INVESTMENT AGREEMENT
THIS
INVESTMENT AGREEMENT
(the
“Agreement”)
is
dated as of September 8, 2006, by and between the
Investors listed on the signature pages hereto
(the
“Buyers”),
and
ADVANCED
COMMUNICATIONS TECHNOLOGIES, INC.,
a
Florida corporation (the “Company”).
Recitals:
The
parties have reached an agreement pursuant to which the Buyers shall make an
investment in the Company, and the Company shall issue and sell to the Buyers
shares of Series A-1 Convertible Preferred Stock, par value $0.01 per share
(the
“Series
A-1 Preferred Stock”),
all
in accordance with the terms hereof.
Agreement:
NOW,
THEREFORE,
in
consideration of the mutual premises herein set forth and certain other good
and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. ISSUANCE
OF SHARES AND RELATED TRANSACTIONS.
1.1. Issuance
of Shares.
At
Closing (as defined below), subject to the terms, restrictions and conditions
of
this Agreement, the Buyers shall acquire, and the Company shall sell, issue
and
deliver to each Buyer, the number shares of Series A-1 Preferred Stock set
forth
on the signature pages to this Agreement (the “Buyers’
Stock”),
which
shall have the right and designations set forth on Exhibit
“A”
hereto.
All Buyers’ Stock and the Common Stock into which such Buyers’ Stock is
convertible shall be free and clear of all liens, claims, pledges, mortgages,
restrictions, obligations, security interests and encumbrances of any kind,
nature and description (collectively, “Encumbrances”).
1.2. Purchase
Price.
The
purchase price (the “Purchase
Price”)
for
the Buyer’s Stock shall be equal to $1,000 per share, which shall be paid to the
Company in immediately available funds on the Closing Date (as set forth in
Section
1.3
hereof.
1.3. Closing.
The
parties to this Agreement shall consummate the transactions contemplated by
this
Agreement at one or more closings (each a “Closing”)
to be
held on a date specified by the Company no later than September 13, 2006;
provided, in no event shall the Closing occur prior to the satisfaction of
the
conditions precedent set forth in Sections
6, 7 and 8
hereof.
The date of each Closing is referred to herein as the “Closing
Date.”
The
Closing shall take place at the offices of the Company, or at such other place
as may be mutually agreed upon by the Buyer and the Company. At the Closing,
the
Company shall deliver to the Buyers certificates representing the Buyers’
Stock.
2. ADDITIONAL
AGREEMENTS.
2.1. Agreement
to Register the Common Stock.
The
Company shall notify all holders of the Buyers’ Stock at least 30 days prior to
the filing of any registration statement under the Securities Act of 1933 for
a
public offering of the Common Stock of the Company (including, but not limited
to, registration statements relating to secondary offerings of securities of
the
Company, but excluding registration statements relating to employee benefit
plans or corporate reorganizations or other transactions under Rule 145 of
the
Securities Act) and will afford each such holder an opportunity to include
in
such registration statement all or part of the shares of common stock issued
or
issuable upon conversion of the Buyers’ Stock (“Registrable
Securities”)
held
by such holder. Each holder desiring to include Registrable Securities in any
such registration statement shall notify the Company within 15 days after the
notice from the Company. Such notice shall state the intended method of
disposition of the Registrable Securities by such Holder. If a Holder decides
not to include all of its Registrable Securities in any registration statement
filed by the Company, such Holder shall nevertheless continue to have the right
to include any Registrable Securities in any subsequent registration statement
or registration statements as may be filed by the Company, all upon the terms
and conditions set forth herein. If the registration statement under which
the
Company gives notice under this Section is for an underwritten offering, the
right of any holder to be included in a registration shall be conditioned upon
the holder's participation in the underwriting (including the execution of
underwriting agreements containing customary provisions).. Notwithstanding
any
other provision of this Agreement to the contrary, if the underwriter determines
in good faith that marketing factors require a limitation of the number of
shares to be underwritten, the number of shares that may be included in the
underwriting shall be allocated, first, to the Company and any security holders
exercising demand registration rights; second, to the holders of the Buyers’
stock and any other security holders exercising “piggyback” registration rights,
pro rata based on the total number of shares of common stock entitled to be
included in the registration statement held by each of the holders; and third,
to any stockholder of the Company (other than a holder exercising registration
rights) on a pro rata basis. If a registration statement does not relate to
an
underwritten offering, the holder’s right to participate shall be conditioned on
the holder’s entering into a mutual indemnification agreement with the Company
containing customary terms and executing such other documents, and following
such other procedures, as the Company may reasonably require.
