UNIT PURCHASE AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
This UNIT
PURCHASE AGREEMENT (the “Agreement”), dated as of
January 11, 2010, is entered into by and between Xxxxx.xxx Group, Inc., a
Delaware corporation (the “Company”) and UBS Americas
Inc., a Delaware corporation (the “Buyer”).
WHEREAS:
A. The
Company and the Buyer are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Section 4(2) of the
Securities Act of 1933, as amended (the “1933 Act”), and Rule 506 of
Regulation D (“Regulation
D”) as promulgated by the United States Securities and Exchange
Commission (the “SEC”)
under the 1933 Act.
B. The
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, Units (as defined below) of securities of
the Company, as more fully described in this Agreement. As used
herein, each “Unit”
shall consist of: (i) 26.67 shares (the “Shares”) of Series A
Participating Preferred Stock (“Series A Preferred Stock”) of
the Company and (ii) the right, within three years of the Closing Date (as
defined in Section 1.1(d)) to purchase 72.00 additional shares of Series A
Preferred Stock at a purchase price of $37.50 per share (the “Ordinary Purchase
Rights”). The Units, the Shares, the Ordinary Purchase Rights
and the Series A Preferred Stock to be issued pursuant to the exercise of the
Ordinary Purchase Rights are referred to herein as the “Securities.”
C. In
connection with the transactions contemplated by this Agreement, the parties
hereto, Fund Holdings LLC (“Holdings”) and certain other
stockholders of the Company are executing and delivering a Stockholders’
Agreement, substantially in the form attached hereto as Exhibit A (the “Stockholders’ Agreement”) and
the Company, Xxxxx.xxx, Inc. and UBS Securities LLC, an affiliate of the Buyer,
are executing and delivering a Licensing and Services Agreement, substantially
in the form attached hereto as Exhibit B (the “Operating
Agreement”).
NOW, THEREFORE, the Company
and the Buyer hereby agree as follows:
1. PURCHASE AND SALE
OF UNITS.
(a) Certificate of
Designation. The Company shall adopt and file with the
Secretary of State of the State of Delaware on or before the Closing (as defined
in Section 1(d)) the Certificate of Designation in the form attached hereto as
Exhibit C (the
“Certificate of
Designation”).
(b) Purchase of
Units. Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 below, the Company shall issue and sell
to the Buyer, and the Buyer agrees to purchase from the Company on the Closing
Date 1,760 Units (the “Closing”). The
Closing
shall occur on the Closing Date at the offices of Xxxxxxx XxXxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(c) Purchase
Price. The purchase price for each Unit to be purchased by the
Buyer at the Closing shall be One Thousand Dollars ($1,000.00) (the “Purchase Price”).
(d) Closing
Date. The date and time of the Closing (the “Closing Date”) shall be 10:00
a.m., New York City Time, on the date hereof (or such other date and time as is
mutually agreed to by the Company and the Buyer).
(e) Form of
Payment. On the Closing Date, (i) the Buyer shall pay the
Purchase Price to the Company for the Units to be issued and sold to the Buyer
at the Closing by wire transfer of immediately available funds in accordance
with the Company’s written wire instructions and (ii) the Company shall
deliver to the Buyer one or more stock certificates, evidencing the number of
Shares to be purchased at the Closing by the Buyer free and clear of any
mortgage, pledge, hypothecation, rights of others, rights of first refusal,
claim, security interest, encumbrance, title, defect, voting trust agreement,
option, lien, taxes, charge or similar restrictions or limitations
(collectively, “Liens”).
(f) Exercise of Ordinary
Purchase Rights. The Ordinary Purchase Rights may be exercised
at any time from the Closing Date until the date which is three years from such
date (the “Ordinary Rights
Exercise Period”). Within the Ordinary Rights Exercise Period,
the Ordinary Purchase Rights may be exercised in whole or in part at the price
per share of $37.50 per share of Series A Preferred Stock (the “Rights Exercise Price”), such
number of shares of Series A Preferred Stock and Rights Exercise Price are
subject to adjustment as set forth in Section 7, payable by certified wire
transfer to an account designated by the Company. Upon delivery of a
Notice of Exercise Form duly executed in the form attached to the Ordinary
Rights Certificate (as defined below) hereto (which Notice of Exercise Form may
be submitted by delivery to the Company), together with payment of the aggregate
Rights Exercise Price for the shares of Series A Preferred Stock purchased, the
Buyer shall be entitled to receive a certificate or certificates for the shares
of Series A Preferred Stock so purchased. The Ordinary Purchase
Rights will be certificated in the form attached hereto as Exhibit E (the “Ordinary Rights
Certificate”). All Ordinary Purchase Rights shall include a
cashless exercise feature.
2. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY. The Company represents and warrants
to the Buyer that:
(a) Organization and
Qualification. Each of the Company and its “Subsidiaries” (which for
purposes of this Agreement means any entity in which the Company, directly or
indirectly, owns at least a majority of the capital stock or other equity or
similar interest) are entities duly organized and validly existing in good
standing under the laws of the jurisdiction in which they are formed, and have
the requisite power and authorization to own their properties and to carry on
their business as now being conducted. Each of the Company and each
of its Subsidiaries is duly qualified as a foreign entity to do business and is
in good standing (or, with respect to the State of Florida, active status) in
every jurisdiction in which its ownership of property or the nature of the
business conducted by it makes such qualification necessary, except to the
extent that the failure to be so qualified or be in good standing would not
reasonably
be expected to have a Material Adverse Effect. As used in this
Agreement, “Material Adverse
Effect” means any material adverse effect on the business, properties,
assets, operations, results of operations, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries, individually or taken as a whole,
or on the transactions contemplated hereby or on the other Transaction Documents
(as defined in Section 2(b)) or by the agreements and instruments to be entered
into in connection herewith or therewith, or on the authority or ability of the
Company to perform its obligations under the Transaction
Documents. Except as set forth on Schedule 2(a), the
Company has no Subsidiaries and there are no other entities in which the
Company, directly or indirectly, owns any of the capital stock or other equity
or similar interests.
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(b) Authorization; Enforcement;
Validity. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement, the
Stockholders’ Agreement, the Operating Agreement, the Certificate of Designation
and each of the other agreements to be entered into by the parties hereto in
connection with the transactions contemplated by this Agreement (collectively,
the “Transaction
Documents”) and to issue the Securities in accordance with the terms
hereof and thereof. The execution and delivery of the Transaction
Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the issuance of
the Units and the Shares and the reservation for issuance and the issuance of
the Series A Preferred Stock issuable upon exercise of the Ordinary Purchase
Rights have been duly authorized by the Company’s Board of Directors and no
further consent or authorization is required by the Company, its Board of
Directors or its stockholders. This Agreement and the other
Transaction Documents have been duly executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies.
