EXHIBIT 10.3
PREFERRED STOCK PURCHASE AGREEMENT
Certificate of Incorporation.
1.1 Sale and Issuances of the Convertible Series "J" Preferred Stock and Royalty
Certificate(s).
(a) Subject to the terms and conditions of this Agreement, each Purchaser
severally and not jointly agrees to purchase at the Closing and the Company
agrees to sell and issue to each Purchaser a Convertible Preferred Series "J"
and the Royalty Certificate(s) such Purchaser's on Exhibit A to this Agreement.
The purchase price of Stock and Royal together is $500.00 per share. The
Company's Agreement with each Purchaser's is a separate Agreement, and the sales
of the Stock and Royal certificate(s) to the Purchasers are separate sales.
(b) The Stock, when and if issued upon conversion to common shares and Royal is
hereinafter referred to as the "Securities."**
* Stock-Convertible Preferred Series "J" 1999
* Royal- Royalty Certificate(s)
** Securities-Stock and Royal
1.2 Closing; Delivery. Singing of Agreement, shall take place at the offices
Voyager Group, Inc., 0000 Xxxxx xxx Xxxxx Xxxxx X Xxxxxxxx, Xxxxxxxxxx 00000, at
10:00 a.m., on August 1999 re-affirmed May 1, 2000 by the board directors or at
such other time and place as the Company, the Purchasers purchasing total
majority of all the Convertible Series preferred Stock and Royalty certificates
offered, have mutually agree upon, orally or in writing (which time and place
are designated as the "Closing").
Purchasers have caused a total of fifty thousand to be deposited in the
Company's general Bank account with Union Bank of California account #2300417283
by check payable, or wire transfer on 6/15/99 - May 1, 2000 ove $400,000 in
Loans to the Company.
(b) At the Closing, the Company shall deliver to each Purchaser the Stock and
Royal certificate(s) purchased.
2. Representations and Warranties of the Company. The Company hereby represents
and warrants to each Purchaser's that, except as set forth on the Schedule of
Exceptions delivered on the date hereof, which exceptions shall be deemed to be
Representations and Warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Nevada and has all requisite corporate power and authority to carry on
its business as now conducted. The Company
is qualified to transact business in the State of California and is in good
standing under the laws of the State of California. The Company is not required
to qualify to transact business in any other jurisdiction, except where the
failure so to qualify would not have a material adverse effect on its business
or properties.
2.2 Capitalization. Upon filing of the Designations and Investors Rights the
authorized capital of the Company will consist, immediately prior to the
Closing, of:
(a) One Hundred (100) shares which have been designated Series "J" Preferred
Stock none of which are issued and outstanding immediately prior to the Closing.
All of the outstanding shares of Preferred Stock has been duly authorized, fully
paid and are no assessable, issued in compliance with all applicable federal and
state securities laws, and are convertible into Common Stock on a one (1)
preferred share for two hundred twenty thousand (220,000) basis.
(b) Four(4) Royalty Certificate(s) consisting of four (4%) Of the Total Gross
Sales recorded by the Company and additional grants to Major Investors defined
herein as purchaser's owning over Ten Convertible Series "J" Preferred Stock or
common stock issued upon conversion there of) "Rights of First Offer" defined by
Designations and Investors Rights attached hereto as Exhibit B.
The company shall first make an offering of such securities to Major Investors
first. All of the outstanding shares of Common Stock have been duly authorized,
fully paid and are non assessable and issued in compliance with all applicable
federal and state securities laws.
(c) Conversion privileges of the Convertible Preferred Stock and Royalty
Certificate(s) payments as set forth in the Designations and Investors' Rights
(as defined below), the Company has Know outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock.
2.3 Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization, execution
and delivery of this Agreement, the Designations and Investor Rights Investors'
Rights in the form attached hereto as Exhibit B ( the "Investors' Rights
Agreement") and ( Designations )and collectively with the Investors' Rights
Agreement and this Agreement, the ( "Agreements"),*** the performance of all
obligations of the Company hereunder and thereunder and the authorization,
issuance and delivery of the Securities has been taken or will be taken prior to
the Closing, and the Agreements, when executed and delivered by the Company,
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies, or (ii) to the extent the indemnification provisions contained in the
Investors' Rights Agreement may be limited by applicable federal or state
securities laws.
