares") of the Series D Convertible Preferred Stock, no par value
per share, of the Company (the "Series D Preferred Stock"), set forth opposite
the Purchaser's name on EXHIBIT A hereto subject to the conditions of this
Agreement, and Purchaser desires to acquire and purchase the Shares;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
SECTION 1. PURCHASE AND SALE.
(a) The Company hereby agrees to, and does hereby, sell,
assign, transfer and convey the Shares to Purchaser, and Purchaser hereby agrees
to, and hereby does, acquire, purchase, and subscribe for the Shares from the
Company, in reliance on and subject to the terms and conditions contained
herein. The aggregate purchase price for the Shares shall be One Hundred Dollars
($100.00) multiplied by the number of Shares set forth opposite the Purchaser's
name on EXHIBIT A hereto (the "Purchase Price").
(b) Contemporaneously with the later of (i) Purchaser's
delivery to Company of an executed counterpart signature page to this Agreement
and (ii) Company's delivery to Purchaser of an executed counterpart signature
page to this Agreement, Purchaser shall deliver the Purchase Price by check
representing current funds delivered to the Company or by wire transfer of
immediately available funds to the account of the Company specified by the
Company in writing delivered to Purchaser with Purchaser's signature page
hereto. Upon due execution and delivery of this Agreement by the Company and
Purchaser, and receipt by the Company of the full Purchase Price, the Company
agrees to deliver to Purchaser a stock certificate representing the Shares and
will overnight mail such stock certificate to the address set forth on such
executed counterpart signature page received from Purchaser.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Purchaser as follows:
(a) ORGANIZATION AND STANDING. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia and has the corporate power and corporate authority to execute
and deliver this Agreement and to carry out the transactions contemplated
hereby. The Company has the corporate power and corporate authority to own,
operate and lease its properties and to carry on its business as is presently
being conducted.
(b) CAPITALIZATION. The authorized capital stock of the
Company consists of 10,000,000 shares of Common Stock, no par value per share
(the "Common Stock"), of which 2,693,431 shares were issued and outstanding (or
under subscription) as of May 13, 2004, and 1,000,000 shares of Preferred Stock,
no par value per share (the "Preferred Stock"), of which Preferred Stock (i)
20,000 shares have been designated as the Series A Preferred Stock (of which
10,000 shares were issued and outstanding at May 13, 2004), (ii) 15,000 shares
have been designated as the Series B Preferred Stock (of which 7,020 shares were
issued and outstanding at May 13, 2004), (iii) 26,667 shares have been
designated as the Series C Preferred Stock (of which 10,000 shares were issued
and outstanding at May 13, 2004), and (iv) 7,500 shares have been designated as
the Series D Preferred Stock.
(c) AUTHORIZATION. The execution, delivery and performance
of this Agreement by the Company, the fulfillment of and the compliance with the
respective terms and provisions hereof and the due consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of the Company (none of which actions
have been modified or rescinded, and all of which actions are in full force and
effect).
(d) BINDING OBLIGATION. When executed and delivered by the
Company, this Agreement will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms.
(e) AUTHORIZED ISSUE OF STOCK. Upon due execution and
delivery by the Company and Purchaser of this Agreement, payment of the full
Purchase Price by Purchaser and delivery by the Company to Purchaser of a
certificate representing the Shares, the Shares will be duly authorized, validly
issued and outstanding, fully-paid and nonassessable and the shares of Common
Stock issuable upon conversion thereof, upon such conversion in accordance with
the articles of designation filed with respect to such Series D Preferred Stock,
will be validly issued, fully paid and nonassessable.
(f) ABSENCE OF VIOLATION. Neither the execution or delivery
of this Agreement by the Company nor the consummation of the transactions
contemplated hereby by the Company constitutes a violation of, default under or
conflicts with any term or provision of the Articles of Incorporation or Bylaws
of the Company.
(g) USE OF PROCEEDS. The cash proceeds to be received by
the Company from the sale of the Series D Preferred Stock, including the Shares,
will be used for working capital and general corporate purposes.
SECTION 3. GENERAL REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to the Company that:
(a) The execution, delivery and performance of this
Agreement by the Purchaser, the fulfillment of and the compliance with the
respective terms and provisions hereof and the due consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of the Purchaser (none of which actions have been
modified or rescinded, and all of which actions are in full force and effect).