(c) Issuance of
Securities. The Securities are duly authorized and, upon
issuance in accordance with the terms hereof, shall be validly issued and free
from all Liens with respect to the issue thereof and the Shares shall be fully
paid and nonassessable with the holders being entitled to all rights accorded to
a holder of Series A Preferred Stock. As of the Closing Date, the
Company shall have duly authorized and reserved for issuance a number of shares
of Series A Preferred Stock which equals the maximum number of shares of Series
A Preferred Stock issuable upon exercise of the Ordinary Purchase
Rights. The Company shall, so long as any of the Ordinary Purchase
Rights are outstanding, take all action necessary to reserve and keep available
out of its authorized and unissued capital stock, solely for the purpose of
effecting the exercise of the Ordinary Purchase Rights, 100% of the number of
shares of Series A Preferred Stock issuable upon exercise of the Ordinary
Purchase Rights. Upon exercise in accordance with the Ordinary
Purchase Rights, the shares of Series A Preferred issued with respect
thereto will be validly issued, fully paid and nonassessable and free from all
Liens with respect to the issue thereof, with the holders being entitled to all
rights accorded to a holder of Series A Preferred Stock. Assuming the
accuracy and completeness of the Buyer’s representations in Section 3, the offer
and issuance by the Company of the Securities is exempt from registration under
the 1933 Act.
(d) No
Conflicts. Except as set forth in Schedule 2(d), the
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby and
thereby will not (i) result in a violation of the Company’s Certificate of
Incorporation, as amended and as in effect on the date hereof (the “Certificate of
Incorporation”), or the Company’s Bylaws, as amended and as in effect on
the date hereof (the “Bylaws”), any memorandum of
association, certificate of incorporation, articles of association, bylaws,
certificate of formation, any certificate of designation or other constituent
documents of the Company or any of its Subsidiaries, or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any material agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or (iii)
result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and the rules and
regulations of any Self-Regulatory Organization (as defined below)) applicable
to the Company or any of its Subsidiaries or by which any property or asset of
the Company or any of its Subsidiaries is bound or affected. For
purposes of this Agreement, “Self-Regulatory Organization”
means the Financial Industry Regulatory Authority, Inc. (together with any
successor entity, “FINRA”) and any other
commission, board, agency or body that is not a Governmental Authority (as
defined in Section 2(x)(i)) but is charged with the supervision or regulation of
the brokers and dealers that are its members.
(e) Consents. Other
than the filing of the Certificate of Designation and as set forth on Schedule 2(e), the
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any Governmental Authority or
Self-Regulatory Organization or any other Person (as defined in Section 2(p)) in
order for it to execute, deliver or perform any of its obligations under or
contemplated by the Transaction Documents, in each case in accordance with the
terms hereof or thereof, except for the filing of a Form D after the Closing,
which will be timely filed. All consents, authorizations, orders,
filings and registrations which the Company is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the Closing
Date, except for the filing of a Form D after the Closing, which will be timely
filed. The Company and its Subsidiaries are unaware of any facts or
circumstances that might prevent the Company from obtaining or effecting any of
the registration, application or filings pursuant to the preceding
sentence. The Company is not in violation of the rules, regulations
or requirements that permit trading of the common stock, par value $.0001 per
share of the Company (the “Common Stock”) on the OTC
Bulletin Board (“OTCBB”)
operated by FINRA that would reasonably lead to the suspension of the trading of
the Common Stock on the OTCBB in the foreseeable future.
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(f) No General Solicitation;
Placement Agent’s Fees. Neither the Company, nor any of its
Subsidiaries or affiliates, nor any Person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of the
Securities. The Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, or brokers’ commissions (other
than for persons engaged by the Buyer or its investment advisor) relating to or
arising out of the transactions contemplated hereby. The Company
shall pay, and hold the Buyer harmless against, any liability, loss or expense
(including, without limitation, attorney’s fees and out-of-pocket expenses)
arising in connection with any such claim. Except as set forth in
Schedule 2(f),
neither the Company nor any of its Subsidiaries has engaged any placement agent
or other agent in connection with the sale of the Securities.
(g) No Integrated
Offering. None of the Company, its Subsidiaries, any of their
affiliates, and any Person acting on their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of any of the
Securities under the 1933 Act, whether through integration with prior offerings
or otherwise, or cause this offering of the Securities to require approval of
stockholders of the Company for purposes of the 1933 Act or any applicable
stockholder approval provisions, including, without limitation, under the rules,
regulations or requirements that permit trading of the Common Stock on the OTCBB
that would reasonably lead to the suspension of the trading of the Common Stock
on the OTCBB. None of the Company, its Subsidiaries, their affiliates
and any Person acting on its or their behalf will take any action or steps
referred to in the preceding sentence that would require registration of any of
the Securities under the 1933 Act or cause the offering of the Securities to be
integrated with other offerings for purposes of any such applicable stockholder
approval provisions.
(h) SEC Documents; Financial
Statements. Except as set forth in Schedule 2(h), during
the two (2) years prior to the date hereof, the Company has timely (including
within any additional time periods provided by Rule 12b-25 under the 34 Act (as
defined below)) filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (all of the
foregoing filed prior to the date hereof or prior to the Closing Date, and all
exhibits included therein and financial statements, notes and schedules thereto
and documents incorporated by reference therein being hereinafter referred to as
the “SEC
Documents”). The Company has delivered to the Buyer or its
respective representatives true, correct and complete copies of the SEC
Documents not available on the XXXXX system. Except as set forth in
Schedule 2(h),
as of their respective filing dates, the SEC Documents complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the SEC promulgated thereunder applicable to the SEC Documents. As of their
respective filing dates,
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Except as set forth in Schedule 2(h), as of
their respective filing dates, the financial statements of the Company included
in the SEC Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
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(i) Absence of Certain
Changes. Except as set forth in the SEC Documents, since
December 31, 2008, there has been no material adverse change and no material
adverse development in the business, properties, operations, condition
(financial or otherwise), results of operations or prospects of the Company or
its Subsidiaries. Except as disclosed in Schedule 2(i), since
December 31, 2008, neither the Company nor any of its Subsidiaries has (i)
declared or paid any dividends, (ii) sold any assets, individually or in the
aggregate, in excess of $100,000 outside of the ordinary course of business or
(iii) had capital expenditures, individually or in the aggregate, in excess of
$100,000. Neither the Company nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any bankruptcy law nor does the Company
have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy proceedings against the Company or any of its
Subsidiaries or any actual knowledge of any fact which would reasonably lead a
creditor to do so. On the Closing Date, the Company and its
Subsidiaries, individually and on a consolidated basis, after giving effect to
the transactions contemplated hereby to occur at the Closing will not be,
Insolvent (as defined below). For purposes of this Section 2(i),
“Insolvent” means, with
respect to the Company or any of it Subsidiaries (i) the present fair saleable
value of such entity’s assets is less than the amount required to pay such
entity’s total Indebtedness (as defined in Section 2(p)), (ii) such entity is
unable to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured, (iii) such entity
intends to incur or believes that it will incur debts that would be beyond its
ability to pay as such debts mature or (iv) such entity has unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted.
(j) No Undisclosed Events,
Liabilities, Developments or Circumstances. No event,
liability, development or circumstance has occurred or exists with respect to
the Company or its Subsidiaries or their respective business, properties,
prospects, operations or financial condition, that would be required to be
disclosed by the Company under applicable securities laws on a registration
statement on Form S-1 filed with the SEC relating to an issuance and sale by the
Company of its shares of Common Stock and which has not been publicly announced
or disclosed to the Buyer.
