EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), is entered into
as of March 28, 2002, by and among Centiv, Inc., a Georgia corporation (the
"Company"), and the purchasers identified on Exhibit A to this Agreement (the
"Purchasers").
BACKGROUND
A. Each Purchaser desires to purchase units ("Units") from the Company,
each Unit consisting of (i) one share of the Company's Series A Preferred Stock,
$.001 par value per share (the "Preferred Stock"), having the rights,
preferences and privileges set forth in the Certificate of Designations,
Preferences and Rights attached hereto as Exhibit B ("Certificate of
Designations") and (ii) a warrant to purchase one share of Preferred Stock in
the form attached hereto as Exhibit C (the "Warrants"). The purchase price per
one Unit shall be $10.00 (the "Purchase Price"). The shares of Preferred Stock
are convertible into shares of the Company's Class A Common Stock, $.001 per
share ("Common Stock") in accordance with the Certificate of Designations. The
initial conversion ratio is ten (10) shares of Common Stock for each one (1)
share of Preferred Stock. The Preferred Stock and Warrant included within a Unit
are not linked and may be transferred separate from each other once acquired by
a Purchaser.
B. In connection with the purchase and sale of the Units, the parties to
this Agreement are entering into an Investor Rights Agreement in the form
attached to this Agreement as Exhibit D (the "Investor Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration and
other rights to the Purchasers.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"COMMON STOCK BENEFICIALLY OWNED" with respect to a Purchaser or group
of Purchasers includes all shares of Common Stock then held or acquirable by
such Purchaser or group of Purchasers that were acquired or are acquirable (a)
directly upon exercise of outstanding Warrants and (b) upon conversion of shares
of Preferred Stock, regardless of whether such Preferred Stock was acquired
under this Agreement or was acquired or is acquirable upon exercise of Warrants.
"CONVERSION SHARES" shall mean the shares of Common Stock issuable upon
conversion of the Preferred Stock.
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested in the
Company at the First Closing or Second Closing, as applicable, pursuant to this
Agreement by any Purchaser, as set forth opposite such Purchaser's name on
Exhibit A.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on (i)
the ability of the Company to perform its obligations hereunder (including the
issuance of the Shares and the Warrants), under the Certificate of Designations,
under the Warrants (including the issuance of the Warrant Shares) or under the
Investor Rights Agreement or (ii) the business, operations, prospects,
properties or financial condition of the Company and its subsidiaries, taken as
a whole.
"SECURITIES" shall mean the Shares, the Warrants, the Warrant Shares and
the Conversion Shares.
"SHARES" means the shares of Preferred Stock to be issued and sold by
the Company and purchased by the Purchasers at the First Closing or Second
Closing, as applicable.
"WARRANT SHARES" shall mean the shares of capital stock (whether
Preferred Stock or Common Stock) issuable upon exercise of or otherwise pursuant
to the Warrants.
2. PURCHASE AND SALE OF SHARES AND WARRANTS.
2.1 SALE AND ISSUANCE OF UNITS. The Company has authorized the sale and
issuance of up to 500,000 Units. Subject to the terms and conditions of this
Agreement, the Company will issue and sell to each Purchaser, and such Purchaser
shall purchase from the Company, the number of Units set forth opposite the name
of such Purchaser on Exhibit A at the Purchase Price per Unit, for an aggregate
purchase price equal to the Investment Amount set forth opposite the name of
such Purchaser on Exhibit A. The commitments to purchase Units are the several,
and not joint, obligations of each Purchaser.
2.2 FIRST CLOSING. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 6 and 7 below, the closing of the purchase and
sale of the Units to the Purchasers (the "First Closing Purchasers") designated
on Exhibit A as participating in the First Closing (the "First Closing") shall
be at the offices of Xxxxxxx, Carton &Douglas, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx at 3:00 p.m. Chicago Time on March 28, 2002, or such other date or time
as the parties may mutually agree ("First Closing Date"). At the First Closing,
each First Closing Purchaser shall pay the Company an amount equal to such
Purchaser's Investment Amount by wire transfer to the Company, in accordance
with the Company's written wiring instructions, against delivery of certificates
representing the Shares and duly executed Warrants included in the Units being
purchased by such Purchaser. "Closing" as used in this Agreement shall mean the
First Closing, and "Closing Date" as used in this Agreement shall mean the First
Closing Date.
2.3 SECOND CLOSING. A second closing of the purchase and sale of the
Units to the Purchasers (the "Second Closing Purchasers") designated on Exhibit
A as participating in the Second Closing (the "Second Closing") shall be at the
offices of Xxxxxxx, Carton &Douglas, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
at 12:00 noon Chicago Time on April 15, 2002, or such other date or time as the
Company and the Second Closing Purchasers may mutually agree ("Second Closing
Date"). At the Second Closing, each Second Closing Purchaser shall pay the
Company an amount equal to such Purchaser's Investment Amount by wire transfer
to the Company, in accordance with the Company's written wiring instructions,
against delivery of certificates representing the Shares and duly executed
Warrants included in the Units being purchased by such Purchaser. The Second
Closing Purchasers agree that the only condition to their obligation to purchase
the Units being purchased by such Purchasers is the completion of the First
Closing.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Each Purchaser severally and not jointly represents and warrants to the
Company as follows:
3.1 PURCHASE FOR OWN ACCOUNT. The Purchaser is purchasing the Securities
for the Purchaser's own account and not with a present view towards the
distribution thereof. The Purchaser understands that the Purchaser must bear the
economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), and any applicable state securities or blue sky laws or an exemption from
such registration is available, and that the Company has no present intention of
registering any such Securities other than as contemplated by the Investor
Rights Agreement. Notwithstanding anything in this Section 3.1 to the contrary,
by making the foregoing representation, the Purchaser does not agree to hold the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption from registration under the Securities
Act and any applicable state securities laws.