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(b) When executed by the Purchaser, this Agreement
(including these representations and warranties) will constitute a valid and
binding obligation of the Purchaser, enforceable in accordance with its terms.
(c) The Shares will be purchased for investment for the
account of the Purchaser and without a view to a sale or the intent of
participating directly or indirectly in a distribution of such securities in
violation of applicable securities laws.
(d) Purchaser acknowledges and agrees that the Shares
(including shares of Common Stock issuable upon conversion of the Shares) will
be issued in reliance upon the exemption from registration contained in or
pursuant to the Securities Act of 1933, as amended (the "Securities Act"),
including Section 4(2) of the Securities Act and Regulation D promulgated
thereunder, and that such Shares will or may also be issued in reliance upon the
exemptions from registration contained in Section 10-5-9 of the Georgia
Securities Act of 1973, and comparable exemptions contained in the securities
laws of other jurisdictions to the extent applicable (the "State Acts"), and
that the transfer of such shares may be restricted or limited as a condition to
the availability of such exemptions. The Shares may be offered for sale, sold,
pledged, hypothecated, disposed of or otherwise transferred only if there is a
registration statement under the Securities Act in effect with respect to such
securities and pursuant to registration under any applicable State Acts covering
such Shares; or in the absence of such registration, only in reliance upon an
opinion of counsel satisfactory to the Company, to the effect that registration
is not required under the Securities Act or under any applicable State Acts. Any
attempt by Purchaser, directly or indirectly, to offer, sell, pledge,
hypothecate, dispose of or otherwise transfer the Shares or any economic or
voting rights relating thereto without complying with the provisions of this
Agreement shall be void and of no effect.
(e) Purchaser recognizes that because of these
restrictions, Purchaser must bear the economic risk of the investment for an
indefinite period of time. Purchaser has adequate means for providing for
Purchaser's current financial needs and personal contingencies and has no need
for liquidity in Purchaser's investment in the Shares. No person or entity,
including the Company or its agents, has ever represented, guaranteed or
warranted to Purchaser, expressly or by implication, the value of or
marketability of the Shares, the approximate or exact length of time Purchaser
will be required to own the Shares, or that the Company will ever achieve any
particular financial, operating or other results.
(f) Purchaser has been supplied with, or has had access to,
all information, including financial statements and other financial information,
of the Company, which Purchaser considered significant in order to evaluate the
merits and rights of an investment in the Company and the Shares, and has had
the opportunity to ask questions of, and to receive answers from, knowledgeable
individuals concerning the Company and the Shares and all such questions have
been answered to the full satisfaction of Purchaser. Purchaser represents that
it has maintained the confidentiality of all such information pursuant to the
terms of its confidentiality and nondisclosure agreement with the Company. In
deciding whether to invest in the Shares, Purchaser is not relying on any oral
or other representations or warranties not expressly set forth in this
Agreement.
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(g) Purchaser understands that no offering statement,
prospectus or offering circular containing information with respect to the
Company or the Shares has been or is to be prepared, and Purchaser has made an
independent inquiry and analysis with respect to the Company and the Shares.
Purchaser represents and warrants that Purchaser is not subscribing to or
purchasing the Shares as a result of any advertisement, article, notice, general
solicitation or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or meeting.
(h) Purchaser personally has such knowledge and experience
in financial, tax and business matters to be capable of evaluating the merits
and risks of an investment in the Company and the Shares and to make an informed
decision with respect thereto. Purchaser represents and warrants that (1) the
financial situation of Purchaser is such that Purchaser can afford to bear the
economic risk of holding the Shares issued hereunder pursuant to the terms of
this Agreement for an indefinite period, (2) Purchaser can afford to suffer the
complete loss of its investment in the Shares, (3) Purchaser has adequate means
of providing for Purchaser's current needs, (4) Purchaser has no need for
liquidity in this investment, and (5) Purchaser can afford a complete loss of
such investment.
(i) All information which Purchaser has provided to the
Company concerning Purchaser, Purchaser's investor status, financial position
and knowledge and experience in financial, tax and business matters, or, in the
case of a corporation, partnership, limited liability company, trust or other
entity, the knowledge and experience in financial, tax and business matters of
the person making the investment decision on behalf of such entity, is correct
and complete as of the date hereof, and if any material change in such
information occurs subsequent to the delivery by Purchaser of an executed
counterpart signature page, then Purchaser shall immediately provide the Company
with such updated information.