2.4 Valid Issuance of Securities. The Securities are being issued to the
Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued and free of restrictions on transfer other than restrictions on transfer
under this Agreement, the Investors' Rights and Designations Agreements
applicable state and federal securities laws. The Stock that may be issued to
the Purchasers upon conversion of the Convertible Preferred Stock en duly and
validly reserved for issuance and, when issued and delivered in accordance with
the terms thereof, will be duly and validly issued and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the
Investors' Rights and applicable state and federal securities laws. Based in
part upon the representations of the Purchasers in this Agreement and subject to
the provisions of Section 2.6 below, the Securities will be issued in compliance
with all applicable federal and state securities laws. Neither the Company nor
any agent on its behalf has solicited or will solicit any offers to sell or has
offered to sell or will offer to sell all or any part of the Stock or Royal to
any person or persons so as to bring the sale of such Stock or Royal the Company
within the registration provisions of the Securities Act or any state securities
laws. Except as set forth in Section 2.6, no governmental orders, permissions,
consents, approvals or authorizations are required to be obtained and no
registrations or declarations are required to be filed in connection with the
execution and delivery of this Agreement and the issuance of the Stock, the
Royal or Securities, except such as has been duly and validly obtained or filed,
or with respect to any filings that must be made after the Closing, as will be
filed in a timely manner. The Common Stock when and if issued upon conversion of
the Stock has been duly and validly reserved for issuance, and upon issuance in
accordance with the terms of the designations and Investors Rights will be duly
and validly issued, fully paid and non assessable and free of restrictions on
transfer other than restrictions on transfer under this Agreement, the
Investors' Rights and Designations and applicable federal and state securities
laws and will be issued in compliance with all applicable federal and state
securities laws.
2.5 Governmental Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement.
2.6 Liabilities. The Company has no material liabilities and, to the best of its
knowledge, knows of no material contingent liabilities not disclosed in the
Financial Statements, except current liabilities incurred in the ordinary course
of business subsequent to the Statement Date, which have not been, either in any
individual case or in the aggregate, materially adverse.
*** Agreements- Designations and Investors Rights.
2.7 Litigation. There is no action, suit, proceeding or investigation pending
or, to the Company's knowledge, currently threatened against the Company that
questions the validity of the Agreements or the right of the Company to enter
into them, or to consummate the transactions contemplated hereby or thereby, or
that might result, either individually or in the aggregate, in any material
adverse changes in the assets, condition or affairs of the Company, financially
or otherwise, nor is the Company aware that there is any basis for the
foregoing. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency
or instrumentality. There is no action, suit, proceeding or investigation by the
company currently pending or that the Company intends to initiate.
2.8 Intellectual Property. To its knowledge, the Company owns or possesses
sufficient legal rights to all patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information and proprietary rights
necessary for its business as now conducted without any conflict with, or
infringement of, the rights of others. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business, would violate any of the patents, trademarks, service marks, trade
names, copyrights, trade secrets or other proprietary rights of any other person
or entity. The Company is not aware that any of its employees is obligated under
any contract or other agreement, or subject to any judgment, decree or order of
any court or administrative agency that would interfere with the use of such
employee's best efforts to promote the interest of the Company or that would
conflict with the Company's business. Neither the execution or delivery of this
Agreement, nor the carrying on of the Company's business as now conducted by the
employees of the Company, will, to the Company's knowledge, conflict with or
result in a breach of the terms, conditions, or provisions of, or constitute a
default under, any contract, covenant or instrument under which any such
employee is now obligated. The Company does not believe it is or will be
necessary to use any inventions of any of its employees (or persons it currently
intends to hire) made prior to their employment by the Company.
2.9 Compliance with Other Instruments. The Company is not in violation or
default of any provisions of its Articles of incorporation or Bylaws or in
violation or default of any instrument, judgment, order, writ, decree or
contract to which it is a party or by which it is bound or, to its knowledge, of
any provision of any federal or state statute, rule or regulation applicable to
the Company, the effect of which would have a material adverse effect on the
Company. The execution, delivery and performance of the Agreements and the
consummation of the transactions contemplated hereby or thereby will not result
in any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event, which results
in the creation of any lien, charge or encumbrance upon any assets of the
Company.