(k) Conduct of Business;
Regulatory Permits. Neither the Company nor any of its
Subsidiaries is in violation of any term of or in default under any certificate
of designation of any outstanding series of preferred stock of the Company,
their respective certificates of incorporation, bylaws or equivalent
documents. Neither the Company nor any of its Subsidiaries is in
violation of any judgment, decree or order or any statute, ordinance, rule or
regulation applicable to the Company or any of its Subsidiaries, and neither the
Company nor any of its Subsidiaries will conduct its business in violation of
any of the foregoing, except for possible violations which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Without limiting the generality of the foregoing, the
Company is not in violation of any of the rules, regulations or requirements
that permit trading of the Common Stock on the OTCBB that would reasonably lead
to the suspension of the trading of the Common Stock on the OTCBB in the
foreseeable future. The Company and its Subsidiaries possess all
certificates, approvals, authorizations and permits required by the appropriate
Governmental Authorities or Self-Regulatory Organizations necessary to conduct
their respective businesses, except where the failure to possess such
certificates, authorizations or permits would not have, individually or in the
aggregate, a Material Adverse Effect, and neither the Company nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, approval, authorization or
permit.
(l)
Foreign Corrupt
Practices. Neither the Company, nor any of its Subsidiaries,
nor any director, officer, agent, employee or other Person acting on behalf of
the Company or any of its Subsidiaries has, in the course of its actions for, or
on behalf of, the Company or any of its Subsidiaries (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
(m) Xxxxxxxx-Xxxxx
Act. Except as set forth on Schedule 2(m) or in
the SEC Documents, the Company is in compliance with any and all applicable
requirements of the Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the date
hereof, and any and all applicable rules and regulations promulgated by the SEC
thereunder that are effective as of the date hereof.
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(n) Transactions With
Affiliates. Except as set forth on Schedule 2(n) or in
the SEC Documents, none of the officers, directors or employees of the Company
or any of its Subsidiaries is presently a party to any transaction with the
Company or any of its Subsidiaries (other than for ordinary course services as
employees, officers or directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such officer, director or employee or, to the knowledge of the
Company, any corporation, partnership, trust or other entity in which any such
officer, director, or employee has a substantial interest or is an officer,
director, trustee or partner.
(o) Equity
Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of (x) 150,000,000 shares of Common Stock,
74,727,257 shares of which, as of the date hereof, are issued and outstanding
and 67,050,513 shares of which are reserved for issuance pursuant to the
Company’s employee incentive plan and other options and warrants outstanding
(which amount does not consider warrants for 60,634,295 shares of Common Stock
which are restricted until the Charter Amendment (defined below) has been filed)
and (y) 1,000,000 shares of preferred stock, par value $.0001 per share, 200,000
of which have been designed Series A Preferred Stock and none of which are
issued and outstanding. All of such outstanding shares have been, or
upon issuance will be, validly issued and are fully paid and
nonassessable. The rights, privileges and preferences of the Series A
Preferred Stock are as stated in the Certificate of Designation and as provided
by the Delaware General Corporation Law. Except as set forth on Schedule 2(o): (i) no
shares of the Company’s capital stock are subject to preemptive rights or any
other similar rights or any Liens suffered or permitted by the Company; (ii)
there are no outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares of capital
stock of the Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
shares of capital stock of the Company or any of its Subsidiaries; (iii) there
are no outstanding debt securities, notes, credit agreements, credit facilities
or other agreements, documents or instruments evidencing Indebtedness of the
Company or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound; (iv) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is obligated to
register the sale of any of its securities under the 1933 Act; (v) there are no
outstanding securities or instruments of the Company or any of its Subsidiaries
which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries; (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the
issuance of the Securities; (vii) the Company does not have any stock
appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement; and (viii) the Company and its Subsidiaries have no liabilities or
obligations required to be disclosed in the SEC Documents but not so disclosed
in the SEC Documents. The Company has furnished or made available to
the Buyer upon the Buyer’s request, true, correct and complete copies of the
Certificate of Incorporation and the Bylaws.
(p) Indebtedness and Other
Contracts. Except as disclosed in Schedule 2(p) or in
the SEC Documents, neither the Company nor any of its Subsidiaries (i) has any
outstanding Indebtedness (as defined below), (ii) is a party to any contract,
agreement or instrument, the violation of which, or default under which, by the
other party(ies) to such contract, agreement or instrument would reasonably be
expected to result in a Material Adverse Effect, or (iii) is in violation of any
term of or in default under any contract, agreement or instrument relating to
any Indebtedness, except where such violations and defaults would not result,
individually or in the aggregate, in a Material Adverse Effect, or (iv) is a
party to any contract, agreement or instrument relating to any Indebtedness, the
performance of which, in the judgment of the Company’s officers, has or is
expected to have a Material Adverse Effect. For purposes of this
Agreement: (x) “Indebtedness” of any Person
means, without duplication (A) all indebtedness for borrowed money, (B) all
obligations issued, undertaken or assumed as the deferred purchase price of
property or services, including, without limitation, “capital leases” in
accordance with United States generally accepted accounting principles (other
than trade payables entered into in the ordinary course of business), (C) all
reimbursement or payment obligations with respect to letters of credit, surety
bonds and other similar instruments, (D) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property), (F) all
monetary
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obligations
under any leasing or similar arrangement which, in connection with generally
accepted accounting principles, consistently applied for the periods covered
thereby, is classified as a capital lease, (G) all indebtedness referred to in
clauses (A) through (F) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any mortgage, lien, pledge, charge, security interest or other encumbrance upon
or in any property or assets (including accounts and contract rights) owned by
any Person, even though the Person which owns such assets or property has not
assumed or become liable for the payment of such indebtedness, and (H) all
Contingent Obligations in respect of indebtedness or obligations of others of
the kinds referred to in clauses (A) through (G) above; (y) “Contingent Obligation” means,
as to any Person, any direct or indirect liability, contingent or otherwise, of
that Person with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person
incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part) against loss
with respect thereto; and (z) “Person” means an individual, a
limited liability company, a partnership, a limited partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
(q) Absence of
Litigation. Except as set forth in the SEC Documents or on
Schedule 2(q),
there is no action, suit, proceeding, inquiry or investigation before or by any
Governmental Authority or Self-Regulatory Organization pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries, the Series A Preferred Stock, the Common Stock or any of the
Company’s or the Company’s Subsidiaries’ officers or directors, whether of a
civil or criminal nature or otherwise, that, if adversely determined, would,
either individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(r)
Employee
Relations. Neither the Company nor any of its Subsidiaries is
a party to any collective bargaining agreement or employs any member of a
union. Except as set forth on Schedule 2(r), the
Company and its Subsidiaries believe that their relations with their employees
are good. No executive officer (as defined in Rule 501(f) of the 0000
Xxx) of the Company or any of its Subsidiaries has notified the Company or any
such Subsidiary that such officer intends to leave the Company or any such
Subsidiary or otherwise terminate such officer’s employment with the Company or
any such Subsidiary. No executive officer of the Company or any of
its Subsidiaries, to the knowledge of the Company or any of its Subsidiaries,
is, or is now expected to be, in violation of any material term of any
employment contract, confidentiality, disclosure or proprietary information
agreement, non-competition agreement, or any other contract or agreement or any
restrictive covenant, and the continued employment of each such executive
officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its
Subsidiaries are in compliance with all federal, state, local and foreign laws
and regulations respecting labor, employment and employment practices and
benefits, terms and conditions of employment and wages and hours, except where
failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(s) Title. Except
as set forth on Schedule 2(s), the
Company and its Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its Subsidiaries, in
each case free and clear of all Liens except such as do not materially affect
the value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and any of its
Subsidiaries. Any real property and facilities held under lease by
the Company and any of its Subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries.