3.2 INFORMATION. The Purchaser has been furnished all materials relating
to the business, finances and operations of the Company and its subsidiaries and
materials relating to the offer and sale of the Securities which have been
requested by the Purchaser. The Purchaser has been afforded the opportunity to
ask questions of the Company and has received satisfactory answers to any such
inquiries. Neither such inquiries nor any other due diligence investigation
conducted by the Purchaser or its counsel or any of its representatives shall
modify, amend or affect the Purchaser's right to rely on the Company's
representations and warranties contained in Section 4 below.
2
3.3 GOVERNMENTAL REVIEW. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
3.4 AUTHORIZATION; ENFORCEMENT. The Purchaser has the requisite power
and authority to enter into and perform its obligations under this Agreement and
to purchase the Units in accordance with the terms hereof. This Agreement has
been duly and validly authorized, executed and delivered on behalf of the
Purchaser and is a valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.5 TRANSFER OR RESALE. The Purchaser understands that (i) except as
provided in the Investor Rights Agreement, the Securities have not been and are
not being registered under the Securities Act or any state securities laws, and
may not be transferred unless (a) subsequently registered thereunder, (b) the
Purchaser shall have delivered to the Company an opinion of counsel reasonably
acceptable to the Company (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the Securities to be sold or transferred may be sold or transferred under an
exemption from such registration, (c) sold under Rule 144 promulgated under the
Securities Act (or a successor rule), or (d) sold or transferred to an affiliate
of the Purchaser pursuant to an exemption under the Securities Act; and (ii)
neither the Company nor any other person is under any obligation to register
such Securities under the Securities Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder, in each case,
other than pursuant to the Investor Rights Agreement.
3.6. LEGENDS. The Purchaser understands that the Shares, the shares of
Preferred Stock issuable upon Warrant exercise and the Warrants and, until such
time as the Conversion Shares and shares of Common Stock issuable directly upon
exercise of the Warrants have been registered under the Securities Act as
contemplated by the Investor Rights Agreement or otherwise may be sold by the
Purchaser under Rule 144, the certificates for such Conversion Shares and other
shares of Common Stock may bear a restrictive legend in substantially the
following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of
any state of the United States. The securities represented hereby may
not be offered or sold in the absence of an effective registration
statement for the securities under applicable securities laws unless
offered, sold or transferred under an available exemption from the
registration requirements of those laws. "
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if, (a) the sale of such Security is registered under the Securities
Act, (b) such holder provides the Company with an opinion of counsel, in form,
substance and scope customary for opinions of counsel in comparable
transactions, to the effect that a public sale or transfer of such Security may
be made without registration under the Securities Act or (c) such holder
provides the Company with reasonable assurances that such Security can be sold
under Rule 144(k). The Purchaser agrees to sell all Securities, including those
represented by a certificate(s) from which the legend has been removed, pursuant
to an effective registration statement or under an exemption from the
registration requirements of the Securities Act. In consideration of such
removal, the Purchaser agrees and covenants that in connection with the
registration of such Securities, it will sell all Securities in accordance with
the plan of distribution contained in the registration statement pursuant to
which it is selling its Securities, it will deliver a prospectus in accordance
with the prospectus delivery requirements of the Securities Act, and in the
event that the Company informs such Purchaser that the registration statement
has ceased to be effective under the Securities Act, such Purchaser shall, at
the request of the Company, return its Securities for legending unless at such
time such Securities may be sold under Rule 144(k).
3.7 ACCREDITED INVESTOR STATUS. The Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D promulgated by
the Securities and Exchange Commission ("SEC") under the Securities Act
("Regulation D").
3
3.8 COMPANY RELIANCE. The Purchaser understands that the Shares are
being offered and sold and the Warrants are being issued to it in reliance on
specific exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying upon the truth and
accuracy of, and the Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments, and understandings of the Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Securities.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company and each of its
subsidiaries is a corporation duly organized and existing under the laws of the
jurisdiction in which it is incorporated, and has the requisite corporate power
to own its properties and to carry on its business as now being conducted. The
Company and each of its subsidiaries is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the nature
of the business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. Section 4.1 of
Schedule 4 to this Agreement (the "Disclosure Schedule") sets forth the
Company's jurisdiction of incorporation and the name of each of the Company's
subsidiaries and its jurisdiction of incorporation. All of the Company's
business operations are conducted through the Company, except the printing
services business which is conducted through CalGraph Technology Services, Inc.,
a wholly-owned subsidiary of the Company.
