Dated april 10, 2007 securities repurchase agreement between CODA OCTOPUS GROUP INC and VISION OPPORTUNITY MASTER FUND
Dated
april 10, 2007
------------
between
CODA
OCTOPUS GROUP INC
and
VISION
OPPORTUNITY MASTER FUND
THIS
AGREEMENT
is dated
April 10, 2007
Parties
|
(1)
|
Coda
Octopus Group, Inc., of 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, incorporated under the laws of the State of Delaware
(“Company”
or “Coda”).
|
|
(2)
|
Vision
Opportunity Master Fund, a Cayman Islands corporation (“Vision
Master Fund”
or the “Shareholder”).
|
Background
|
(A)
|
Vision
Opportunity Master Fund is the registered holder of 20,000 Series
B
Preferred Stock of in the Company.
|
|
(B)
|
The
Parties pursuant to an understanding signed on March 21, 2007 have
agreed
that the interests of the Company and its stockholders are better
served
by the repurchase of the Preferred Stock from Vision Master Fund
in whole
or in part by the Company out of the proceeds of the X. X. Xxxxxxx
raise
(as is defined in Amendment to Securities Purchase Agreements dated
March
21, 2007).
|
|
(C)
|
The
Company’s Certificate of Incorporation permits it to repurchase stock
subject to authorization by the board of directors of the Company
(the
“Board”). The Board approved the entering of the X. X. Xxxxxxx Transaction
(and obligations undertaken pursuant to same). Exhibit 1 sets forth
the
Board Approval.
|
|
(D)
|
It
is proposed that the Company shall repurchase the Preferred Stock
from
Vision Master Fund on the terms of this
Agreement.
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Agreed
terms
|
Interpretation
|
|
1.1
|
Preferred
Stock shall mean 18,181 shares of Series B Convertible Preferred
Stock (the “Series B
Preferred Stock”)
purchased by Vision Master Fund from the Company pursuant to Securities
Purchase Agreement June 2, 2006 and June 21,
2006.
|
1
|
Sale
and purchase of shares
|
|
2.2
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The
Seller warrants that it
has not created any liens, charges or other encumbrances over or
in
respect of the Series B Preferred
Stock.
|
|
Completion
of the sale and purchase of the Series B Preferred Stock shall take
place
immediately on execution of this Agreement at the offices of the
Company,
when Vision Master Fund shall deliver the share certificates to the
Company and the Company shall satisfy its obligation to pay the
consideration due in respect of the Series B Preferred Stock by payment
of
the sum of $1,999,910. to the Seller by way of
telegraphic transfer for same day value to Vision Master Fund Account
set
forth immediately below:
|
|
Bank:
|
XX
Xxxxxx Xxxxx
0
Xxxxx Xxxxxxxxx Xxxxx
Xxx
Xxxx XX 00000
|
|
ABA
#:
|
000-000-000
|
|
A/C
Name:
|
Xxxxxxx
Sachs Execution & Clearing, L.P.
|
|
A/C
#:
|
066-005442
For
credit to Xxxxxx Equities Corporation
|
|
A/C
Name:
|
Vision
Opportunity Master Fund
|
|
A/C
#:
|
4WPH-1209
|
|
Further
assurance
|
|
Vision
Master Fund agrees that, on being requested in writing by the Company
to
do so, it shall, at Vision Master Fund’s expense, immediately execute and
sign all such deeds and documents and do all such things as may be
reasonably necessary in order to give effect to the terms of this
agreement.
|
|
3.2.
|
Vision
Master Fund in accordance with Section 7 of the Certificate of
Designations hereby
serve notice of conversion of all remaining Preferred Stock held
by Vision
Master Fund after the repurchase of the Series B Preferred Stock
by the
Company and being 1,819 shares of Preferred Stock into the Company’s
shares of Common Stock and concurrent with the execution of this
Agreement, Vision hereby surrenders all certificates representing
its
Series B Preferred Stock holdings of which 18,181 shall be the subject
of
repurchase by the Company and 1,819 shall be the subject of conversion
into the Company’s Common Stock.
|
2
|
3.3.
|
Following
the execution of this Agreement and satisfaction of the closing
conditions, Vision acknowledges that all rights with respect to the
shares
of Series B Preferred Stock so repurchased and/or converted shall
terminate, except only (i) its rights to receive certificates for
181,900
shares of Common Stock of the Company into which the 1,819 shares
of
Series B Preferred Stock have been converted; and (ii) to exercise
the
rights to which they are entitled as holders of Common Stock to the
extent
that such rights are not affected by the Lock-Up Agreement entered
into
between Vision Master Fund and the Company on March 21, 2007.
|
|
Governing
law and jurisdiction
|
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
|
Entire
agreement
|
|
This
Agreement constitutes the entire and only legally binding agreement
between the Parties relating to its subject matter and no variation
of
this Agreement shall be effective unless made in writing and signed
by or
on behalf of all the parties and expressed to be such a
variation.
|
|
Agreement
survives completion
|
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Counterparts
|
[Remainder
of page intentionally left blank.]
3
IN
WITNESS WHEREOF, the undersigned have executed, or have caused to be executed,
this Securities Repurchase Agreement on the date first written
above.
| CODAOCTOPUS GROUP, INC. | ||
| |
|
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| By: | ||
|
Name:
Xxxxx Xxxx
Title:
President
|
||
| VISION OPPORTUNITY MASTER FUND, Ltd. | ||
| |
|
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| By: | ||
|
Name:
Xxxx Xxxxxxxx
Title:
Portfolio Manager
|
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