(t)
Intellectual Property
Rights. Except as set forth on Schedule 2(t), the
Company and its Subsidiaries own, control or license adequate valid
and enforceable rights or licenses
to use all trademarks, trade names, service marks, service xxxx registrations,
service names, software, documentation, original works of authorship, patents,
patent rights, copyrights, inventions, improvements, licenses, approvals,
governmental authorizations, trade secrets and other intellectual property
rights and all applications and registrations therefor (“Intellectual Property Rights”)
necessary or appropriate to conduct their respective businesses as now conducted
or as proposed to be conducted after the Closing Date. None of the
Company’s Intellectual Property Rights has expired or terminated or has been
abandoned, or is expected to expire or terminate or are expected to be abandoned
within three years from the Closing Date. The Company does not have
any knowledge of any infringement by the Company or its Subsidiaries of
Intellectual Property Rights of others. There is no claim, action or
proceeding being made or brought, or to the knowledge of the Company or any of
its Subsidiaries, being threatened, against the Company or any of its
Subsidiaries regarding its Intellectual Property Rights. Except as
set forth on Schedule
2(t), neither the Company nor any of its Subsidiaries is aware of any
facts or circumstances which might give rise to any of the foregoing
infringements or claims, actions or proceedings. The Company and its
Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their Intellectual Property
Rights.
7
(u) Tax
Status. Except as set forth on Schedule 2(u), the
Company and each of its Subsidiaries (i) has made or filed all foreign, U.S.
federal, state and local income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, (ii) has paid
all taxes and other governmental assessments and charges that are material in
amount, whether or not, shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and (iii) has set
aside on its books provision reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no material Liens with respect to taxes
upon the assets or properties of either the Company or its Subsidiaries, other
than with respect to taxes not yet due and payable. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
(v) Internal Accounting and
Disclosure Controls. Except as set forth in the SEC Documents,
the Company and each of its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset and liability
accountability, (iii) access to assets or incurrence of liabilities is permitted
only in accordance with management’s general or specific authorization and (iv)
the recorded accountability for assets and liabilities is compared with the
existing assets and liabilities at reasonable intervals and appropriate action
is taken with respect to any difference. Except as set forth in the
SEC Documents, the Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the 0000 Xxx) that are effective in
ensuring that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the
SEC, including, without limitation, controls and procedures designed to ensure
that information required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is accumulated and communicated to the
Company’s management, including its principal executive officer or officers and
its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure.
(w) Transfer
Taxes. On the Closing Date, all stock transfer or other taxes
(other than income or similar taxes) which are required to be paid in connection
with the sale and transfer of the Securities to be sold to the Buyer hereunder
will be, or will have been, fully paid or provided for by the Company, and all
laws imposing such taxes will be or will have been complied with.
(x) Broker Dealer
Entities.
(i) The
Company and each Subsidiary of the Company (the “Broker Dealer Entities”) that
is required to be registered as a broker or a dealer with the SEC, the
securities commission or similar authority of any domestic or foreign
governmental or regulatory authority, department, board, instrumentality,
agency, court, tribunal arbitrator, commission or other entity (each a “Governmental Authority”) is
duly registered as such (and is listed on Schedule 2(x)(i) with
its respective jurisdictions of registration and Self-Regulatory Organization
memberships), and such registrations are in full force and effect, and each
Broker Dealer Entity is a member in good standing with all applicable
Self-Regulatory Organizations, and each Broker Dealer Entity’s Uniform
Application for Broker Dealer Registration on Form BD, as amended as of the date
hereof, and each of its other registrations, forms and other reports filed with
any Governmental Authority or Self-Regulatory Organization in connection with
its activities
8
as a
broker or a dealer and is in compliance in all material respects with the
applicable requirements of the 1934 Act and other applicable law and rules and
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and no Broker Dealer Entity has exceeded in any material way with
respect to its business, the business activities enumerated in any
Self-Regulatory Organization membership agreements or other limitations imposed
in connection with its registrations, forms (including Form BDs) and other
reports filed with any Governmental Authority or Self-Regulatory
Organization.
(ii) Since
October 4, 2007, none of the Broker Dealer Entities or any of their respective
“associated persons of a broker or dealer” (as defined in the 0000 Xxx) has
been, or currently is, ineligible or disqualified pursuant to Section 15,
Section 15B or Section 15C of the 1934 Act to serve as a broker or dealer or as
an “associated person of a broker or dealer” (as defined in the 1934 Act), nor
is there any legal, administrative, arbitral, or other proceedings, suits,
actions, claims, investigations, complaints or hearings by or before a
Governmental Authority or Self-Regulatory Organization pending, or threatened in
writing, by any Governmental Authority or Self-Regulatory Organization, which
would reasonably be expected to become the basis for any such ineligibility or
disqualification, nor is there any reasonable basis for a proceeding or
investigation, whether formal or informal, preliminary or otherwise, that is
reasonably likely to result in any such ineligibility or
disqualification.
(iii) Each
of the Broker-Dealer Entities is in compliance in all material respects with
Regulation T of the Board of Governors of the Federal Reserve System and the
margin rules or similar rules of a Self-Regulatory Organization of which such
Broker-Dealer Entity is a member, including the rules governing the extension or
arrangement of credit to customers, and none of the Company or its Subsidiaries
other than the Broker Dealer Entities has or does extend or arrange credit for
any customer within the meaning of Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(iv) Each
of the Broker Dealer Entities is in compliance with all applicable regulatory
net capital requirements and no distribution of cash from a Broker Dealer Entity
between the date hereof and the Closing Date will result in such Broker Dealer
Entity not being in compliance with applicable regulatory net capital
requirements.
(v) To
the Company’s knowledge, no facts or circumstances exist that would (i) cause
any Self-Regulatory Organization or any other Governmental Authority not to
approve the transfer of the Acquired Assets of the Business and the Broker
Dealer Entities under this Agreement; or (ii) cause any Self-Regulatory
Organization or any other Governmental Authority to revoke or restrict the
Broker Dealer Entities’ licenses, permits, approvals, authorizations, consents,
registrations, certificates and orders to operate in any jurisdiction as a
broker or a dealer after the sale of Units contemplated by this
Agreement.
(vi) BondStation
Pro or any iteration thereof or successor system thereto (the “Platform”) is not currently
subject to Regulation ATS under the 0000 Xxx. The Company
has made all necessary filings required under Regulation ATS with respect to the
Platform (including the Form ATS, which was filed on December 16,
2009).
9
(y) Investment Company
Status. The Company is not, and upon consummation of the sale
of the Securities, and for so long as the Buyer holds any Securities, will not
be, an “investment company,” a company controlled by an “investment company” or
an “affiliated person” of, or “promoter” or “principal underwriter” for, an
“investment company” as such terms are defined in the Investment Company Act of
1940, as amended.