4.2 AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, the Certificate of Designation, the Warrants and the Investor
Rights Agreement, to issue and sell the Shares and the Warrants in accordance
with the terms hereof, to issue the Warrant Shares upon exercise of the Warrants
in accordance with the terms of the Warrants and to issue the Conversion Shares
upon conversion of the Preferred Stock in accordance with the Certificate of
Designations; (ii) the execution, delivery and performance of this Agreement,
the Warrants and the Investor Rights Agreement by the Company, the adoption and
filing of the Certificate of Designations and the consummation by it of the
transactions contemplated hereby and thereby (including, without limitation, the
reservation for issuance and issuance of the Shares and the issuance of the
Warrants, and the reservation for issuance and issuance of the Warrant Shares
and Conversion Shares) have been duly authorized by the Company's Board of
Directors and no further consent or authorization of the Company, its Board of
Directors or its stockholders is required; (iii) this Agreement has been duly
executed and delivered by the Company; (iv) the Certificate of Designations has
been duly filed with the Georgia Secretary of State; and (v) this Agreement
constitutes, and, upon execution and delivery by the Company of the Investor
Rights Agreement and the Warrants, such agreements will constitute, valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
4.3 CAPITALIZATION. The capitalization of the Company and each of its
subsidiaries as of the date hereof is set forth on Section 4.3 of the Disclosure
Schedule, including the authorized capital stock, the number of shares issued
and outstanding, the number of shares issuable and reserved for issuance
pursuant to the Company's stock option plans, the number of shares issuable and
reserved for issuance pursuant to securities exercisable for, or convertible
into or exchangeable for any shares of capital stock. Section 4.3 of the
Disclosure Schedule also sets forth the number of Shares to be issued pursuant
to the terms hereof and the number of Warrant Shares to be issued upon the
exercise of the Warrants and the number of Conversion Shares reserved for
issuance upon conversion of the Preferred Stock. All of such outstanding shares
of the Company's capital stock have been, or upon issuance will be, validly
issued, fully paid and nonassessable. The Preferred Stock has the rights,
preferences and privileges set forth in the Certificate of Designations. Except
as set forth in Section 4.3 of the Disclosure Schedule, no shares of capital
stock of the Company (including the Shares and the Warrant Shares) or any of the
subsidiaries are subject to preemptive rights or any other similar rights of the
stockholders of the Company or any liens or encumbrances. Except for the
Securities and as disclosed in Section 4.3 of the Disclosure Schedule, as of the
date of this Agreement, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exercisable or
exchangeable for, any
4
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or such
subsidiaries, and (ii) there are no agreements or arrangements under which the
Company or any of its subsidiaries is obligated to register the sale of any of
its or their securities under the Securities Act (except the Investor Rights
Agreement). Except as set forth in Section 4.3 of the Disclosure Schedule there
are no securities or instruments containing antidilution or similar provisions
that may be triggered by the issuance of the Securities in accordance with the
terms of this Agreement, the Warrants or the Investor Rights Agreement and the
holders of the securities and instruments listed in Section 4.3 of such
Disclosure Schedule have waived any rights they may have under such antidilution
or similar provisions in connection with the issuance of the Securities in
accordance with the terms of this Agreement, the Warrants or the Investor Rights
Agreement. The Company has made available to each Purchaser true and correct
copies of the Company's Certificate of Incorporation as in effect on the date
hereof ("Certificate of Incorporation"), the Company's By-laws as in effect on
the date hereof (the "By- laws") and all other instruments and agreements
governing securities convertible into or exercisable or exchangeable for capital
stock of the Company, except for stock options granted under any employee
benefit plan or director stock option plan of the Company.
4.4 ISSUANCE OF SHARES. The Shares are duly authorized and when issued
and paid for in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and
encumbrances, and will not be subject to preemptive rights or other similar
rights of stockholders of the Company and will not impose personal liability
upon the holder thereof. The Warrant Shares are duly authorized and reserved for
issuance, and, upon exercise of the Warrants in accordance with the terms
thereof, will be validly issued, fully paid and non-assessable and free from all
taxes and liens, claims and encumbrances and will not be subject to preemptive
rights or other similar rights of stockholders of the Company and will not
impose personal liability upon the holder thereof. The Conversion Shares are
duly authorized and reserved for issuance, and, upon conversion of the Preferred
Stock in accordance with the terms of the Certificate of Designations, will be
validly issued, fully paid and non-assessable and free from all taxes and liens,
claims and encumbrances and will not be subject to preemptive rights or other
similar rights of stockholders of the Company and will not impose personal
liability upon the holder thereof.
4.5 NO CONFLICTS. The execution, delivery and performance of this
Agreement, the Investor Rights Agreement and the Warrants 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 Shares, Conversion Shares and the Warrant Shares and the
issuance of the Warrants) will not (i) conflict with or result in a violation of
the Articles of Incorporation or 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 United States
federal and state securities laws and regulations) 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. Neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation, By-laws and other
organizational documents and neither the Company nor any of its subsidiaries is
in default (and no event has occurred which, with notice or lapse of time or
both, would put the Company or any of its subsidiaries in default) under, nor
has there occurred any event giving others (with notice or lapse of time or
both) 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, except for actual or possible violations, defaults or
rights as would not, individually or in the aggregate, have a Material Adverse
Effect. The businesses of the Company and its subsidiaries are not being
conducted in violation of any law, ordinance or regulation of any governmental
entity, except for actual or possible violations, if any, the sanctions for
which either singly or in the aggregate would not have a Material Adverse
Effect. Except as specifically contemplated by this Agreement or the Warrants
and as required under the Securities Act and any applicable state securities
laws, the Company is not required to obtain any consent, approval, authorization
or order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement (including,
without limitation, the issuance and sale of the Shares and Warrants as provided
hereby), the Certificate of Designations (including the issuance of the
Conversion Shares) or the Warrants (including the issuance of the Warrant
Shares), in each case in accordance with the terms hereof or thereof. The
Company is not in violation of the listing requirements of the Nasdaq Stock
Market ("Nasdaq") and does not reasonably anticipate that the
5
Common Stock will be delisted by Nasdaq in the foreseeable future based on its
rules (and interpretations thereof) as currently in effect.