2.2. Access
and Inspection, Etc.
The
Company shall allow the Buyers and their authorized representatives full access
during normal business hours from and after the date hereof and prior to the
Closing Date to all of the properties, books, contracts, commitments and records
of the Company for the purpose of making such investigations as the Buyers
may
reasonably request in connection with the transactions contemplated hereby,
and
shall cause the Company to furnish Buyers such information concerning its
affairs as Buyers may reasonably request. The Company has caused and shall
cause
its personnel to assist the Buyers in making such investigation and shall use
their best efforts to cause the counsel, accountants, engineers and other
non-employee representatives of the Company to be reasonably available to Buyers
for such purposes.
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2.3. Public
Announcements.
The
parties will consult with each other before issuing any press releases or
otherwise making any public statement with respect to this Agreement or any
of
the transactions contemplated hereby and no party will issue any such press
release or make any such public statement without the prior written consent
of
the other parties, except as may be required by law or by the rules and
regulations of any governmental authority or securities exchange.
2.4. Best
Efforts.
Subject
to the terms and conditions provided in this Agreement, each of the parties
shall use its best efforts in good faith to take or cause to be taken as
promptly as practicable all reasonable actions that are within its power to
cause to be fulfilled those conditions precedent to its obligations or the
obligations of the other parties to consummate the transactions contemplated
by
this Agreement that are dependent upon its actions.
2.5. Further
Assurances.
The
parties shall deliver any and all other instruments or documents required to
be
delivered pursuant to, or necessary or proper in order to give effect to, the
provisions of this Agreement, including, without limitation, to issue the
Buyers’ Stock and to consummate the transactions contemplated by this
Agreement.
3. REPRESENTATIONS,
COVENANTS AND WARRANTIES OF THE COMPANY.
To
induce
Buyers to enter into this Agreement and to consummate the transactions
contemplated hereby, the Company represents and warrants to and covenants with
the Buyers as follows:
3.1. Organization;
Compliance.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida. The Company is: (a) entitled to own
or
lease its properties and to carry on its business as and in the places where
such business is now conducted, and (b) duly licensed and qualified in all
jurisdictions where the character of the property owned by it or the nature
of
the business transacted by it makes such license or qualification necessary,
except where the failure to do so would not result in a material adverse effect
on the Company.
3.2. Capitalization
and Related Matters.
(a) The
Company has an authorized capital consisting of 5,000,000,000 shares of Common
Stock and 25,000 shares of Preferred Stock, of which 4,597,302,006 shares of
Common Stock, 3,270 shares of Series A Preferred Stock and 40 shares of Series
B
Preferred Stock are issued and outstanding as of the date hereof. All Common
Stock is duly and validly issued, fully paid and nonassessable. No Common Stock
(i) was issued in violation of the preemptive rights of any shareholder, or
(ii)
is held as treasury stock.
(b) Except
as
set forth in the Company’s Form 10-QSB for the quarter ended March 31, 2006, the
Company’s Form 10-KSB for the year ended June 30, 2005 and any Form 8-K filed
since March 31, 2006 (the “SEC
Documents”),
there
are no outstanding securities convertible into Common Stock or any other capital
stock of the Company nor any rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, such capital stock or securities convertible into such
capital stock (collectively, “Securities
Rights”).