(z)
Stock Option
Plans. Each stock option granted by the Company was granted (i) in
accordance with the terms of the applicable Company stock option plan (if any)
and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered granted under
generally accepted accounting principles and applicable law. No stock option
granted under the Company’s stock option plan has been backdated. The
Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise
knowingly coordinate the grant of stock options with, the release or other
public announcement of material information regarding the Company or its
Subsidiaries or their financial results or prospects.
(aa) Disclosure. The
Company understands and confirms that the Buyer will rely on the foregoing
representations in effecting transactions in securities of the
Company. To the Company’s knowledge, all disclosures regarding the
Company, or any of its Subsidiaries, their business and the transactions
contemplated hereby set forth in this Agreement and the other Transaction
Documents, including the Schedules hereto and thereto are true and correct and
do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not
misleading. Each press release issued by the Company or any of its
Subsidiaries during the twelve (12) months preceding the date of this Agreement
did not at the time of release contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Company acknowledges and
agrees that the Buyer makes or has made no representations or warranties with
respect to the transactions contemplated hereby other than those specifically
set forth in Section 3.
3. BUYER’S REPRESENTATIONS AND
WARRANTIES.
(a) Validity;
Enforcement. The Transaction Documents have been duly and
validly authorized, executed and delivered on behalf of the Buyer and shall
constitute the legal, valid and binding obligations of the Buyer enforceable
against the Buyer in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other
similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
(b) No Public Sale or
Distribution. The Buyer is acquiring the Securities for its
own account and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales registered or
exempted under the 1933 Act and the Buyer
does not have a present arrangement to effect any distribution of Securities to
or through any person or entity; provided, however, that by
making the representations herein, the Buyer does not agree to hold any of the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act. The Buyer
is acquiring the Securities hereunder in the ordinary course of its
business. The Buyer does not presently have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Securities.
10
(c) Accredited Investor
Status. The Buyer is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D.
(d) Reliance on
Exemptions. The Buyer understands that the Securities are
being offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying in part upon the truth and accuracy of, and the
Buyer’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein in order to
determine the availability of such exemptions and the eligibility of the Buyer
to acquire the Securities.
(e)
Information. The
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Securities which have been requested by the
Buyer. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. Neither such inquiries
nor any other due diligence investigations conducted by the Buyer or its
advisors, if any, or its representatives shall modify, amend or affect the
Buyer’s right to rely on the Company’s representations and warranties contained
herein. The Buyer understands that its investment in the Securities
involves a high degree of risk and is able to afford a complete loss of such
investment. The Buyer has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision
with respect to its acquisition of the Securities.
(f)
Transfer or
Resale. The Buyer understands that: (i) the Securities have
not been and are not being registered under the 1933 Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, (B) the Buyer shall have delivered to the
Company an opinion of counsel, in a form reasonably satisfactory to the Company,
to the effect that such Securities to be sold, assigned or transferred may be
sold, assigned or transferred pursuant to an exemption from such registration,
or (C) the Buyer provides the Company with reasonable assurance that such
Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule
144A promulgated under the 1933 Act, as amended, (or a successor rule thereto)
(collectively, “Rule
144”); (ii) any sale of the Securities made in reliance on Rule 144 may
be made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of the Securities under circumstances
in which the seller (or the Person through whom the sale is made), may be deemed
to be an underwriter (as that term is defined in the 0000 Xxx) may require
compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder; and (iii) neither the Company nor any other
Person is under any obligation to register the Securities under the 1933 Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder. Notwithstanding the foregoing, the Securities
may be pledged in connection with a bona fide margin account or other loan or
financing arrangement secured by the Securities and such pledge of Securities
shall not be deemed to be a transfer, sale or assignment of the Securities
hereunder, and if the Buyer effects a pledge of Securities it shall not be
required to provide the Company with any notice thereof or otherwise make any
delivery to the Company pursuant to this Agreement or any other Transaction
Document, including, without limitation, this Section 3(f).
11
(g) General
Solicitation. The Buyer is not purchasing the Securities as a
result of any advertisement, article, notice or other communication regarding
the Securities published in any newspaper, magazine or similar media or
broadcast over television or radio or presented at any seminar or, to the
Buyer’s knowledge, any other general solicitation or general
advertisement.
4. COVENANTS.
(a) Form D and Blue
Sky. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to the
Buyer promptly after such filing. The Company, on or before the
Closing Date, shall take such action as the Company shall reasonably determine
is necessary in order to obtain an exemption for or to qualify the Securities
for sale to the Buyer at the Closing pursuant to this Agreement under applicable
securities or “Blue Sky” laws of the states of the United States (or to obtain
an exemption from such qualification), and shall provide evidence of any such
action so taken to the Buyer on or prior to the Closing Date. The
Company shall make all filings and reports relating to the offer and sale of the
Securities required under applicable securities or “Blue Sky” laws of the states
of the United States following the Closing Date.
(b) Reporting
Status. For so long as the Buyer owns any Securities, the
Company shall timely file all reports required to be filed with the SEC pursuant
to the 1934 Act, and the Company shall not terminate its status as an issuer
required to file reports under the 1934 Act even if the 1934 Act or the rules
and regulations thereunder would otherwise permit such termination.
(c) Use of
Proceeds. The Company will use the proceeds from the sale of
the Securities for general corporate and for working capital purposes and not
for (i) the repayment of any outstanding Indebtedness of the Company or any of
its Subsidiaries or (ii) the redemption or repurchase of any of its or its
Subsidiaries’ equity securities.
(d) Transfer
Restrictions.
12
(i) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other
than pursuant to an effective registration statement or Rule 144, to the Company
or to an affiliate of the Buyer, the Company may require the transferor thereof
to provide to the Company an opinion of counsel selected by the transferor and
reasonably acceptable to the Company, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred Securities under the
1933 Act. As a condition of transfer, any such transferee shall agree
in writing to be bound by the terms of this Agreement.
(ii) The
Buyer agrees to the imprinting, so long as is required by this Section 4(d), of
a legend on any of the Securities in the following form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] HAS
[NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
(e) Removal of Legend.
Certificates evidencing the Securities shall not contain any legend (including
the legend set forth in Section 4(d) hereof): (i) while a registration statement
covering the resale of such security is effective under the 1933 Act, or (ii) if
such Securities are eligible for sale under Rule 144, without the requirement
for the Company to be in compliance with the current public information required
under Rule 144 as to such Securities and without volume or manner-of-sale
restrictions, or (iii) if such legend is not required under applicable
requirements of the 1933 Act (including judicial interpretations and
pronouncements issued by the staff of the SEC). The Company agrees
that at such time as such legend is no longer required under this Section 4(e),
it will, no later than three trading days following the delivery by the Buyer to
the Company or the Company’s transfer agent of a certificate representing the
Securities, as applicable, issued with a restrictive legend along with an acceptable
legal opinion and broker representation letter, deliver or cause to be delivered
to the Buyer a certificate representing such shares that is free from all
restrictive and other legends. The Company may not make any notation
on its records or give instructions to the Company’s transfer agent that enlarge
the restrictions on transfer set forth in this Section.