4.6. SEC DOCUMENTS; FINANCIAL STATEMENTS. Since January 1, 2000, 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and has filed all
registration statements and other documents required to be filed by it with the
SEC pursuant to the Securities Act (all of the foregoing, including the
financial statements and schedules thereto and documents incorporated by
reference therein, the "SEC Documents"). As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as the case may be, 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,
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. Any statements made in any such SEC Documents that are or were
required to be updated or amended under applicable law have been so updated or
amended. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
applicable with respect thereto. Such financial statements have been prepared in
accordance with United States 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 not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and its
subsidiaries as of the dates thereof and the results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Except as set forth in the
SEC Documents, the Company has no liabilities, contingent or otherwise, other
than (i) liabilities incurred in the ordinary course of business subsequent to
the date of such SEC Documents and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in such SEC Documents,
which liabilities and obligations referred to in clauses (i) and (ii),
individually or in the aggregate, would not have a Material Adverse Effect.
Except as disclosed in the SEC Documents, since December 31, 2000, there has
been no change by the Company in the method for which it accounts for revenues
or expenses under generally accepted accounting principles.
4.7 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the SEC
Documents, since September 30, 2001, there has been no change or development
which individually or in the aggregate has had or could reasonably be expected
to have a Material Adverse Effect.
4.8 ABSENCE OF LITIGATION. Except as disclosed in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, threatened in writing against or affecting the Company, or any of
its subsidiaries, or any of their directors or officers in their capacities as
such which would reasonably be expected to have a Material Adverse Effect or
which would adversely affect the validity, enforceability of, or the authority
or ability of the Company to perform its obligations under this Agreement
(including the issuance of the Shares and the Warrants), the Certificate of
Designations (including the issuance of the Conversion Shares), the Investor
Rights Agreement, the Warrants (including the issuance of the Warrant Shares) or
any other agreement or document delivered pursuant hereto or thereto.
4.9 INTELLECTUAL PROPERTY. The Company and each of its subsidiaries owns
or is licensed to use all patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, permits, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) and
other similar rights and proprietary knowledge (collectively, "Intangibles")
necessary for the conduct of its business as now being conducted and as proposed
to be conducted. To the knowledge of the Company, after reasonable inquiry,
neither the Company nor any of its subsidiaries is infringing or in conflict
with any other person with respect to any Intangibles which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received written notice that it is infringing upon third party
Intangibles. Neither the Company nor any of its subsidiaries has entered into
any consent, indemnification,
6
forbearance to xxx or settlement agreements with respect to the validity of the
Company's or such subsidiary's ownership or right to use its Intangibles and to
the Company's knowledge, after reasonable inquiry, there is no basis for any
claim relating to any consent, indemnification, forbearance to xxx or settlement
agreement with respect to the validity of the Company's or such subsidiary's
ownership or right to use its Intangibles to be successful. The Intangibles are
valid and enforceable, and no registration relating thereto has lapsed, expired
or been abandoned or canceled or is the subject of cancellation or other
adversarial proceedings, and all applications therefor are pending and in good
standing. The Company has complied, in all material respects, with its
contractual obligations relating to the protection of the Intangibles used
pursuant to licenses. To the Company's knowledge, no person is infringing on or
violating the Intangibles owned or used by the Company.
4.10 FOREIGN CORRUPT PRACTICES. Neither the Company, nor any of its
subsidiaries, nor any director or officer, nor, to the Company's knowledge, any
agent, employee or other person acting on behalf of the Company or any of its
subsidiaries has, in the course of such person's actions for, or on behalf of,
the Company, or any of its subsidiaries, used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating
to political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the United States Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
4.11 ENVIRONMENT. Except as disclosed in the SEC Documents (i) there is
no environmental liability, nor factors likely to give rise to any environmental
liability, affecting any of the properties of the Company or any of its
subsidiaries that, individually or in the aggregate, would have a Material
Adverse Effect and (ii) neither the Company nor any of the subsidiaries has
violated any environmental law applicable to it now or previously in effect,
other than such violations or infringements that, individually or in the
aggregate, have not had and will not have a Material Adverse Effect.
4.12 TITLE. The Company and each of its subsidiaries has good title in
fee simple to all real property and good title to all personal property owned by
it which is material to its business, free and clear of all liens, encumbrances
and defects except for liens to secure the Company's bank lines of credit and
such defects in title that, individually or in the aggregate, could not have a
Material Adverse Effect. Any real property and facilities held under lease by
the Company or any of its subsidiaries are held by the Company or such
subsidiary under valid, subsisting and enforceable leases with such exceptions
which have not had and will not have a Material Adverse Effect.
