Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT made as of October 12, 2001, by and between
Statmon Technologies Corp., a Delaware corporation (the "Company") and Thieme
Securities, Inc., a New York Corporation ("TSI").
WITNESSETH:
WHEREAS, in connection with that certain Placement Agent Agreement by and
between TSI and the Company (the "PAA"), it is anticipated that the company will
sell to certain investors (the "Investors") Common Stock, warrants for the
purchase of Common Stock (the "Investor Warrants") and Secured Promissory Notes
pursuant to which Common Stock may be issued (the "Notes"), and
WHEREAS, in connection with the PAA, it is anticipated that TSI will
receive Common Stock (the "Placement Agent Common Stock") and warrants for the
purchase of Common Stock (the "Placement Agent Warrants"), and
WHEREAS, it is a condition to the obligations of the TSI Investors under
the PAA that this Agreement be executed by the parties hereto, and the parties
are willing to execute this Agreement and to be bound by the provisions hereof;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall be used in this Agreement with the
following respective meanings:
a. "Affiliate" means (i) any Person directly or indirectly controlling,
controlled by or under common control with another Person; (ii) any
Person owning or controlling ten (10%) percent or more of the
outstanding voting securities of such other Person; (iii) any officer,
director or partner of such Person; and (iv) if such Person is an
officer, director or partner, any such company for which such Person
acts in such capacity.
b. "Commission" means the Securities and Exchange Commission.
c. "Common Stock" means and includes the Company's Common Stock, $.000001
par value per share, as authorized on the date of this Agreement and
any other securities into which or for Common Stock may be converted
or exchanged pursuant to a plan of recapitalization, reorganization,
merger, sale of assets or otherwise.
d. "Exchange Act" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the
Commission (or of any other Federal agency then administering the
Exchange Act) thereunder, all as the same shall be in effect at the
time.
e. "Holder" means any holder of Registrable Stock.
f. "NASD" means the National Association of Securities Dealers, Inc.
g. "Person" means any natural person, partnership, corporation or other
legal entity.
h. "Registrable Stock" means (i) Common Stock purchased by the Investors
and the Placement Agent Common Stock, (ii) Common Stock issued or
issuable upon exercise of the Investor Warrants and Placement Agent
Warrants whether or not such Common Stock is owned by any Investors or
TSI, (iii) Common Stock which may be issued pursuant to the Notes
whether or not such Common Stock is owned by any Investors, and (iv)
any other shares of Common Stock issued in respect of such shares by
way of a stock dividend, or stock split or in connection with a
combination of shares, recapitalization, merger or consolidation or
reorganization; provided, however, that shares of Common Stock shall
only be treated as Registrable Stock if and for so long as they have
not been (v) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (vi)
eligible to be sold by the holder thereof in a transaction exempt from
the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) and subparagraph (k) of Rule 144 so
that all transfer restrictions and restrictive legends with respect to
such Common Stock have been removed by the Company.
i. "Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of
securities of the Company (other than a registration statement on Form
X-0, Xxxx X-0, or successor forms, or any registration statement
covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
j. "Rule 144" means Rule 144 promulgated under the Securities Act.
k. "Securities Act" means the Securities Act of 1933, or any successor
Federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Securities Act)
thereunder, all as the same shall be in effect at the time.
2. REQUIRED REGISTRATION.
a. Subsequent to the earlier of (i) January 1, 2003 or (ii) twelve (12)
months after the effective date of the Company's first Registration
Statement relating to its Common Stock; at any time during the period
ending five years from the date hereof the Holder or Holders of at
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least fifty percent (50%) of the voting power of all Registrable Stock
may by notice in writing to the Company request the Company to
register under the Securities Act all or any portion of shares of
Registrable Stock held by such requesting Holder or Holders for sale
in the manner specified in such notice; provided, however, that the
Company shall not be obligated to register any Common Stock pursuant
to this Section 2a.unless the number of shares of Registrable Stock
requested to be included in such registration exceeds fifty percent
(50%) of the Registrable Stock.
b. The company shill be required to include the Registrable Stock in its
first Registration Statement.
c. Following receipt of any notice given under this Section 2 by Holders
of Registrable Stock requesting registration of a number of
Registrable Stock that meets the magnitude requirements of Section 2a.
hereof, the Company shall immediately notify all Holders from whom
notice has not been received that such registration is to be effected
and shall use its best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified
in such notice from requesting Holders, the number of shares of
Registrable Stock specified in such notice (and in all notices
received by the Company from other Holders) within twenty (20) days
after the giving of such notice by the Company to such other Holders.