2.10 Agreements; Action.
(a) Except for agreements explicitly contemplated hereby there are no
agreements, understandings or proposed transactions between the Company and any
of its officers, directors, affiliate or any affiliate thereof that would be
required to be disclosed pursuant to Regulation S-K, as promulgated by the
Securities and Exchange Commission.
(b) Except for agreements explicitly contemplated by the Agreements, there are
no agreements, understandings, instruments, contracts or proposed transactions
to which the Company is a party or by which it is bound that involve (i)
obligations (contingent or otherwise) of, or payments to, the Company in excess
of, $100,000, (ii) the license of any patent, copyright, trade secret or other
proprietary right to or from the Company (other than standard "off the shelf"
product licenses), or (iii) the grant of rights to manufacture, produce,
assemble, license, market, or sell its products to any other person or affect
the Company's exclusive right to develop, manufacture, assemble, distribute,
market or sell its products.
(c) The Company has not (i) declared or paid any dividends, or authorized or
made any distribution upon or with respect to any class or series of its capital
stock, (ii) incurred any indebtedness for money borrowed or incurred any other
liabilities individually in excess of $10,000 or in excess of $50,000 in the
aggregate, (iii) made any loans or advances to any person, other than ordinary
advances for business expenses, or (iv) sold, exchanged or otherwise disposed of
any of its assets or rights, other than in the ordinary course of business.
(d) For the purposes of subsections (b) and (c) above, all indebtedness,
liabilities, agreements, understandings, instruments, contracts and proposed
transactions involving the same person or entity (including persons or entities
the Company has reason to believe are affiliated therewith) shall be aggregated
for the purpose of meeting the individual minimum dollar amounts of such
subsections.
2.11 No Conflict of Interest. The Company is not indebted, directly or
indirectly, to any of its officers or directors or to they're respective spouses
or children, in any amount whatsoever other than in connection with expenses or
advances of expenses incurred in the ordinary course of business or relocation
expenses of employees. None of the Company's officers or directors, or any
members of their immediate families, are, directly or indirectly, indebted to
the Company (other than in connection with purchases of the Company's stock) or,
to the Company's knowledge, have any direct or indirect ownership interest in
any firm or corporation with which the Company is affiliated or with which the
Company has a business relationship, or any firm or corporation that competes
with the Company except that officers, directors and/or existing stockholders of
the Company may own stock in (but not exceeding two percent of the outstanding
capital stock of) any publicly traded company that may compete with the Company.
To the Company's knowledge, none of the Company's officers or directors or any
members of their immediate families are, directly or indirectly, interested in
any material contract with the Company. The Company is not a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
2.12 Rights of Registration and Voting Rights. Except as contemplated in the
Investors' Rights Agreement, the Company has not granted or agreed to grant any
registration rights, including piggyback rights, to any person or entity.
2.13 Title to Property and Assets. With respect to the property and assets it
leases, the Company is in compliance with such leases and, to its knowledge,
holds a valid leasehold interest free of any liens, claims or encumbrances.
2.14 Changes. Since the Company's inception, there has been:
(g) payments made by the Company to the benefit of former officers or directors,
and members of their immediate families, not made in the ordinary course of its
business;
(h) declaration, setting aside payments and other distribution in respect to any
of the Company's capital stock, which were set aside by the Company;
(i) without Company's knowledge, other event and condition that might materially
and adversely affect the financial condition of the Company;
(j) and arrangements by former officers and directors of the Company to do
things described in this Section 2.14.
2.15 Tax Returns and Payments. The Company has filed all tax returns and reports
as required by law. These returns and reports are true and correct in all
material respects. The Company has paid all taxes and other assessments due.
2.16 Labor Agreements and Actions. The Company is not bound by or subject to
(and none of its assets or properties is bound by or subject to) any written or
oral, express or implied, contract, commitment or arrangement with any labor
union, and no labor union has requested or, to the knowledge of the Company, has
sought to represent any of the employees, representatives or agents of the
Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The employment of each
officer and employee of the Company are terminable at the will of the Company.