13
(f) Compliance with 1933
Act. The Buyer agrees that the Buyer will sell any Securities
pursuant to either the registration requirements of the 1933 Act, including any
applicable prospectus delivery requirements, or an exemption therefrom, and that
if Securities are sold pursuant to a registration statement, they will be sold
in compliance with the plan of distribution set forth therein, and acknowledges
that the removal of the restrictive legend from certificates representing
Securities as set forth in Section 4(e) is predicated upon the Company's
reliance upon this understanding.
(g) Public
Announcements. The Company and the Buyer shall consult with
each other before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statement with respect to the
transactions contemplated hereby, and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable law or any applicable stock exchange.
(h) Internal
Controls. The Company has in place a plan to address the
material weaknesses in its internal control over financial reporting and will,
in the six months following the Closing Date, take such steps as are
commercially reasonable to address the material weaknesses in its internal
control over financial reporting identified by the Company’s
accountants.
(i)
Regulation
ATS. The Company agrees that it will and will cause its
Subsidiaries to operate the Platform (as defined below) in compliance with the
requirements of Regulation ATS under the 1934 Act. The Company and
Buyer agree that the UBS Platform (as defined below) will not be launched until
the Company’s Form ATS is effective. For purposes of this Agreement,
“Platform” means
BondStation Pro or any iteration thereof or successor system, and “UBS Platform” means the
version of the Platform to be operated for UBS pursuant to the terms of the
Operating Agreement.
(j)
Related Party
Indebtedness. The Company agrees that it (i) will not pay any
indebtedness owed to officers and directors of the Company until the Company has
at least twelve months cash reserve for working capital and applicable
regulatory capital requirements, as determined in good faith by the Company’s
Board of Directors; provided, however, that the Company shall be permitted to
pay up to $60,000 of accrued interest on its outstanding indebtedness to Xxxx
Xxxxx III and (ii) will not enter into any new indebtedness for borrowed money
with affiliates (as defined in Rule 144) of the Company that is payable by the
Company prior to the Company having at least twelve months cash reserve for
working capital and applicable regulatory capital requirements, as determined in
good faith by the Company’s Board of Directors; provided, however, that the
restriction in the foregoing clause (ii) shall not apply to intercompany loans,
accounts and advances between the Company and its subsidiaries whose financial
statements are consolidated with the Company’s in accordance with
GAAP.
14
(k) Closing
Documents. On or prior to fourteen (14) calendar days after
the Closing Date, the Company agrees to deliver, or cause to be delivered, to
the Buyer and Xxxxxxx XxXxxxxxx LLP a complete closing set of the Transaction
Documents, the Securities and any other document required to be delivered to any
party pursuant to Section 5 or 6 hereof or otherwise.
5. CONDITIONS TO THE COMPANY’S
OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the Units to the Buyer at
the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at any time in its sole
discretion by providing the Buyer with prior written notice
thereof:
(i) The
Buyer shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Company.
(ii) The
Buyer shall have delivered to the Company the Purchase Price for the Units being
purchased by the Buyer at the Closing by wire transfer of immediately available
funds pursuant to the wire instructions provided by the Company.
(iii) The
representations and warranties of the Buyer shall be true and correct in all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which are true and correct
in all respects) as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date which shall be true and correct as of such specified date), and
the Buyer shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Buyer at or prior to the Closing
Date.
6. CONDITIONS TO THE BUYER’S
OBLIGATION TO PURCHASE.
The
obligation of the Buyer hereunder to purchase the Units at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the Buyer’s sole
benefit and may be waived by the Buyer at any time in its sole discretion by
providing the Company with prior written notice thereof:
(i) The
Company shall have filed the Certificate of Designation with the Secretary of
State of Delaware, which shall continue to be in full force and effect as of the
Closing.
(ii) The
Company shall have executed and delivered to the Buyer (i) each of the
Transaction Documents and (ii) one or more certificates representing the shares
of Series A Preferred Stock being purchased by the Buyer at the Closing pursuant
to this Agreement.
15
(iii) The
Buyer shall have received the opinion of Hill Xxxx Xxxxxxxxx, the Company’s
outside counsel (“Company
Counsel”), dated as of the Closing Date, in substantially the form
attached hereto as Exhibit
D.
(iv) UBS
Securities, LLC and its Affiliates shall have obtained from InterDealer
Securities, LLC, InterDealer Information Technologies, LLC and InterDealer IP
Holding LLC (collectively, “Licensor”), in a form
satisfactory to UBS Securities LLC, a valid, enforceable, worldwide, fully paid,
royalty free, non-exclusive, perpetual license under all present and future
intellectual property rights owned or controlled by Licensor to copy, run, use
and allow their clients and customers to use, distribute, transmit, modify,
adapt, prepare derivatives of, maintain, display and perform all current and
future source code and object code versions of the Platform and related
software.
(v) The
Company shall have confirmed that Xxxxx X. Xxxxxxxx, III is, as of the Closing
Date, the chairman of the Company’s Board of Directors.
(vi) The
Company shall sold at least $4,000,000 of units pursuant to that certain Unit
Purchase Agreement, dated as of August 28, 2009, by and between the Company and
Holdings, as amended by letter agreement, dated December 17, 2009, by and
between the Company and Holdings and the letter agreement, dated December 23,
2009, by and between the Company and Holdings (the “Holdings Purchase Agreement”)
(which shall be calculated inclusive all amounts invested by Holdings pursuant
to such agreement prior to the date hereof and all amounts invested directly in
the Company by third parties as contemplated by such letter
agreement).
(vii) The
Company shall have received a consent, in a form reasonably satisfactory to the
Buyer, of MBRO Capital, LLC (“MBRO”) pursuant to the
Commercial Term Loan Agreement, dated March 31, 2009, by and between the Company
and MBRO, to the issuance of the Securities pursuant to this Agreement and any
redemption of the Series A Preferred Stock pursuant to the terms of the
Certificate of Designation.
(viii) The
Company shall have filed its U.S. federal, state and local tax returns for the
year ended December 31, 2008.
(ix) The
Company shall have executed and delivered to Buyer the Ordinary Purchase Rights
Certificate.
(x) The
Board of Directors of the Company shall have approved an amendment (the “Charter Amendment”) to the
Certificate of Incorporation increasing the authorized shares of Common Stock to
300,000,000 and holders of a majority of the outstanding shares of Common Stock
shall have executed a written consent approving the Charter Amendment (provided
that the effectiveness of such consent may be subject to compliance with Rule
14c-2 under the 34 Act and the requirement thereunder that the action authorized
by the consent not be taken until at least twenty (20) calendar days after the
date on which an Information Statement on Schedule 14C regarding the approval of
the Charter Amendment has been distributed to stockholders of the
Company).
16
(xi) The
Company shall have reimbursed the reasonable fees and expenses of Xxxxxxx
XxXxxxxxx LLC as counsel to the Buyer; provided, however, that the
aggregate reimbursement shall not exceed $130,000.
(xii) The
Company and Holdings shall have executed a letter agreement, in substantially
the form attached as Exhibit F
hereto.
(xiii) The
Company shall have delivered to the Buyer a certificate evidencing the
incorporation and good standing of the Company and each of its Subsidiaries in
such entity’s jurisdiction of formation issued by the Secretary of State (or
comparable office) of such jurisdiction as of a date within ten (10) days of the
Closing Date.