4.13 INSURANCE. The Company and its subsidiaries maintain such insurance
relating to their business, operations, assets, key-employees and officers and
directors as is appropriate to their business, assets and operations, in such
amounts and against such risks as are customarily carried and insured against by
owners of comparable businesses, assets and operations, and such insurance
coverages will be continued in full force and effect to and including the
Closing Date other than those insurance coverages in respect of which the
failure to continue in full force and effect could not reasonably be expected to
have a Material Adverse Effect.
4.14 DISCLOSURE. All information relating to or concerning the Company
and its subsidiaries set forth in this Agreement or provided to the Purchaser in
connection with the transactions contemplated hereby, including the disclosure
contained in Schedule 4, viewed in its entirety, is true and correct in all
material respects and the Company has not omitted to state any material fact
necessary in order to make the statements made herein or therein, in light of
the circumstances under which they were made, not misleading. No event or
circumstance has occurred or exists with respect to the Company or its
subsidiaries or their businesses, properties, operations, prospects or financial
conditions, which has not been publicly disclosed but, under applicable law,
rule or regulation, would be required to be disclosed by the Company in a
registration statement filed on the date hereof by the Company under the
Securities Act with respect to a primary issuance of the Company's securities.
The Company has not provided, and without the Purchaser's request therefore,
will not hereafter provide to the Purchaser, any information which, according to
applicable law, rule or regulation, should have been disclosed publicly by the
Company but which has not been disclosed.
7
4.15 ACKNOWLEDGMENT REGARDING THE PURCHASER'S PURCHASE OF THE
SECURITIES. The Company acknowledges and agrees that the Purchaser is not acting
as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to this Agreement or the transactions contemplated hereby, and the
relationship between the Company and the Purchaser is "arms length" and that any
statement made by the Purchaser or any of its representatives or agents in
connection with this Agreement and the transactions contemplated hereby is not
advice or a recommendation and is merely incidental to the Purchaser's purchase
of Securities and has not been relied upon by the Company, its officers or
directors in any way. The Company further represents to the Purchaser that the
Company's decision to enter into this Agreement has been based solely on an
independent evaluation by the Company and its representatives.
4.16 NO BROKERS. The Company has not engaged any person, whose fees are
being paid exclusively by the Company, to which or to whom brokerage
commissions, finder's fees, financial advisory fees or similar payments are or
will become due in connection with this Agreement or the transactions
contemplated.
4.17 TAX STATUS. The Company and each of its subsidiaries has made or
filed (or has sought extensions for) all material federal, state and local
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent that the
Company or the applicable subsidiary has set aside on its books provisions
adequate for the payment of all unpaid and unreported taxes) and has paid all
taxes and other governmental assessments and charges that are material in
amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its books
provisions adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. Except with
respect to amounts totaling in the aggregate less than $50,000, there are no
unpaid taxes claimed to be due by the taxing authority of any jurisdiction. The
Company has not executed a waiver with respect to any statute of limitations
relating to the assessment or collection of any federal, state or local tax.
Since January 1, 1996, none of the Company's tax returns has been or is being
audited by any taxing authority.
4.18 TRANSACTIONS WITH AFFILIATES. Except for (i) stock options and
stock issuances disclosed in Section 4.3 of the Disclosure Schedule, (ii)
regular salary payments and fringe benefits under an individual's compensation
package with the Company, and (iii) transactions disclosed in Section 4.18 of
the Disclosure Schedule, none of the officers, employees, directors or other
affiliates of the Company are a party to any transactions with the Company or
any of its subsidiaries and there have been no assumptions or guarantees by the
Company or any of its subsidiaries of any obligations of such affiliates or
loans by the Company or any of its subsidiaries to any such affiliates.
4.19 NO GENERAL SOLICITATION. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Securities being offered
hereby.
4.20 NO INTEGRATED OFFERING. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act or cause this offering
of Securities to be integrated with any prior offering of securities of the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions.
4.21 FORM S-3 ELIGIBILITY. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. To the Company's knowledge, after reasonable investigation,
there exist no facts or circumstances (including without limitation any required
approvals or waivers of any circumstances that may delay or prevent the
obtaining of accountant's consents) that would prohibit or delay the preparation
and filing of a registration statement on Form S-3 with respect to the
Registrable Securities (as defined in the Investor Rights Agreement).
4.22 EMPLOYEES AND CONSULTANTS. None of the employees of the Company are
any of its subsidiaries is represented by any labor union, and there is no labor
strike or other labor trouble pending with respect to the Company or any of its
subsidiaries (including, without limitation, any organizational drive) or, to
the Company's knowledge, threatened. No officer or key employee of the Company
has advised the Company (orally or in writing) that he intends to terminate his
employment with the Company. Each employee and consultant of the Company and
8
each subsidiary has executed in favor of the Company or such subsidiary, the
Company's (or such subsidiary's) standard form confidentiality and proprietary
inventions assignment agreement.
5. COVENANTS.
5.1 BEST EFFORTS. The parties shall use their best efforts timely to
satisfy each of the conditions set forth in Section 6 and Section 7 of this
Agreement.
5.2 FORM D. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to each
Purchaser promptly after such filing. The Company shall take such action as the
Company shall reasonably determine is necessary to qualify the Securities for
sale to the Purchasers pursuant to this Agreement under applicable securities or
"blue sky" laws of the states of the United States or obtain exemption
therefrom, and shall provide evidence of any such action so taken to each
Purchaser on or prior to the Closing Date.