(j) Purchaser acknowledges that the Company may engage in
capital-raising, financing, strategic business combination transactions and
other activities other than the sale of the Series D Preferred Stock which may
include, but are not limited to, the designation and/or sale of additional
shares of Common Stock and/or Preferred Stock, debt which may be convertible
into Common Stock or Preferred Stock and/or additional debt, as well as
purchases and sales of assets, mergers, and other business combinations. Any
such other securities sold may be issued on terms that are more or less
favorable to the purchasers thereof than those terms to which Purchaser agrees
herein. Purchaser acknowledges that there can be no assurance that the Company
will be successful in closing any additional financing, capital raising,
business combination or other transactions, or that the terms of any such
transactions will be favorable to Purchaser or any other person.
SECTION 4. CERTAIN REPRESENTATIONS AND WARRANTIES OF PURCHASER RELATING
TO SECURITIES EXEMPTIONS. In order to establish the Company's compliance with
the Securities Act and Regulation D of the Securities and Exchange Commission,
Purchaser hereby represents and warrants to the Company that Purchaser qualifies
as an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D of the Securities Act because Purchaser is one or more of the following:
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(a) a natural person whose individual net worth or joint
net worth with spouse at the time of purchase exceeds $1,000,000;
(b) a natural person who had individual income in excess of
$200,000 each of the two most recent years or joint income with spouse in excess
of $300,000 in those years and has a reasonable expectation of reaching the same
income level in the current year;
(c) a trust with total assets in excess of $5,000,000 not
formed for the specific purpose of acquiring the Shares, whose purchase is
directed by a sophisticated person as defined in Regulation D;
(d) an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"), a corporation,
Massachusetts or similar business trust, or partnership or limited liability
company, not formed for the specific purpose of acquiring the Shares, with total
assets in excess of $5,000,000; or
(e) an entity in which all of the equity owners qualify as
accredited investors under Rule 501 of Regulation D under the Securities Act;
provided, however, that if Purchaser falls under this description, Purchaser has
provided to the Company in writing the names of all equity investors of such
entity and all such investors have executed and delivered to the Company a
certificate representing its "accredited investor" status pursuant to one of the
foregoing clauses of this Section 4.
SECTION 5. INDEMNIFICATION AND OTHER AGREEMENTS.
(a) INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify and
hold harmless the Company, any corporation or entity affiliated with the Company
and all officers, directors and employees of any of the foregoing and any
professional advisors thereto, from and against any and all loss, damage,
liability or expense, including, without limitation, costs and reasonable
attorneys' fees, to which they may become subject or which they may incur by
reason of or in connection with any misrepresentation made by Purchaser herein,
any breach of any of Purchaser's representations or warranties contained herein,
or Purchaser's failure to fulfill any of Purchaser's covenants or agreements
under this Agreement.
(b) CONFIDENTIALITY. Purchaser shall hold in confidence and not
disclose any financial or other confidential information provided to the
Purchaser in connection with the transactions contemplated hereby, provided,
however, that (i) any of such information may be disclosed to the respective
representatives, agents, professional consultants, accountants, attorneys, and
financial institutions of Purchaser and its beneficial owners, and prospective
purchasers of the Shares, in each case who need to know such information for
proper purposes (it being understood that such persons shall be informed by or
on behalf of the Purchaser of the confidential nature of such information and
directed to treat such information confidentially in accordance herewith, and,
in the case of any such prospective purchaser, such prospective purchaser shall
be required to execute and deliver a written agreement containing an agreement
of confidentiality in favor of the
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Company at least as restrictive as the restrictions imposed upon the Purchaser
hereunder), (ii) any other disclosure of such information may be made to which
the Company consents in writing, and (iii) any other disclosure may be made to
the extent the Purchaser reasonably determines disclosure to be required by law,
or by subpoena, civil investigative demand, or similar process, or by any
request of any governmental agency or regulatory authority. If the Purchaser is
requested or determines that Purchaser is legally compelled to make any
disclosure any of such information, the Purchaser will provide the Company with
written notice so that the Company may seek a protective order or other
appropriate remedy. The obligations of Purchaser under this Section 5(b) are in
addition to, and not in lieu of, any other confidentiality or similar
obligations or agreements of Purchaser to or with the Company.