The Holders of a majority of the shares of Registrable Stock to be
sold in such offering may designate a managing underwriter of such
offering, subject to the approval of the Company, which approval shall
not be unreasonably withheld or delayed. The Company shall be
obligated to register Registrable Stock pursuant to Section 2a. hereof
on one occasion only, provided, however, that such occasion shall be
deemed to have occurred only when a Registration Statement covering
all shares of Registrable Stock specified in notices received as
aforesaid shall have become effective. A Registration Statement which
does not become effective solely by reason of the refusal of the
requesting Holders to proceed shall be deemed to have been effected by
the Company at the request of such requesting Holders unless such
requesting Holders shall have paid all of the Company's reasonable
expenses in connection with such registration.
d. Notwithstanding anything herein to the contrary, if the Registration
Statement is to cover an underwritten distribution on a firm
commitment basis and in the good faith judgment of the managing
underwriter of such public offering the inclusion of all of the
Registrable Stock requested for inclusion pursuant to this Section 2
would interfere with the successful marketing of a smaller number of
shares, then Xxxxx Xxxxxx, in his sole discretion, may reduce the
number of shares of Registrable Stock to be included in the
Registration Statement to the level recommended by such managing
underwriter, with the participation in such offering to be pro rata
among the Holders requesting or otherwise entitled to such
registration, based upon the number of shares of Registrable Stock
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requested to be registered by such Holders. Xxxxx Xxxxxx may refuse to
reduce the such number of shares of Registrable Stock for any reason
whatsoever and, in so doing, shall incur no liability to the Company.
e. The Company shall be entitled to include in any Registration Statement
referred to in this Section 2, for sale in accordance with the method
of disposition specified by the requesting Holders, shares of Common
Stock to be sold by the Company for its own account, except as and to
the extent that, in the opinion of the managing underwriter, if any,
such inclusion would adversely affect the marketing of the
Registrable Stock to be sold. Except for registration statements on
Form X-0, X-0 or any successor thereto, the Company will not file with
the Commission any other registration statement with respect to its
Common Stock, whether for its own account or that of other
stockholders, from the date of receipt of a notice from requesting
Holders pursuant to this Section 2 until the completion of the period
of distribution of the registration contemplated thereby.
3. INCIDENTAL REGISTRATION. Each time the Company shall determine to file a
Registration Statement in connection with the proposed offer and sale for
money of any of its Common Stock by it, except for the Company's initial
public offering if its Common Stock, the Company will give written notice
of its determination to all Holders. Upon the written request of a Holder
given within twenty (20) days after the giving of any such notice by the
Company, the Company will use commercially reasonable efforts to cause to
be covered by such Registration Statement all shares of Registrable Stock
requested to be covered by such Holder or Holders. If the Registration
Statement is to cover an underwritten distribution, the Company shall use
its commercially reasonable efforts to cause the Registrable Stock
requested for inclusion pursuant to this Section 3 to be included in the
underwriting on the same terms and conditions as the securities otherwise
being sold through the underwriters. If, in the good faith judgment of the
managing underwriter of such public offering, the inclusion of all of the
Registrable Stock requested for inclusion pursuant to this Section 3 and
the other securities intended to be included therein would interfere with
the successful marketing of a smaller number of shares to be offered, then
the number of shares of Registrable Stock and other securities to be
included in the offering (except for shares to be issued by the Company in
an offering initiated by the Company) shall be reduced such that the total
number of shares to be included in such registration is the number of
shares recommended by such managing underwriter, with the participation in
such offering by the Holders, if any, to be pro rata among the holders
thereof requesting such registration, based upon the number of shares of
Registrable Stock requested to be covered by such Holder or Holders. The
rights granted to Holders under this Section 3 shall terminate on the date
four years after the closing of the Company's initial public offering of
its Common Stock.
4. REGISTRATION ON FORM S-3. If at any time (a) a Holder or Holders of fifty
percent (50%) of the voting power of all Registrable Stock request that the
Company file a registration statement on Form S-3 or any successor thereto
for a public offering of all or any portion of the shares of Registrable
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Stock held by such requesting Holder or Holders, the reasonably anticipated
aggregate price to the public of which would exceed $1,000,000, and (b) the
Company is then entitled to use Form S-3or any successor thereto to
register such shares, then the Company shall use commercially reasonable
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition
specified in such notice, the number of shares of Registrable Stock
specified in such notice. Whenever the Company is required by this Section
4 to use commercially reasonable efforts to effect the registration of
Registrable Stock, each of the procedures and requirements of Section 2
(including but not limited to the requirement that the Company notify all
Holders from whom notice has not been received and provide them with the
opportunity to participate in the offering) shall apply to such
registration. The Company shall be obligated to register Registrable Stock
pursuant to this Section 4 on one occasion only; provided, however, that
such occasion shall be deemed to have occurred only when a Registration
Statement covering all shares of Registrable Stock specified in notices
received as aforesaid shall have become effective.
5. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions of Section 2, 3 or 4 hereof to effect the registration of shares
of Registrable Stock under the Securities Act, the Company will, at its
expense, as expeditiously as possible:
a. In accordance with the Securities Act and the rules and regulations of
the Commission, prepare and file with the Commission a Registration
Statement with respect to such securities and use commercially
reasonable efforts to cause such Registration Statement to become and
remain effective until the securities covered by such Registration
Statement have been sold, and prepare and file with the Commission
such amendments to such Registration Statement and supplements to the
prospectus contained therein as may be necessary to keep such
Registration Statement effective and such Registration Statement and
prospectus accurate and complete until the securities covered by such
Registration Statement have been sold.
b. If the offering is to be underwritten in whole or in part, enter into
a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter, if any, of the public
offering and the Holders participating in such offering.
c. Furnish to the participating Holders and to the underwriters such
reasonable number of copies of the Registration Statement, preliminary
prospectus, final prospectus and such other documents as such
underwriters and participating Holders may reasonably request in order
to facilitate the public offering of such securities; (iv) Use its
commercially reasonable efforts to register or qualify the securities
covered by such Registration Statement under such state securities or
blue sky laws of such jurisdictions (i) as shall be reasonably
appropriate for the distribution of the securities covered by such
Registration Statement or (ii) as such participating Holders and
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underwriters may reasonably request within twenty (20) days following
the original filing of such Registration Statement, except that the
Company shall not for any purpose be required to execute a general
consent to service of process, to subject itself to taxation, or to
qualify to do business as a foreign corporation in any jurisdiction
where it is not so qualified.
d. Notify the Holders participating in such registration, promptly after
it shall receive notice thereof, of the date and time when such
Registration Statement and each posteffective amendment thereto has
become effective or a supplement to any prospectus forming a part of
such Registration Statement has been filed.
e. Notify the Holders participating in such registration promptly of any
request by the Commission or any state securities commission or agency
for the amending or supplementing of such Registration Statement or
prospectus or for additional information.
f. Prepare and file with the Commission, promptly upon the request of any
participating Holder, any amendments or supplements to such
Registration Statement or prospectus which, in the opinion of counsel
to representing the Company in such Registration (which counsel is
reasonably acceptable to such participating Holders), is required
under the Securities Act or the rules and regulations thereunder in
connection with the distribution of the Registrable Stock by such
participating Holders.
g. Prepare and promptly file with the Commission, and promptly notify
participating Holders of the filing of, such amendments or supplements
to such Registration Statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered under the
Securities Act, any event has occurred as a result of which any such
prospectus or any other prospectus as then in effect would, include an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
h. In case any participating Holder or any underwriter for any Holder is
required to deliver a prospectus at a time when the prospectus then in
circulation is not in compliance with the Securities Act or the rules
and regulations of the Commission, prepare promptly upon request such
amendments or supplements to such Registration Statement and such
prospectus as may be necessary in order for such prospectus to comply
with the requirements of the Securities Act and such rules and
regulations.
i. Advise participating Holders, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the
Commission or any state securities commission or agency suspending the
effectiveness of such Registration Statement or the initiation or
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threatening of any proceeding for that purpose and promptly use
commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued
j. At the request of any participating Holder (i) furnish to such Holder
on the effective date of the Registration Statement or, if such
registration includes an underwritten public offering, at the closing
provided for in the underwriting agreement, an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the Holder
or Holders making such request, covering such matters with respect to
the registration statement, the prospectus and each amendment or
supplement thereto, proceedings under state and Federal securities
laws, other matters relating to the Company, the securities being
registered and the offer and sale of such securities as are
customarily the subject of opinions of issuer's counsel provided to
underwriters in underwritten public offerings and (ii) use its
commercially reasonable efforts to furnish to such Holder letters
dated each such effective date and such closing date, from the
independent certified public accountants of the Company, addressed to
the underwriters, if any, and to the Holder or Holders making such
request, stating that they are independent certified public
accountants within the meaning of the Securities Act and dealing with
such matters as the underwriters may request, or, if the offering is
not underwritten, that in the opinion of such accountants the
financial statements and other financial data of the Company included
in the Registration Statement or the prospectus or any amendment or
supplement thereto comply in all material respects with the applicable
accounting requirements of the Securities Act, and additionally
covering such other financial matters, including information as to the
period ending not more than five (5) business days prior to the date
of such letter with respect to the Registration Statement and
prospectus, as such requesting Holder or Holders may reasonably
request.
k. Use its best efforts to assist in the obtaining of all necessary
approvals from the NASD.
6. EXPENSES.
a. With respect to, each registration effected pursuant to Section 2, 3
or 4 hereof, all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith shall be
borne by the Company; provided, however, (i) that Holders
participating in any such registration shall bear their pro rata share
of the underwriting discounts and selling commissions and (ii) any
fee, cost or expense which does not constitute a normal fee, cost or
expense of such registration and which is attributable solely to a
particular Holder participating in any such registration shall be
borne by such Holder.
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b. The fees, costs and expenses of registration to be borne as provided
in paragraph a. above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for the Company, fees and
disbursements of counsel for the underwriter or underwriters of such
securities (if the Company and/or selling security holders are
otherwise required to bear such fees and disbursements), all legal
fees and disbursements and other expenses of complying with state
securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, reasonable
fees and disbursements of one counsel for the selling security
holders, provided however, that the amount of such counsel's fees and
disbursements to be borne by the Company shall not exceed 1,500 per
each selling security holder, and the premiums and other costs of
policies of insurance insuring the Company against liability arising
out of such public offering.