To its knowledge, the Company has complied in all material respects with all
applicable state and federal equal employment opportunity laws and with other
laws related to employment. To the Company's knowledge, no employee of the
Company, nor any consultant with whom the Company has contracted, is in
violation of any term of any employment contract, proprietary information
agreement or any other agreement relating to the right of any such individual to
be employed by, or to contract with, the Company because of the nature of the
business to be conducted by the Company that would have a material adverse
effect on the Company; and to the Company's knowledge the continued employment
by the Company of its present employees, and the performance of the Company's
contracts with its independent contractors, will not result in any such
violation that would have a material adverse effect on the Company. To its
knowledge, the Company has not received any notice alleging that any such
violation has occurred.
2.17 Confidential Information and Invention Assignment Agreements. Each
employee, consultant and officer of the Company has executed an agreement with
the Company regarding confidentiality and proprietary information in the form
provided to the Purchasers. The Company is not aware that any of its employees
or consultants is in violation thereof, and the Company will use its best
efforts to prevent any such violation.
2.18 Compliance with Laws; Permits. To its knowledge, the Company is not in
violation of any applicable statute, rule, regulation, order or restriction of
any domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties which
violation would materially and adversely affect the business, assets,
liabilities, financial condition, operations or prospects of the Company. The
Company has all franchises, permits, licenses and any similar authority
necessary for the conduct of its business, the lack of which could materially
and adversely affect the business, properties, prospects, or financial condition
of the Company. The Company is not in default in any material respect under any
of such franchises,
permits, licenses or other similar authority.
2.19 Corporate Documents. The documents and Designations, Investors Rights
restating Certificate of Company articles and Bylaws of the Company are in the
form made available to counsel for the Purchaser's. The copy of the minute books
of the Company made available to the Purchaser's contains minutes of all
meetings of directors and stockholders and all actions by written consent
without a meeting by the directors and stockholders since the date of
incorporation and reflects all actions by the directors and stockholders with
respect to all transactions referred to in such minutes accurately in all
material respects.
2.20 Full Disclosure. This Agreement, the Exhibits hereto, the Agreements and
all other documents delivered by the Company to Purchasers or their attorneys or
agents in connection herewith or therewith or with the transactions contemplated
hereby or thereby, do not contain any untrue statement of a material fact nor,
to the Company's knowledge, omit to state a material fact necessary in order to
make the statements contained herein or therein not misleading in light of the
circumstances under which they were made. To the Company's knowledge, there are
no facts which (individually or in the aggregate) materially adversely affect
the business, assets, liabilities, financial condition, prospects or operations
of the Company that have not been set forth in the Agreements, the Exhibits
hereto, or in other documents delivered to Purchasers or their attorneys or
agents in connection herewith.
3. Representations and Warranties of the Purchaser's. Each Purchaser hereby
represents and warrants to the Company that:
3.1 Authorization. Such Purchaser has full power and authority to enter into
this Agreement. The Agreements, when executed and delivered by the Purchaser,
will constitute valid and legally binding obligations of the Purchaser,
enforceable in accordance with their terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
any other laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies, or (b) to the
extent the indemnification provisions contained in the Investors' Rights may be
limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with the Purchaser
in reliance upon the Purchaser's representation to the Company, which by the
Purchaser's execution of this Agreement, the Purchaser hereby confirms, that the
Securities to be acquired by the Purchaser will be acquired for investment for
the Purchaser's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that the Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, the Purchaser further
represents that the Purchaser does not presently have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
3.3 Disclosure of Information. The Purchaser's has had an opportunity to discuss
the Company's business, management, financial affairs and the terms and
conditions of the offering of the Stock with the Company's management and has
had an opportunity to review the Company's facilities. The Purchaser's
understands that such discussions, as well as any written information delivered
by the Company to the Purchaser's, were intended to describe the aspects of the
Company's business that it believes to be material.