5.3 REPORTING STATUS. So long as any Purchaser beneficially owns any
Securities or has the right to acquire any Securities pursuant to this
Agreement, the Certificate of Designations or the Warrants, the Company shall
timely file all reports required to be filed with the SEC pursuant to the
Exchange Act, and shall not terminate its status as an issuer required to file
reports under the Exchange Act even if the Exchange Act or the rules and
regulations thereunder would permit such termination, provided, however, that
the obligations of the Company in this Section 5.3 shall terminate on the date
on which (i) all rights to acquire Securities pursuant to this Agreement, the
Certificate of Designations or the Warrants have been exercised in full or have
expired, and (ii) all Securities beneficially owned by all Purchasers and their
permitted assigns may be immediately sold to the public in a single transaction
pursuant to Rule 144(k) under the Securities Act or otherwise without
registration or restriction.
5.4 EXPENSES. The Company and the Purchasers will each bear their
respective legal and other fees and expenses in connection with the transactions
contemplated in this Agreement; provided, however, the Company shall pay the
reasonable fees and expenses of a single counsel to the Purchasers, not to
exceed $50,000.
5.5 RESERVATION OF SHARES. The Company has and shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock and Preferred Stock to provide for the issuance of the
Shares as provided in Section 2 hereof, the issuance of the Conversion Shares
upon conversion of the Preferred Stock pursuant to the Certificate of
Designations, and the full exercise of the Warrants and the issuance of the
Warrant Shares in connection therewith and as otherwise required hereby and by
the Warrants. The Company shall not reduce the number of shares of Common Stock
and Preferred Stock reserved for issuance under this Agreement (except as a
result of the issuance of the Shares hereunder), the Certificate of Designations
(except as a result of the conversion of the Preferred Stock) or the Warrants
(except as a result of the expiration of the Warrants or the issuance of the
Warrant Shares upon the exercise of the Warrants), without the consent of the
Purchasers.
5.6 LISTING. The Company will use its best efforts to continue the
listing and trading of its Common Stock on Nasdaq and will comply in all
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of Nasdaq.
5.7 CORPORATE EXISTENCE. The Company shall maintain its corporate
existence, except in the event of a merger, consolidation or sale of all or
substantially all of the Company's assets in which the surviving or successor
entity in such transaction (a) assumes the Company's obligations hereunder and
under the Warrants and under the agreements and instruments entered into in
connection herewith and (b) is a publicly traded Company whose common stock is
listed and trades on Nasdaq, the New York Stock Exchange ("NYSE") or the
American Stock Exchange ("AMEX"), provided, however, that the obligations in
this Section 5.7 shall terminate on the date that each Purchaser or its assignee
no longer has any right to acquire Securities pursuant to this Agreement, upon
conversion of the Preferred Stock or upon exercise of the Warrants, and all
Securities beneficially owned by the Purchasers and their permitted assigns may
be immediately sold to the public in a single transaction pursuant to Rule
144(k) under the Securities Act or otherwise without registration or
restriction.
9
5.8 NO INTEGRATED OFFERING. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, shall, directly or
indirectly, make any offers or sales of any security or solicit any offers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act or cause this offering
of Securities to be integrated with any prior or future offering of securities
of the Company for purposes of the Securities Act or any applicable stockholder
approval provisions.
5.9 ISSUANCE OF PREFERRED STOCK. Without the consent of holders of a
majority of the outstanding shares of Preferred Stock (including shares issuable
upon exercise of outstanding Warrants), the Company shall not issue shares of
Preferred Stock at a price per share less than $10.00.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Units to a
Purchaser at the First Closing or Second Closing, as applicable, is subject to
the satisfaction, at or before the Closing Date, of each of the following
conditions; provided, however, that these conditions are for the Company's sole
benefit and may be waived by the Company at any time in its sole discretion.
6.1 EXECUTION OF AGREEMENTS. The applicable Purchaser shall have
executed the signature page to this Agreement and the Investor Rights Agreement,
and delivered the same to the Company.
6.2 PAYMENT OF INVESTMENT AMOUNT. The applicable Purchaser shall have
delivered to the Company such Purchaser's Investment Amount in accordance with
Section 2 above; provided, that the Second Closing Purchasers need only deliver
the Investment Amount by the Second Closing.
6.3 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the applicable Purchaser shall be true and correct as of the date
when made and as of the Closing Date as though made at that time, and the
applicable Purchaser shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the applicable
Purchaser at or prior to the Closing Date.
6.4 NO PROHIBITIONS. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction or any
self-regulatory organization having authority over the matters contemplated
hereby which prohibits the consummation of any of the transactions contemplated
by this Agreement.
6.5 CERTIFICATE OF DESIGNATIONS. The Certificate of Designations shall
have been filed with the Georgia Secretary of State.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND WARRANTS.
The obligation of each Purchaser hereunder to purchase Units to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
7.1 EXECUTION OF AGREEMENTS. The Company shall have executed the
signature pages to this Agreement and the Investor Rights Agreement, and
delivered the same to the Purchaser.
7.2 DELIVERY OF SHARES AND WARRANTS. The Company shall have delivered to
the Purchaser duly executed certificates representing the number of Shares and
duly executed Warrants being purchased by such Purchaser; provided, that with
respect to each Second Closing Purchaser, the Company need only deliver such
certificates by the Second Closing.