7. INDEMNIFICATION AND CONTRIBUTION.
a. To the fullest extent permitted by law, the Company will indemnify and
hold harmless each Holder of Registrable Stock which are included in a
Registration Statement filed pursuant to the provisions of this
Agreement and any underwriter (as defined in the Securities Act) for
such Holder, and any Person who controls such Holder or such
underwriter within the meaning of the Securities Act, and each of
their successors, from and against, and will reimburse such Holder and
each such underwriter and controlling Person with respect to, any and
all claims, actions, demands, losses, damages, liabilities, costs and
expenses to which such Holder or any such underwriter or controlling
Person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any prospectus contained
therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arise out of any violation by the
Company of any rule or regulation under the Securities Act applicable
to the Company and relating to action or in action required of the
Company in connection with such registration; provided, however, that
the Company will not indemnify and hold harmless in any such case to
the extent that any such claim, action, demand, loss, damage,
liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in reliance upon and in conformity with written information
furnished by such Holder, such underwriter or such controlling Person
for use in the preparation of such Registration Statement; and
provided, further, that this indemnity shall not be deemed to relieve
any underwriter of any of its due diligence obligations.
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b. Each Holder of shares of the Registrable Stock which are included in a
registration pursuant to the provisions of this Agreement will,
severally and not jointly, indemnify and hold harmless the Company
from and against, and will reimburse the Company with respect to, any
and all losses, damages, liabilities, costs or expenses to which the
Company may become subject under the Securities Act or otherwise, to
the extent that any such loss, damage, liability, cost or expense
arises out of or is based upon any untrue or alleged untrue statement
of any material fact contained in a Registration Statement filed
pursuant to the provisions of this Agreement or any amendment or
supplement thereto, or arises out of or is based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent that
such untrue statement or alleged untrue statement or omission or
alleged omission was so made in reliance upon and in conformity with
information furnished by such Holder for use in the preparation
thereof; provided, however, that the liability of each Holder
hereunder shall be limited to the proportion of any such claim,
action, demand, loss, damage, liability, cost or expense which is
equal to the proportion that the public offering price of the shares
of Registrable Stock sold by such Holder under such Registration
Statement bears to the total offering price of all securities sold
thereunder, but not, in any event, to exceed the proceeds received by
such Holder from the sale provided, further, that this indemnity shall
not be deemed to relieve any underwriter of any of its due diligence
obligations.
c. Promptly after receipt by a party to be indemnified pursuant to the
provisions of paragraph a. or b. of this Section 7 (an "Indemnified
Party") of notice of the commencement of any action involving the
subject matter of the foregoing indemnity provisions, such Indemnified
Party will, if a claim thereof is to be made against the indemnifying
party pursuant to the provisions of paragraph a. or b. of this Section
7, notify the indemnifying party of the commencement thereof; but any
omission to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to an
Indemnified Party otherwise than under this Section 7 and shall not
relieve the indemnifying party from any liability under this Section 7
unless such indemnifying party is prejudiced by such omission. In case
an action is brought against any Indemnified Party and such
Indemnified Party notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate
in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the indemnifying party to such Indemnified Party of
its election so to assume the defense thereof, the indemnifying party
will not be liable to such Indemnified Party pursuant to the
provisions of such paragraph a. and b. for any legal or other expense
subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall be liable to an Indemnified Party for any
settlement of any action or claim without the consent of the
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indemnifying party; no indemnifying party may unreasonably withhold
its consent to any such settlement. No indemnifying party will consent
to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
d. In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any
Holder exercising rights under this Agreement, or any controlling
Person of any such Holder, makes a claim for indemnification pursuant
to this Section 7 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 7 provides for
indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of any such selling Holder
or any such controlling Person in circumstances for which
indemnification is provided under this Section 7; then, and in each
such case, the Company and such Holder will contribute to the
aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that
such Holder is responsible for the portion represented by the
percentage that the aggregate public offering price of the Registrable
Stock offered by such Holder pursuant to the Registration Statement
bears to the aggregate public offering price of all securities offered
pursuant to the Registration Statement, and the Company is responsible
for the remaining portion; provided, however, that, in any such case,
(a) no Person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled
to contribution from any Person or entity who was not guilty of such
fraudulent misrepresentation and (b) no such Holder will be required
to contribute any amount in excess of the public offering price of all
such Registrable Stock offered-by it pursuant to such Registration
Statement.
8. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT.
a. When it is first legally required to do so, the Company shall register
its Common Stock under Section 12 of the Exchange Act and shall keep
effective such registration and shall timely file such information,
documents and reports as the Commission may require or prescribe under
Section 13 of the Exchange Act. From and after the effective date of
the first Registration Statement filed by the Company, the Company
shall (whether or not it shall then be required to do so) timely file
such information, documents and reports as the Commission may require
or prescribe under Section 13 or 15(d) (whichever is applicable) of
the Exchange Act.
b. Immediately upon becoming subject to the reporting requirements of
either Section 13 or 15(d) of the Exchange Act, the Company shall
forthwith upon request furnish any Holder of Registrable Stock a
written statement by the Company that, if true, it has complied with
such reporting requirements.