3.4 Restricted Securities. The Purchaser understands that the Securities have
not been, and will not be, registered under the Securities Act, by reason of a
specific exemption from the registration provisions of the Securities Act, which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser's representations as expressed herein. The
Purchaser understands that the Securities are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the Securities indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements are available. The Purchaser acknowledges that the Company has no
obligation to register or qualify the Securities for resale except as set forth
in the Investors' Rights. The Purchaser further acknowledges that if an
exemption from registration or qualification is available, it may be conditioned
on various requirements including, but not limited to, the time and manner of
sale, the holding period for the Securities, and on requirements relating to the
Company that are outside of the Purchaser's control, and which the Company is
under no obligation and May not be able to satisfy.
3.5 No Public Market. The Purchaser understands that no public market now exists
for any of the Securities issued by the Company, and that the Company has made
no assurances that a public market will ever exist for the Securities.
3.6 Legends. The Purchaser's understands that the Securities, and any securities
issued in respect thereof or exchange therefore, may bear one or all of the
following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH
SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Agreements.
(c) Any legend required by the Blue Sky laws of any state to the extent such
laws are applicable to the shares represented by the certificate so legended.
3.7 Accredited Investor. The Purchaser is an accredited investor as defined in
Rule 501(a) of
Regulation D promulgated under the Securities Act.
4. Conditions of the Purchasers' Obligations at Closing. The obligations of each
Purchaser to the Company under this Agreement are subject to the fulfillment, on
or before the Closing, of each of the following conditions, unless otherwise
waived:
4.1 Representations and Warranties. The representations and warranties of the
Company contained in Section 2 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
4.2 Performance. The Company shall have performed and complied with all
covenants, agreements, obligations and conditions contained in this Agreement
that is required to be performed or complied with by it on or before the Closing
and, except as set forth in Section 2.6, the Company shall have obtained any and
all consents, permits and waivers necessary or appropriate for consummation of
the transactions contemplated by the Agreement and the Agreements.
4.3 Reservation of Conversion Shares. The Stock when and if issued upon
conversion of the Convertible Preferred stock and the Securities when and if
issued upon conversion of the Stock shall have been duly authorized and reserved
for issuance upon such conversions.
4.4 Qualifications. Except as described in Section 6, all authorizations,
approvals or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful issuance and sale of the Notes pursuant to this Agreement shall be
obtained and effective as of the Closing.
4.5 Investors' Rights & Designations. The Company, each Purchaser and the
parties thereto shall have executed and delivered the Investors' Rights
Agreement in substantially the form attached as Exhibit B.
4.6 Certifications. The Company shall have filed the appropriate documents with
the Secretary of State of Nevada on or prior to the Closing, which shall
continue to be in full force and effect as of the Closing.
5. Conditions of the Company's Obligations at Closing. The obligations of the
Company to each Purchaser under this Agreement are subject to the fulfillment,
on or before the Closing, of each of the following conditions, unless otherwise
waived:
5.1 Representations and Warranties. The representations and warranties of each
Purchaser contained in Section 3 shall be true and correct in all material
respects on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the Closing.
5.2 Performance. All covenants, agreements and conditions contained in this
Agreement to be performed by the Purchasers on or prior to the Closing shall
have been performed or complied with in all material respects.
5.3 Qualifications. Except as described in Section 6, all authorizations,
approvals or permits, if any, of any governmental authority or regulatory body
of the United States or of any state that are required in connection with the
lawful issuance and sale of the Stock pursuant to this Agreement shall be
obtained and effective as of the Closing.
5.4 Investors' Rights & Designations. The Company and each Purchaser shall have
executed and delivered the Investors' Rights & Designations in substantially the
form attached as Exhibit B.
5.5 Nevada Certificates. The Company shall have filed all documents the
Restating Certificate with the Secretary of State of Nevada on or prior to the
Closing, which shall continue to be in full force and effect as of the Closing.
6. Nevada Law. Holders of Series "J" Preferred Stock, outstanding shall vote as
a separate class.
7. Miscellaneous.
7.1 Survival of Warranties. The warranties, representations and covenants of the
Company and the Purchasers contained in or made pursuant to this Agreement shall
survive any investigation made by any Purchaser and the closing of the
transactions contemplated hereby.
7.2 Transfer; Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.3 Governing Law. This Agreement and all acts and transactions pursuant hereto
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
7.4 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
7.5 Titles and Subtitles. The titles and subtitles used in this Agreement is
used for convenience only and is not to be considered in construing or
interpreting this Agreement.