10
7.3 NASDAQ LISTING. The Conversion Shares and shares of Common Stock
issuable directly upon exercise of the Warrants shall be listed for quotation on
Nasdaq and trading in the Common Stock (or on Nasdaq generally) shall not have
been suspended or be under threat of suspension by the SEC or Nasdaq.
7.4 REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties of the Company shall be true and correct as of the date when made and
as of the Closing Date as though made at that time and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date. The Purchaser
shall have received a certificate, executed on behalf of the Company by its
Chief Financial Officer, dated as of the Closing Date, to the foregoing effect
and attaching true and correct copies of the resolutions adopted by the
Company's Board of Directors authorizing the execution, delivery and performance
by the Company of its obligations under this Agreement, the Warrants and the
Investor Rights Agreement.
7.5 NO PROHIBITIONS. No statute, rule, regulation, executive order,
decree, ruling, injunction, action, proceeding or interpretation shall have been
enacted, entered, promulgated, endorsed or adopted by any court or governmental
authority of competent jurisdiction or any self-regulatory organization, or the
staff of any thereof, having authority over the matters contemplated hereby
which questions the validity of, or challenges or prohibits the consummation of,
any of the transactions contemplated by this Agreement.
7.6 OPINION LETTER. The Purchaser shall have received a signed opinion
letter of Xxxxxxx, Carton & Xxxxxxx, the Company's counsel with respect to the
transactions under this Agreement, dated as of the Closing Date, covering the
matters set forth in Exhibit E to this Agreement and in form and substance
satisfactory to the Purchasers.
7.7 NO MATERIAL ADVERSE EFFECT. From the date of this Agreement through
the Closing Date, there shall not have occurred any Material Adverse Effect.
7.8 CHAIRMAN OF THE BOARD. Xxxxx Xxxxxxxxx shall have been elected as
Chairman of the Board of Directors of the Company and shall have been issued a
fully vested option to purchase 158,000 shares of Common Stock on terms mutually
agreed by Xx. Xxxxxxxxx and the Company.
7.9 CERTIFICATE OF DESIGNATIONS. The Certificate of Designations shall
have been filed with the Georgia Secretary of State.
8. GOVERNING LAW; MISCELLANEOUS.
8.1 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed in the State of California. Each party hereto
irrevocably consents to the non-exclusive jurisdiction of the United States
federal courts and the state courts located in San Francisco, California in any
suit or proceeding based on or arising under this Agreement. Each party hereto
irrevocably waives the defense of an inconvenient forum to the maintenance of
such suit or proceeding in such courts. Each party hereto further agrees that
service of process upon the Company mailed by first class mail to the address
set forth in Section 8.6 shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any Purchaser to serve process in any other manner permitted
by law. Each party hereto agrees that a final non-appealable judgment in any
such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
8.2 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed signature pages
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
11
8.3 HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
8.4 SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
8.5 ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and by the Purchasers as provided
in Section 8.13 hereof. Any waiver by the Purchasers, on the one hand, or the
Company, on the other hand, of a breach of any provision of this Agreement shall
not operate as or be construed to be a waiver of any other breach of such
provision of or any breach of any other provision of this Agreement. The failure
of the Purchasers, on the one hand, or the Company, on the other hand to insist
upon strict adherence to any term of this Agreement on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
8.6 NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
facsimile, and shall be effective five (5) days after being placed in the mail,
if mailed, one (1) business day after being deposited with a nationally
recognized overnight delivery service, or immediately if delivered personally,
by same-day courier or by confirmed facsimile in each case addressed to a party
in accordance with this Section 8.6. The addresses for such communications shall
be:
If to the Company:
Centiv, Inc.
000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: President
With a copy to:
Xxxxxxx, Carton & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attention: Xxxxxxx Xxxxxx
If to the Purchaser, to the address of such Purchaser set forth on Exhibit A to
this Agreement, with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Each party shall provide notice to the other parties of any change in
address.
8.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
The Purchasers may assign their rights under this Agreement, in whole
12
or in part, in connection with a transfer of the Securities to which such rights
relate. The Company shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers, except in
connection with a merger, consolidation or sale of all or substantially all of
the Company's assets in which the surviving or successor entity in such
transaction (a) assumes the Company's obligations hereunder and under the
Warrants and under the agreements and instruments entered into in connection
herewith and (b) is a publicly traded Company whose common stock is listed and
trades on Nasdaq, NYSE or AMEX.
8.8. SURVIVAL. The agreements and covenants set forth in Section 5 shall
survive the Closing. The representations and warranties of the Purchasers set
forth in Section 3 and of the Company set forth in Section 4 shall survive the
Closing Date, notwithstanding any due diligence investigation conducted by or on
behalf of the Company or the Purchasers, respectively. Moreover, none of the
representations and warranties made by the Company herein shall act as a waiver
of any rights or remedies a Purchaser may have under applicable federal or state
securities laws.
8.9. PUBLICITY. The Company and each Purchaser shall have the right to
review and comment upon the issuance of any press releases, any SEC filing, or
any other public filings or statements with respect to the transactions
contemplated hereby. Each Purchaser shall be provided documents to review at
least two business days prior to the filing or other issuance thereof except
that draft press releases shall be provided to each Purchaser at least one
business day prior to issuance. Within five business days after the Closing
Date, the Company shall file a Current Report on Form 8-K or other appropriate
form with the SEC disclosing the transactions contemplated hereby.