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c. The Company acknowledges and agrees that the purposes of the
requirements contained in this Section 8 are (i) to enable any such
Holder to comply with the current public information requirement
contained in subparagraph (c) of Rule 144 should such Holder ever wish
to dispose of any of the securities of the Company acquired by it
without registration under the Securities Act in reliance upon Rule
144 (or any other similar or successor exemptive provision), and (ii)
to qualify the Company for the use of Registration Statements on Form
S-3.
d. In addition, the Company shall take such other measures and file such
other information, documents and reports, as shall hereafter be
required by the Commission as a condition to the availability of Rule
144 (or any similar or successor exemptive provision hereafter in
effect) and the use of Form S-3.
e. The Company covenants to use commercially reasonable efforts to
qualify for the use of Form S-3.
9. STOCKHOLDER INFORMATION. The Company may require each Holder of Registrable
Stock as to which any registration is to be effected pursuant to this
Agreement to furnish the Company in a timely manner such information with
respect to such Holder and the distribution of such Registrable Stock as
the Company may from time to time reasonably request in writing and as
shall be required by law or by the Commission in connection therewith.
10. NOTICES. Any notice or other communication in connection with this
Agreement shall be deemed to be delivered if in writing addressed as
provided below and actually delivered at said address. To TSI:
If to the Investors or TSI:
Thieme Securities, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, President
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxxx & Associates, P.A.
Attn: Xxxxxxxx Xxxxxxx Esq.
0000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
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If to the Company:
Statmon Technologies Corp
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx Xxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Fax: 000- 000-0000
or to such other address of which notice is duly given to the other
parties.
11. GOVERNING LAW AND VENUE. This Agreement shall be governed-by, and construed
in accordance with, the laws of the State of New York without giving effect
to its conflicts of laws, rules or principles. Any suit, action or
proceeding with respect to this Agreement shall be brought in the courts of
New York County in the State of New York or in the United States District
Court for the Southern District of New York. The parties hereto hereby
accept the exclusive jurisdiction of those courts for the purpose of any
such suit, action or proceeding. The parties hereto hereby irrevocably
waive, to the fullest extent permitted by law, any objection that any of
them may now or hereafter have to the. laying of venue of any suit, action
or proceeding rising out of or relating to this Agreement or any judgment
entered by any court in respect thereof brought in any of the above
described courts and hereby further irrevocably waive any claim that any
suit, action or proceeding brought in New York County, New York, has been
brought in an inconvenient forum.
12. WAIVERS; AMENDMENTS. This Agreement may be modified or amended, and any
provision hereunder may be waived, only by a writing executed by the
Company and the Holders of at least a majority of the Registrable Stock;
provided, however, that no amendment, modification or waiver shall be
effective if and to the extent that such amendment, modification or waiver
grants to any one or more Investors or TSI any rights more favorable than
any rights granted to all other of them or otherwise treats any other of
them differently than, unless each negatively-affected Person consents to
such amendment, modification or waiver.
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13. OTHER REGISTRATION RIGHTS. The Company shall not grant to any third party
any registration rights more favorable than any of those contained herein,
so long as any of the registration rights under this Agreement remain in
effect, unless the Holders of Registrable Stock are granted rights to
participate together with any such third party in such registration rights.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the respective legal representatives, successors
and assigns of the parties hereto and the Investors provided, however, that
no Investor or Person who acquires Registrable Stock from a Holder
(a "Transferee") shall be entitled to any rights under this Agreement
unless, upon request of the Company, such Investor or Transferee agrees to
be bound by the terms and conditions of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof. To the extent any term
or other provision of any other agreement or instrument by which any party
hereto is bound conflicts with this Agreement, this Agreement will have
precedence over such conflicting term or provision.
17. HEADINGS. Headings in this Agreement are included for reference only and
shall have no effect upon the construction or interpretation of any part of
this Agreement.
18. SEVERABILITY. If any provision of this Agreement shall beheld to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained
herein.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
STATMON TECHNOLOGIES CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
THIEME SECURITIES, INC.
By: /s/
---------------------------
Name:
Title:
14
SCHEDULE A
(Pursuant to paragraph 7.)
UCC FINANCING STATEMENT ADDENDUM
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
================================================================================
9. NAME OF FIRST DEBTOR (1a or 1b) ON RELATED FINANCING STATEMENT
-----------------------------------------------------------------------------
9a. ORGANIZATION'S NAME
-----------------------------------------------------------------------------
OR
-----------------------------------------------------------------------------
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME, SUFFIX
================================================================================
10. MISCELLANEOUS:
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
=================================================================================================================================
11. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME- insert only one name (11a or 11b) - do not abbreviate or combine names
-----------------------------------------------------------------------------------------------------------------------------
11a. ORGANIZATIONS NAME
OR -----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
1lb. INDIVIDUALS'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
---------------------------------------------------------------------------------------------------------------------------------
11c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
---------------------------------------------------------------------------------------------------------------------------------
00x.XXX ID# SSN OR FIN ADD'L INFO RE 11e.TYPE OF ORGANIZATION 11f.JURISDICTION OF ORGANIZATION 11g.ORGANIZATIONAL ID#, if any
ORGANIZATION
DEBTOR [_] NONE
=================================================================================================================================
12. [_] ADDITIONAL SECURED PARTY'S or [_] ASSIGNOR S/P'S NAME - insert only one name (12a or 12b)
-----------------------------------------------------------------------------------------------------------------------------
12a. ORGANIZATION'S NAME
OR -----------------------------------------------------------------------------------------------------------------------------
12b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------
12c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
=================================================================================================================================
13. This FINANCING STATEMENT covers [_] timber to be cut or [_] as-extracted 16. Additional collateral description:
collateral, or is filed as a [_] fixture filing.