(xiv) The
Company shall have delivered to the Buyer a certificate, executed by the
Secretary of the Company and dated as of the Closing Date, as to (i) the
resolutions consistent with Section 2(b) as adopted by the Company’s Board of
Directors in a form reasonably acceptable to the Buyer, (ii) the Certificate of
Incorporation and (iii) the Bylaws, each as in effect at the
Closing.
(xv) The
representations and warranties of the Company shall be true and correct in all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which are true and correct
in all respects) as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date which shall be true and correct as of such specified date) and the
Company shall have performed, satisfied and complied in all respects with the
covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company at or prior to the Closing
Date. The Buyer shall have received a certificate, executed by the
Chief Executive Officer of the Company, dated as of the Closing Date, to the
foregoing effect and as to such other matters as may be reasonably requested by
the Buyer.
(xvi) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Units.
(xvii) Holdings
shall have waived any breaches by the Company under the Holdings Purchase
Agreement known to Holdings as of the date hereof.
(xviii) The
Company shall have delivered to the Buyer such other documents relating to the
transactions contemplated by this Agreement as the Buyer or its counsel may
reasonably request.
7. ADJUSTMENTS TO PURCHASE
PRICE OF AND NUMBER OF SHARES ISSUABLE PURSUANT TO THE
RIGHTS.
17
(a) The
number and kind of securities purchasable upon the exercise of the Ordinary
Purchase Rights and the Rights Exercise Price shall be subject to adjustment
from time to time upon the occurrences and terms set forth herein. In
case the Company shall (i) pay a dividend in shares of its Series A
Preferred Stock or make a distribution in shares of Series A Preferred Stock to
holders of its outstanding Series A Preferred Stock, (ii) subdivide its
outstanding shares of Series A Preferred Stock into a greater number of shares,
(iii) combine its outstanding shares of Series A Preferred Stock into a smaller
number of shares of Series A Preferred Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Series A Preferred Stock, then the
number of shares of Series A Preferred Stock purchasable upon exercise of the
Ordinary Purchase Rights, if any, immediately prior thereto shall be adjusted so
that the Buyer shall be entitled to receive the kind and number of shares of
Series A Preferred Stock or other securities of the Company which it would have
owned or have been entitled to receive had such Ordinary Purchase Rights, if
any, been exercised in advance thereof. Upon each such adjustment of
the kind and number of shares of Series A Preferred Stock or other securities of
the Company which are purchasable pursuant to exercise of the Ordinary Purchase
Rights, if any, the Buyer shall thereafter be entitled to purchase the number of
shares of Series A Preferred Stock or other securities resulting from such
adjustment at a purchase price per share of Series A Preferred Stock or other
security obtained by multiplying the purchase price in effect immediately prior
to such adjustment by the number of shares of Series A Preferred Stock
purchasable pursuant hereto immediately prior to such adjustment and dividing by
the number of shares of Series A Preferred Stock or other securities of the
Company resulting from such adjustment. In the event the Company shall pay a
dividend or make a distribution in cash, securities or other assets to the
holders of Series A Preferred Stock, other than (y) as described in clauses (i)
and (iv) above or (z) regular quarterly or other periodic dividends (any such
non-excluded event being referred to herein as an “Extraordinary Dividend”), then
the Rights Exercise Price shall be decreased by the amount of cash and/or the
fair market value (as determined by the Company Board of Directors, in good
faith) of any securities or other assets paid on each share of Series A
Preferred Stock in respect of such Extraordinary Dividend. An
adjustment made pursuant to this paragraph shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
(b) Prior
to the exercise of the Ordinary Purchase Rights, if any, in the event that
the Company shall, other than in an Excluded Transaction (as defined below) sell
any shares of Common Stock to any person or entity at a price less than $0.375
per share (the “Common Lesser
Price”), the Buyer shall be entitled to purchase the shares of Series A
Preferred Stock underlying the Ordinary Purchase Rights at one hundred (100)
times the Common Lesser Price and if the Company shall sell any shares of Series
A Preferred Stock to any person or entity at a price less than $37.50 per share
(the “Preferred Lesser
Price”), the Buyer shall be entitled to purchase the shares of Series A
Preferred Stock underlying the Ordinary Purchase Rights at the Preferred Lesser
Price. For the purposes hereof, the term “Excluded Transaction” shall
mean: (i) the issuance of options and/or restricted stock to employees and
consultants of the Company and approved by the board of directors of the
Company; and (ii) warrants issued to third parties in strategic transactions and
approved by the board of directors of the Company.
8. TERMINATION. IN
THE EVENT THAT THE CLOSING SHALL NOT HAVE OCCURRED WITH RESPECT TO THE BUYER ON
OR BEFORE FIVE (5) BUSINESS DAYS FROM THE DATE HEREOF DUE TO THE COMPANY’S OR
THE BUYER’S FAILURE TO SATISFY THE CONDITIONS SET FORTH IN SECTIONS 5 AND 6
ABOVE (AND THE NONBREACHING PARTY’S FAILURE TO WAIVE SUCH UNSATISFIED
CONDITION(S)), THE NONBREACHING PARTY SHALL HAVE THE OPTION TO TERMINATE THIS
AGREEMENT WITH RESPECT TO SUCH BREACHING PARTY AT THE CLOSE OF BUSINESS ON SUCH
DATE WITHOUT LIABILITY OF ANY PARTY TO ANY OTHER PARTY.
9. MISCELLANEOUS.
(a) Governing Law; Jurisdiction;
Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under
18
this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(b) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
(c) Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d) Severability. If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
(e) Entire Agreement;
Amendments. This Agreement, the Certificate of Designation and
all other Transaction Documents supersede all other prior oral or written
agreements between the Buyer, the Company, their affiliates and Persons acting
on their behalf with respect to the matters discussed herein, and this
Agreement, the other Transaction Document and the instruments referenced herein
and therein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor the Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No
provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the Buyer and any of their respective
successors or assigns. No provision hereof may be waived other than
by an instrument in writing signed by the party against whom enforcement is
sought.
19
(f) Notices. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with an overnight courier
service prior to such courier’s deadline for next Business Day delivery to the
recipient (all delivery fees and charges prepaid), in each case properly
addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the
Company:
Xxxxx.xxx
Group, Inc.
1500
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxx XX, Chief Executive Officer
with a
copy (for informational purposes only) to:
Hill Xxxx
Xxxxxxxxx
3700 Bank
of America Plaza
100 Xxxx
Xxxxxxx Xxxxxxxxx
Xxxxx,
Xxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxx, Esq.
If to the
Buyer:
UBS
Americas Inc.
670
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Attention: Head
of Traded Products – Legal
with a
copy (for informational purposes only) to:
Xxxxxxx
XxXxxxxxx LLP
390 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
20
or to
such other address, facsimile number and/or email address and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and
assigns. The Company and Buyer shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the Buyer;
provided, that the Buyer may assign some or all of its rights and obligations
hereunder to an affiliate of the Buyer, without the consent of the Company, in
which event such assignee shall be deemed to be the Buyer hereunder with respect
to such assigned rights and obligations; provided that as a condition to any
such assignment the assignee shall agree to be bound by the terms of this
Agreement as the Buyer hereunder and the Buyer shall not be relieved of
liability for the performance of its obligations hereunder.