8.10 TERMINATION. In the event that the Closing Date shall not have
occurred on or before May 1, 2002, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date. Notwithstanding
any termination of this Agreement, any party not in breach of this Agreement
shall preserve all rights and remedies it may have against another party hereto
for a breach of this Agreement prior to or relating to the termination hereof.
8.11 JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement, the Investor
Rights Agreement and the Warrants. As such, the language used herein and therein
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party to this Agreement, the Investor Rights Agreement or the Warrants.
8.12 EQUITABLE RELIEF. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to a Purchaser by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Agreement, that a
Purchaser shall be entitled, in addition to all other available remedies, to an
injunction restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or other
security being required.
8.13 DETERMINATIONS. Except as otherwise expressly provided herein, all
amendments, consents, approvals and other determinations to be made by the
Purchasers pursuant to this Agreement and all waivers to or of any provisions in
this Agreement prior to the Closing Date shall be made by Purchasers that have
agreed to invest 66-2/3% of the aggregate Investment Amounts to be invested by
all Purchasers and except as otherwise expressly provided herein, all
amendments, consents, approvals and other determinations to be made by the
Purchasers pursuant to this Agreement and all waivers to or of any provisions in
this Agreement after the Closing Date shall be made by Purchasers who
beneficially own 66-2/3% of the Common Stock Beneficially Owned by all
Purchasers (or their permitted assigns) at the time of such amendment, consent,
approval or other determination.
8.14 CONFLICT WAIVER. Each Purchaser hereby acknowledges that Xxxxxxx
Xxxxxxxx, Esq. is representing the interests of multiple Purchasers in
connection with the transactions contemplated by this Agreement and hereby
waives any conflict of interest with respect to such representation that may
result from particular Purchasers having interests potentially in conflict with
other Purchasers with respect to such transactions.
13
IN WITNESS WHEREOF, the Purchasers and the Company have executed this
Agreement as of the date set forth in the first paragraph of this Agreement.
COMPANY:
CENTIV, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Title: Chief Financial Officer
-----------------------
14
CENTIV, INC.
SECURITIES PURCHASE AGREEMENT
PURCHASER SIGNATURE PAGE
-----------------------------------
(PRINT NAME OF PURCHASER)
-----------------------------------
(SIGNATURE)
-----------------------------------
(PRINTED NAME OF SIGNATORY)
-----------------------------------
(TITLE OF SIGNATORY)
Exhibits and Schedules
Exhibit A - Schedule of Purchasers
Exhibit B - Certificate of Designations, Preferences and Rights
Exhibit C - Form of Warrant
Exhibit D - Investor Rights Agreement
Exhibit E - Form of Opinion of Company Counsel
Schedule 4 - Disclosure Schedule
15
EXHIBIT A
SCHEDULE OF PURCHASERS
-----------------------------------------------------------------------------------------------------------------------------
NUMBER OF UNITS (EACH
CONSISTING OF ONE SHARE OF
PREFERRED STOCK AND A
WARRANT TO PURCHASE ONE
NAME AND ADDRESS SHARE OF PREFERRED STOCK) INVESTMENT AMOUNT FIRST OR SECOND CLOSING
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Inter-Vivos Revocable Trust 10,000 $100,000 First
00000 Xxx Xxxxx
Xxx Xxxx Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------
Sixth Bridge L.P. 5,000 $50,000 First
000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
-----------------------------------------------------------------------------------------------------------------------------
Talkot Crossover Fund 50,000 $500,000 First
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000 x0000
Attention: Xxxxxx X. Xxxx
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx 50,000 $500,000 First
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000 x0000
-----------------------------------------------------------------------------------------------------------------------------
EDJ Limited 10,000 $100,000 Second
c/o Deltec Bank & Trust
Deltec House/Xxxxxx Xxx
P.O. Box N-3229
Nassau, Bahamas
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxx Partners 5,000 $50,000 Second
000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------
16
-----------------------------------------------------------------------------------------------------------------------------
NUMBER OF UNITS (EACH
CONSISTING OF ONE SHARE OF
PREFERRED STOCK AND A
WARRANT TO PURCHASE ONE FIRST OR SECOND CLOSING
NAME AND ADDRESS SHARE OF PREFERRED STOCK) INVESTMENT AMOUNT
-----------------------------------------------------------------------------------------------------------------------------
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 10,000 $100,000 Second
c/o Reedland Capital Partners
00 Xxxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Venture Partners Marathon Fund II, LP 50,000 $500,000 First
Xxxxxxx Venture Partners
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------
Sabre Institutional Partners 3,600 $36,000 First
c/o Barbary Coast Capital Management
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------
ZCM Asset Holding Company, LLC 2,200 $22,000 First
c/o Barbary Coast Capital Management
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Master Fund 19,200 $192,000 First
c/o Barbary Coast Capital Management
Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------
17
-----------------------------------------------------------------------------------------------------------------------------
NUMBER OF UNITS (EACH
CONSISTING OF ONE SHARE OF
PREFERRED STOCK AND A
WARRANT TO PURCHASE ONE FIRST OR SECOND CLOSING
NAME AND ADDRESS SHARE OF PREFERRED STOCK) INVESTMENT AMOUNT
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxx 1,000 $10,000 First
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------------
TOTAL 216,000 $2,160,000
-----------------------------------------------------------------------------------------------------------------------------
18