14. Description of real estate:
15. Name and address of a RECORD OWNER of above-described real estate
(if Debtor does not have a record interest):
=================================================
17. Check only if applicable and check only one
box.
Debtor is a [_] Trust or [_] Trustee acting with
respect to property held in trust or
[_] Decendent's Estate
=================================================
18. Check only if applicable and check only one
box.
[_] Debtor is a TRANSMITTING UTILITY
[_] Filed in connection with a Manufactured-Home
Transaction - effective 30 years
[_] Filed in connection with a Public-Finance
Transaction - effective 30 years
=================================================================================================================================
Search Request Copy -NATIONAL UCC FINANCING STATEMENT ADDENDUM (FORM UCC1Ad) (REV.07/29/98)
STATMON TECHNOLOGIES CORP.
CERTIFICATE
The undersigned each hereby certifies that 4e is an executive officer of
Statmon Technologies Corp. (the "Company") and that he has been duly elected and
is presently serving in such capacity in accordance with the By-Laws of the
Company.
In order to induce Xxxxxx X. Xxxxx, Esq. ("MCL") to render the opinion, as
hereinafter defined, and recognizing that MCL will rely hereon, the undersigned
hereby further certifies that the undersigned (a) has read carefully and
understood the Placement Agent Agreement by and between the Company and Thieme
Securities, Inc. (the "Placement Agent"), dated October 15, 2001 and the other
agreements referred to therein (collectively, the "Agreement") including the
opinion (the "Opinion"), a copy of which is annexed hereto as Exhibit A, which
is to be delivered by MCL as counsel to the Company to the Placement Agent and
(b) certifies that (i) all statements contained in the Agreement and the Opinion
are true and correct as of the date hereof, and (ii) knows of no fact that would
render any of the statements made by MCL in the Opinion untrue, incorrect or
misleading in any respect in light of the circumstances under which they xxxx
made. The undersigned hereby agree to indemnify MCL in connection with any
breach of the foregoing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 15
day of October, 2001.
STATMON TECHNOLOGIES CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Xxxxxxxx X. Xxxxxx
Chief Executive Officer
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Chief Technology Officer
STATMON TECHNOLOGIES CORP.
October 11, 2001
Xxxx X. Xxxxxxxxx, Esq.
Law Offices of Xxxxxx X. Xxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx Xxxxxxx, Esq.
Xxxxxxx & Associates, P.A.
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Gentlemen:
Please be advised that as of the date hereof, it is the opinion of tine
Company that the fair market value of 250,000 shares of common stock and
warrants to purchase 250,000 shares of common stock at an exercise price of $2
per share does not exceed all aggregate of $12,000, based upon the following:
l. As of June 30, 2001, the Company had an accumulated deficit of
approximately $440,000 and a negative net worth of approximately $190,000.
2. As of June 30, 2001, the Company had a working capital deficit of in excess
of $200,000.
3. In the Company's only capital raising transaction to date, the Company
issued its promissory note in the amount of $250,000 and 250,000 shares of
common stock, as a unit, For a purchase price of $250.000.
4. The holder of the $250,000 note has a first lien against all of the
Company's assets and the Company does not presently have the capability to
repay the loan.
5. The Company has been seeking additional capital since March 2001 on terms
similar to the terms described in the Placement Agent Agreement between
Thieme Securities, Inc. and the Company.
Very truly yours,
STATMON TECHNOLOGIES CORP.
/s/ Xxxxxxxx X. Xxxxxx
----------------------
XXXXXXXX X. XXXXXX
Chief Executive Officer
--------------------------------------------------------------------------------
000 X. Xxxxxx Xxxxx, Xxxxx 000 Phone. (000) 000-0000
Xxx Xxxxxxx, XX 00000 Fax: (000) 000-0000
xxx.xxxxxxx.xxx
CERTIFICATE
Xxxxxxxx X. Xxxxxx, the Chief Executive Officer and Chief Financial
Officer, and Xxxxx Xxxxxx, the Chief Technology Officer, of Statmon Technologies
Corp., a corporation organized under the laws of the State of Delaware (the
"Company"), pursuant to paragraph 13(c) of the Placement Agent Agreement, dated
October 15, 2001, by and between the Company and Thieme Securities, Inc. (the
"Placement Agent") hereby certify on behalf of the Company that:
1. The conditions set forth in Section 13 of the Placement Agent
Agreement are satisfied in all respects; and
2. The representations and warranties of the Company contained in the
Placement Agent Agreement are true and correct at and as of the date
hereof and the Company has complied with all agreements and satisfied
all conditions to be performed or satisfied pursuant to the Placement
Agent Agreement as of the date hereof.
All capitalized terms used herein and not specifically defined herein shall
have the same means as ascribed thereto in the Placement Agent Agreement.