SECTION 6. LEGENDS. Purchaser hereby agrees that:
(a) The following legend may be placed upon the face or the back
side of all stock certificates issued to him representing the Shares at the time
or times that they are issued to Purchaser:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Federal Act") or the Georgia Securities Act, as amended
(the "Georgia Act") but have been acquired by the registered
owner hereof for purposes of investment and in reliance on
the statutory exemptions contained in Section 4(2) of the
Federal Act and in Section 10-5-9 of the Georgia Act. Such
shares may not be sold, pledged, transferred or assigned
except in accordance with those Acts and in compliance with
the terms of that certain Stock Purchase Agreement dated on
or about June __, 2004 entered into with respect to such
shares, a copy of which may be obtained from the issuer of
such shares upon appropriate request."
(b) The Company may instruct its officer or agent in charge of
its stock records not to transfer any of the Shares to any other person or any
other form of registration without compliance with the provisions of Section
3(d) of this Agreement.
SECTION 7. MISCELLANEOUS.
(a) Purchaser agrees that Purchaser may not cancel, terminate or
revoke this Agreement or any agreement of Purchaser made hereunder (except as
otherwise specifically provided herein) and that this Agreement shall survive
the death, disability or dissolution of Purchaser and shall be binding upon
Purchaser's heirs, executors, administrators, successors and assigns. Subject to
timely receipt of the Purchase Price, the Company agrees that it may not cancel,
terminate or revoke this Agreement or any agreement of the Company made
hereunder (except as otherwise specifically provided herein). In the event that
Purchaser fails to deliver the Purchase Price within a timely and prompt manner
as provided by this Agreement, the Company may, upon written notice to the
Purchaser, cancel, terminate and revoke this Agreement with no liability
whatsoever to the Company, and the provisions of this Agreement shall be of no
further force and effect.
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(b) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by all parties.
(c) This Agreement shall be enforced, governed and construed in
all respects in accordance with the laws of the State of Georgia, without
application of the principles of conflicts of laws in a manner that would cause
Georgia law not to be applied to the substance of any controversy.
(d) Purchaser represents and warrants that no broker, finder,
consultant or other person has been retained by, or has acted on behalf of
Purchaser (other than legal and accounting advisors) or is entitled to be paid
based upon any agreements or understandings made by Purchaser in connection with
the transactions contemplated by this Agreement. The Company shall have no
liability for any broker's fee, finder's fee, consultant's fee or similar third
party remuneration by reason of any action of Purchaser, and Purchaser shall
indemnify the Company for any such fees pursuant to Section 5(a).
(e) Neither this Agreement nor any of the parties' rights
hereunder shall be assignable by either party hereto without the prior written
consent of the other party.
(f) For the convenience of the parties, this Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Delivery
of an executed counterpart hereof by facsimile shall be effective as an original
manual delivery of such counterpart. Delivery of such executed counterpart
signature page may be made (1) if to Purchaser, to the address and facsimile
number set forth under Purchaser's signature on the signature page hereto, and
(2) if to the Company, to the following address or facsimile number:
Firstwave Technologies, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(g) Within five (5) days after receipt of a written request from
the Company, Purchaser shall provide such information and execute and deliver
such documents as reasonably may be necessary to comply with any and all laws
and ordinances to which the Company is subject.
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(h) The representations and warranties of both the Company and
Purchaser set forth herein shall survive the sale of the Shares pursuant to this
Agreement.
(i) Time is of the essence with respect to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Series D
Convertible Preferred Stock Purchase Agreement on and as of the day and year
first above written.
COMPANY:
FIRSTWAVE TECHNOLOGIES, INC.:
By:
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Name:
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Title:
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PURCHASER:
By:
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Name:
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Title:
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Address:
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Facsimile:
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EXHIBIT A
Purchaser: NUMBER OF SHARES OF SERIES D
PREFERRED STOCK PURCHASED:
NAME ________________________ ____________________________
EXHIBIT 10.1 SCHEDULE
The foregoing agreement included as Exhibit 10.1 to the Current Report on
Form 8-K was signed by a total of 13 investors purchasing an aggregate of 7,000
shares. Other than the information specific to the investors and the number of
shares purchased by each, there were no material changes to the form of this
agreement.