(h) No Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
(i)
Survival of
Representations and Warranties and Covenants. The
representations and warranties, covenants and agreements of the Company and the
Buyer contained in this Agreement shall survive the Closing. The
Company shall not have any liability pursuant to Section 9(k)(i) unless a claim
is made hereunder prior to the twelve month anniversary of the date of this
Agreement, in which case such representation and warranty and covenant shall
survive as to such claim until such claim has been finally
resolved.
(j)
Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) Indemnification.
21
(i) Subject
to Section 9(i) and the other provisions of this Section 9(k), in consideration
of the Buyer’s execution and delivery of the Transaction Documents and acquiring
the Securities thereunder and in addition to all of the Company’s other
obligations under the Transaction Documents, the Company shall defend,
protect, indemnify and hold harmless the Buyer and each other holder of the
Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing
Persons’ agents or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the “Indemnitees”) from and against
any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees
and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in this Agreement or any other certificate, instrument or document
contemplated hereby (but not any other Transaction Document), (b) any breach of
any covenant, agreement or obligation of the Company contained in this Agreement
or the Stockholders’ Agreement or any other certificate, instrument or document
contemplated hereby or thereby (but not any other Transaction Document), or (c)
any cause of action, suit or claim brought or made against such Indemnitee by a
third party (including for these purposes a derivative action brought on behalf
of the Company) and arising out of or resulting from (i) the execution,
delivery, performance or enforcement of this Agreement or any other certificate,
instrument or document contemplated hereby (but not any other Transaction
Document), (ii) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the issuance of the Securities, or
(iii) the status of the Buyer or holder of the Securities as an investor in the
Company pursuant to the transactions contemplated by this Agreement; provided
that this clause (c) shall not apply if a court of competent jurisdiction has
determined that the cause of action, suit or claim is a result of, relates to,
arises out of the Buyer’s gross negligence, intentional misconduct or
fraud. Notwithstanding anything to the contrary contained in this
Agreement: (i) the maximum aggregate amount of Indemnified Liabilities that may
be recovered from the Company by the Indemnitees pursuant to this Section 9(k)
shall be equal to the Purchase Price; and (ii) the Seller shall not be liable to
the Indemnitees for any claim for indemnification pursuant to this Section 9(k)
unless and until the aggregate amount of Indemnified Liabilities that may be
recovered from the Seller equals or exceeds $100,000 (the “Basket Amount”), in which case
the Seller shall be liable only for the Indemnified Liabilities pursuant to this
Section 9(k) in excess of the Basket Amount. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of
the Indemnified Liabilities which is permissible under applicable
law.
(ii) The
Basket Amount, maximum liability and any Indemnified Liabilities pursuant to
this Section 9(k) shall be calculated net of (A) payments actually recovered by
an Indemnitee under any insurance policy with respect to such Indemnified
Liabilities (net of collection costs, increases in premiums and retro-premiums)
and (B) any actual recovery by the Indemnitee from any other Person with respect
to such Indemnified Liabilities (net of collection costs); provided; however,
that no Indemnitee shall have any obligation to mitigate its losses with respect
to any Indemnified Liability.
22
(iii) In
the event the conclusion, settlement or determination of any action, suit,
proceeding, arbitration or dispute between the Company and Xxxxxx-Xxxxxxxx, Inc.
related to the matters described on Schedule 2(t) results
in the Company issuing shares of capital stock to Xxxxxx-Xxxxxxxx, Inc. or any
of its Affiliates, the Company shall issue (and take such steps as are necessary
in order to issue) to Buyer such number of shares of capital stock and rights to
acquire shares of capital stock of the same type and with the same terms as are
then held by Buyer so that Buyer’s fully-diluted ownership percentage as of the
time immediately prior to the issuance to Xxxxxx Xxxxxxxx, Inc. (the “Measure
Time”) is not decreased by such issuance; provided that the relative
amount of shares of capital stock and rights to acquire shares of capital stock
that are issued to Buyer as a result of the foregoing will be in the same
relative amounts as each class or series of capital stock and each right to
purchase shares of capital stock held by Buyer as of the Measure
Time. For avoidance of doubt, (A) if Buyer does not own either shares
of capital stock or rights to purchase shares of capital stock as of the Measure
Time, then none of such securities would be issued pursuant to the foregoing
provision, and (B) if, as of the Measure Time, Buyer holds rights to purchase
capital stock with different terms, then each such right shall be considered a
different right to purchase capital stock and the rights to be issued pursuant
to this provision shall be issued in the same relative amounts as such rights
held by Buyer as of the Measure Time. Notwithstanding the foregoing,
in no event will shares of capital stock or rights to purchase shares of capital
stock be issued to Buyer pursuant to the foregoing provisions to the extent any
dilution to Buyer is eliminated through other anti-dilution protection rights
(including any reduction of the exercise price of any rights to purchase capital
stock).
(l)
No Strict
Construction; Definition of Business Day. The language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied
against any party. As used herein, the term “Business Day” shall mean any
day other than (a) a Saturday or Sunday and (b) any day on which banks are
required or permitted to be closed in New York, New York.
(m) Definition of
Knowledge. “Knowledge,” including the phrase
“to the Company’s
knowledge,” shall mean the knowledge
after reasonable investigation of the officers and senior employees of the
Company.
(n) Remedies. The
Buyer and each holder of the Securities shall have all rights and remedies set
forth in the Transaction Documents and all rights and remedies which such
holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any law. Any Person
having any rights under any provision of this Agreement shall be entitled to
enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. Furthermore, the Company
recognizes that in the event that it fails to perform, observe, or discharge any
or all of its obligations under the Transaction Documents, any remedy at law may
prove to be inadequate relief to the Buyer. The Company therefore
agrees that the Buyer shall be entitled to seek temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages and without posting a bond or other security.
[Signature
Page Follows]
23
IN WITNESS WHEREOF, the Buyer
and the Company have caused this Unit Purchase Agreement to be duly executed as
of the date first written above.
|
COMPANY:
|
|||
|
XXXXX.XXX
GROUP, INC.
|
|||
|
By:
|
/s/ Xxxx X. Xxxxx XX | ||
|
Name:
|
Xxxx X. Xxxxx XX | ||
|
Title:
|
Chief Executive Officer | ||
|
BUYER:
|
|||
|
UBS
AMERICAS INC.
|
|||
|
By:
|
/s/ Xxxxxxx Wind | ||
|
Name:
|
Xxxxxxx Wind | ||
|
Title:
|
Managing Director | ||
|
By:
|
/s/ Xxxx Xxxxx | ||
|
Name:
|
Xxxx Xxxxx | ||
|
Title:
|
Managing Director Strategy & Business Development |
24
Exhibit
A
Form of
Stockholders’ Agreement
Exhibit
B
Form of
Licensing and Services Agreement
Exhibit
C
Form of
Certificate of Designation
Exhibit
D
Form of
Opinion of Company Counsel
Exhibit
E
Form of
Ordinary Purchase Rights Certificate
Exhibit
F
Letter
Agreement