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
15 day of October, 2001.
STATMON TECHNOLOGIES CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Chief Executive Officer
and Chief Financial Officer
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Chief Technology Officer
EXHIBIT J
OPINION OF COMPANY'S COUNSEL
XXXXXX X. XXXXX
000 Xxxxx Xxxxxx, 00Xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000 x 000
Telecopier: (000) 000-0000
lichtsrndn@yahoo. com
October 15, 2001
Thieme Securities, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I have acted as counsel to Statmon Technologies Corp. (the "Company"), in
connection with (a) the execution and delivery of that certain Placement Agent
Agreement, dated as of October 12, 2001 (the "Placement Agent Agreement"),
between the Company and Thieme Securities, Inc. (the "Placement Agent" ), (b)
the Loan Documents, (c) the Registration Rights Agreement as of October 12, 2001
(the "Registration Rights Agreement"), (c) the Placement Agent Warrant and (d)
the consummation of the transactions contemplated by the Placement Agent
Agreement. This opinion is being furnished to the Placement Agent pursuant to
Section 13 of the Placement Agent Agreement. Whenever capitalized terms are
used, but not defined herein, they shall have the respective meanings ascribed
to such terms in the Placement Agent Agreement.
In such capacity and for the purposes of rendering the opinions hereinafter
expressed, I have examined and relied upon original, reproduced or certified
copies of corporate records, agreements, certificates and other communications
of officers and representatives of the Company and of public officials and such
other documents as I have deemed relevant or necessary as a basis for such
opinion. Specifically, I have examined original, certified, photostatic or
conformed copies of (i) the corporate proceedings relating to the organization
and existence of the Company, (ii) certificates of public officials relating' to
the existence and good standing of the Company, (iii) the Certificate of
Incorporation and By-laws of the Company as in effect on hereof, (iv) the
corporate proceedings relating to the Company's authorization of (A) the
execution and delivery of the Placement Agent Agreement, (B) the Subscription
Agreements with the Purchasers (the "Subscription Agreements"), (C) the Loan
Documents, (D) the Placement Agent Warrant, (E) the Registration Rights
Agreement and (E) the Warrants to be issued to the Purchasers (the "Warrants")
(v) the Company's letter dated October, 2001 with respect to the valuation of
the Company's shares of Common Stock, a copy of which is annexed hereto and (vi)
the Agreement between Xxxx Xxxx and the Company dated October 12, 200l. In such
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the legal capacity of all persons
executing such documents, the conformity to authentic originals of all documents
submitted to us as reproduced or certified copies and the truth and correctness
of any representations and warranties contained therein.
In addition, I have assumed that all parties, other than the Company, are
duly authorized to enter into all documents and instruments to be executed by
those parties in connection with the Placement Agent Agreement and to consummate
the transactions contemplated thereby in accordance with their respective terms,
and that, upon execution and delivery by those parties, all such documents and
instruments will be valid and binding obligations of those parties enforceable
against those parties in accordance with their respective terms.
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations hereinafter set forth, I am of the opinion that:
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of its state of
incorporation with full corporate power and authority to perform its
obligations under the Placement Agent Agreement, and the Loan
Documents, the Subscription Agreements, Placement Agent Warrant, the
Registration Rights Agreement and the Warrants (all of such documents
hereinafter collectively referred to as the "Company Agreements") and
to conduct its proposed business and is duly qualified or licensed and
in good standing as a foreign corporation in the jurisdiction set
forth in which such qualification or license is required. The Company
has all corporate power and authority to enter into the Company
Agreements and to carry out the provisions and conditions hereof and
thereof, and all consents; authorizations, approvals and orders
required in connection herewith and therewith have been obtained. No
consent, authorization or order of, and no filing with, any court,
government agency or other body is required by the Company for the
issuance of the Securities pursuant to the Subscription Agreements, or
the Placement Agent Warrants except with respect to applicable Federal
and state securities laws.
2. This Company Agreements have been duly and validly authorized by the
Company, and upon due execution by the Company of such agreements,
each will be, valid and binding agreements of the Company, enforceable
in accordance with their respective terms, except to the extent that
(1) the enforceability hereof or thereof may be limited =by
bankruptcy, insolvency, reorganization, moratorium or similar laws
from time to time in effect and affecting the rights of creditors
generally, (2) the enforceability hereof or thereof is subject to
general principles of equity, and (3) the indemnification provisions
herein or therein may he held to be violative of public policy. The
Securities and the Placement Agent Warrant have been duly authorized,
and in the case of the Common Stock underlying the Warrants and the
Placement Agent Warrant, reserved, and when issued and paid for will
be validly issued, fully paid and non-assessable; the holders thereof
or he Securities and the Placement Agent Warrant are not and will not
be subject to the preemptive rights of any stockholder of the Company
which exists on the date hereof under the Company's Certificate of
Incorporation or By-laws or otherwise; and all corporate action
required to be taken for the authorization, issuance and sale of the
Securities has been duly and validly taken by the Company. Neither
sale, the issuance or delivery of the Notes or the other Securities or
compliance with the terms of the Notes, including, but limited to the
payment of the interest thereon. or any of the other Company
Agreements or the transactions contemplated thereby will violate any
applicable usury laws.