7.6 Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon delivery, when delivered personally
or by overnight courier or sent by telegram or fax, or forty-eight (48) hours
after being deposited in the U.S. mail, as certified or registered mail, with
postage prepaid, addressed to the party to be notified at such party's address
as set forth on the signature page or Exhibit A hereto, or as subsequently
modified by written notice, and if to the Company.
7.7 Finder's Fee. Each party represents that it neither is nor will be obligated
for any finder's fee or commission in connection with this transaction. Each
Purchaser agrees to indemnify and to hold
harmless the Company from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which each Purchaser or any of its
officers, employees, or representatives are responsible. The Company agrees to
indemnify and hold harmless each Purchaser from any liability for any commission
or compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company or
any of its officers, employees or representatives are responsible.
7.8 Fees and Expenses. If the Closing is consummated, the Company shall pay the
reasonable fees and expenses of one special counsel for the Purchasers, incurred
with respect to this Agreement, the documents referred to herein and the
transactions contemplated hereby and thereby, provided such fees and expenses do
not exceed $15,000. Except as provided above, the Company and each Purchaser
shall pay their respective filing fees and other expense in connection with all
filings they are required by law.
7.9 Attorney's Fees. If any action at law or in equity (including arbitration)
is necessary to enforce or interpret the terms of any of the Agreements, the
prevailing party shall be entitled to reasonable attorneys fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
7.10 Amendments and Waivers. Any term of this Agreement may be amended or waived
only with the written consent of the Company and the Purchasers of at least a
majority of the Convertible Preferred Stock purchased hereunder. Any amendment
or waiver effected in accordance with this Section 7.10 shall be binding upon
the Purchasers and each transferee of the Securities, each future holder of all
such Securities, and the Company.
7.11 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
7.12 Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any party under this Agreement, upon any breach or default of
any other party under this Agreement, shall impair any such right, power or
remedy of such non-breaching or non-defaulting party nor shall it is construed
to be a waiver of any such breach or default, or acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
7.13 Entire Agreement. This Agreement, and the documents referred to herein
constitute the entire agreement between the parties hereto pertaining to the
subject matter hereof, and any and all other written or oral agreements relating
to the subject matter hereof existing between the parties hereto are expressly
canceled.
7.14 Corporate Securities Law. THE SALE OF THE SECURITIES, WHICH ARE THE SUBJECT
OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF THE SECURITIES OR THE PAYMENT OR
RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO THE QUALIFICATION IS
UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY
SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF
ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON THE QUALIFICATION
BEING OBTAINED UNLESS THE SALE IS SO EXEMPT.
7.15 Confidentiality. Except as provided below, each party hereto agrees that,
except with the prior written permission of the other party, it shall at all
times keep confidential and not divulge, furnish or make accessible to anyone
any confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder or the
ownership of Stock purchased hereunder. The provisions of this Section 7.15
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby. Notwithstanding the foregoing, nothing
herein shall prevent any party from disclosing (i) such information which has
been publicly disclosed, (ii) such information which becomes available to the
party on a non-confidential basis from a source other than a party hereto,
provided that such source is not bound by confidentiality with such party, (iii)
information required to be disclosed pursuant to subpoena or other court process
or otherwise required by law and (iv) such information was known to such party
prior to its first receipt from the other party. Notwithstanding the foregoing
provisions of this Section
7.16 Exculpation Among Purchasers. Each Purchaser acknowledges that it is not
relying upon any person, firm or corporation, other than the Company and its
officers and directors, in making its investment or decision to invest in the
Company. Each Purchaser agrees that no Purchaser nor the respective controlling
persons, officers, directors, partners, agents, or employees of any Purchaser
shall be liable to any other Purchaser for any action heretofore or hereafter
taken or omitted to be taken by any of them in connection with the purchase of
the Securities.
The parties have executed this Series "J" Preferred Stock & Royalty Certificate
Purchase Agreement as of the date first written above.
SIGNATURE PAGE.
COMPANY:
Voyager Group, Inc
By: /S/ Xxxxxxx Xxxxxxx
Name: /S/ Xxxxxxx Xxxxxxx
Title: Vice President, Secretary and Director