-2-
3. The authorized capital stock of the Company consists of 15,000,000
shares consisting of 10,000;000 shares of Common Stock and 5,000,000
shares of Preferred Stock. All securities heretofore issued by the
Company been duly authorized and validly issued in accordance with
applicable law, and are fully paid and non-assessable. Holders of
outstanding securities of the Company have no preemptive rights (by
virtue of holding such securities) under applicable law, the
Certificate of Incorporation or By-laws of the Company, or any other
agreement known to such counsel.
4. 1 am not aware of any action, suit, proceeding at law or in equity or
by or before any governmental instrumentality or agency now pending or
threatened against the Company or any of its properties or in
connection with the Offering or the Company Agreements or the
consummation of the transactions contemplated hereby or thereby.
5. Neither the execution and delivery of the Company Agreements nor the
issue and sale of the Securities or the Placement Agent Warrant nor
the consummation of any of the transactions contemplated therein nor
the compliance by the Company with the terms and provisions thereof,
will result in any violation of, be in conflict with, or constitute a
default under (i) provisions of the Certificate of Incorporation or
the By-laws of the Company; (ii) any judgment, decree or order of any
court or administrative body, or any material agreement, contract,
indenture or other instrument, in each case to which the Company or
any subsidiary of the Company is a party and of which such counsel has
knowledge; or (iii) to my knowledge, any statute or rule or
governmental regulation applicable to the Company. To the best of my
knowledge, the Company has no subsidiaries.
6. No registration under the Act is required in connection with the
issuance and sale of the Securities or the Placement Agent Warrant;
based solely on my review of the agreements listed on Exhibit F of the
Placement Agent Agreement, the corporate proceedings of the Company,
the By-laws and Certificate of Incorporation and discussions with the
Company, and nothing has come to my attention to lead me to believe
that any information contained in the Company Disclosure contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
7. Upon the filing of the Financing Statement in the form attached hereto
with the individual and/or entities as set forth on Schedule A
attached hereto, the Notes, subject to the security interest of Xxxx
Xxxx in connection with a loan of $260,000 to the Company, will be
secured by a first priority security interest on all of the assets of
the Company including those thereafter acquired.
-3-
The foregoing opinion is subject to the following additional exceptions and
limitations:
(1) I express no opinion as to the effect of any bankruptcy, insolvency,
reorganization, fraudulent conveyance, preference, equitable subordination,
moratorium, bulk sales, marshaling or other laws affecting the enforcement of
creditors' right generally.
(2) I express no opinion concerning the application of the doctrines of
waiver, estoppel or election of remedies or the application of equitable
principles when equitable remedies are sought, including the availability of
injunction and specific performance.
(3) I express no opinion as to the enforceability of any provisions
contained in the agreements and instruments referred to herein allowing any
party to exercise any rights without first giving any notice required by
applicable law to the person or entity signatory thereto or bound thereby, nor
do I express any opinion as to the enforceability of any provisions contained in
the agreements and instruments referred to herein (i) relating to delay or
failure by any holder to exercise any right, remedy or option under the
agreements and instruments referred to herein not operating as a waiver, or (ii)
seeking to waive the benefits of any statute of limitations or any applicable
bankruptcy or insolvency law or which waives any rights under any applicable
statutes or rules hereafter enacted or promulgated.
(4) Whenever my opinion with respect to the existence or absence of facts
is indicated to be based on my knowledge, best knowledge, awareness or the like,
it is intended to signify that, except to the extent otherwise stated herein,
the attorneys within my firm who have provided substantive representation to the
Company have actual knowledge of the existence or absence of such facts. Except
to the extent otherwise stated herein, I have based my opinion solely on such
documents and information as have been given to me by the Company and its
principal officers and I have undertaken no independent investigation to
determine the completeness or accuracy of any such documents or information.
(5) I am admitted to the practice of law only in the State of New York. The
opinions set forth herein are based upon the laws of the State of New York, the
corporate law of the State of Delaware and the Federal laws of the United
States. To the extent that the law of other jurisdictions apply directly or
through application of the choice of law doctrine to any document or instrument,
and differ from the effect of the laws of the foregoing, I express no opinion as
to the legality, validity, binding effect or enforceability of any particular
provision thereof.
(6) I express no opinion as to (a) the completeness or accuracy of any
financial statements of the Company, the notes thereto, schedules and other
statistical data. (b) the Company's title to or ownership of any of its assets,
or (c) the Company's financial condition or future operations.
The foregoing opinion is expressed as of the date hereof and I will not be
obligated to advise you if the any applicable laws change or if I become aware
of any facts that might change the opinions expressed herein. The opinion
expressed herein is for the benefit of and may be relied upon only by you and
solely in connection with the consummation of the transactions contemplated
-4-
by the Placement Agent Agreement. Unless otherwise required by law, neither this
opinion nor any extract therefrom or reference hereto shall be published or
delivered to any other person or relied upon for any other purpose without our
express written consent.
Very truly yours,
Xxxxxx X. Xxxxx
-5-