The
Company: (i) is not subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any of its capital stock; or (ii)
has
no liability for dividends or other distributions declared or accrued, but
unpaid, with respect to any capital stock.
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(c) The
Company is not a party to any agreement, understanding or arrangement, direct
or
indirect, relating to any class or series of the Company’s capital stock,
including, without limitation, any voting agreement, restriction on resale,
shareholder agreement or registration rights agreement.
3.3. Subsidiaries
and Investments.
(a) The
SEC
Documents disclose with respect to each Subsidiary (as defined below)
(i) its name, (ii) the jurisdiction of its organization,
(iii) the number of its authorized shares or other equity interests,
(iv) the number of its outstanding shares or other equity interests of each
class or series, and (v) the name of the owner and the number and
percentage of outstanding shares or other equity interests of each class or
series of such Subsidiary owned of record and, if different, owned beneficially
by the Company and any other person. All of the outstanding capital stock and
other equity interests of each of the Subsidiaries is validly issued, fully
paid
and nonassessable and was issued in compliance with all applicable federal
and
state securities or “blue sky” laws and regulations. There are no Securities
Rights relating to any shares of capital stock, other equity interests or other
securities of any of the Subsidiaries. The Company and the Subsidiaries have
good, marketable and exclusive title to the shares or other equity interests
disclosed in the SEC Documents as being owned by each of them, free and clear
of
all Encumbrances. All rights and powers to vote such shares or other equity
interests are held exclusively by the Company, directly or indirectly through
one or more of the Subsidiaries, as the case may be. Each Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws
of its jurisdiction of organization, and has the corporate power and authority
to own or lease its properties and to carry on its business as now conducted.
For the purposes hereof, a “Subsidiary”
means
any corporation, limited liability company, partnership, joint venture or other
entity in which the Company owns, directly or indirectly, more than 20% of
the
outstanding voting securities or equity interests.
(b) Except
as
disclosed in SEC Documents, the Company does not own, nor has it ever owned,
any
equity interest in any corporation, limited liability company, partnership,
joint venture or other entity.
3.4. Execution;
No Inconsistent Agreements; Etc.
(a) This
Agreement is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy or similar laws affecting the enforcement of creditors' rights
generally, and the availability of equitable remedies.
(b) The
execution and delivery of this Agreement by the Company does not, and the
consummation of the transactions contemplated hereby will not, constitute a
breach or violation of the charter or bylaws of the Company, or a default under
any of the terms, conditions or provisions of (or an act or omission that would
give rise to any right of termination, cancellation or acceleration under)
any
note, bond, mortgage, lease, indenture, agreement or obligation to which the
Company is a party, pursuant to which the Company otherwise receives benefits,
or to which any of the properties of the Company is subject.
4
3.5. Corporate
Records.
The
statutory records, including the stock register and minute books of the Company,
fully reflect all issuances, transfers and redemptions of its capital stock,
correctly show and will correctly show the total number of shares of its capital
stock issued and outstanding on the date hereof and on the Closing Date, the
charter or other organizational documents and all amendments thereto, and bylaws
as amended and currently in force.
3.6. Financial
Statements.
(a) The
SEC
Documents contain (i) the consolidated audited balance sheet of the Company
as
of June 30, 2005, and the consolidated audited consolidated profit and loss
statement of the Company for the fiscal year ended June 30, 2005 and (ii) the
consolidated unaudited balance sheet of the Company as of March 31, 2006 and
the
consolidated unaudited profit and loss statement of the Company for the nine
months ended March 31, 2006 (the balance sheet as of March 31, 2006 is
hereinafter referred to as the “2006
Company Balance Sheet”).
All
the foregoing financial statements, and any financial statements delivered
pursuant to subsection (c) below, are referred to herein collectively as the
“Company
Financial Statements.”
(b) The
Company Financial Statements have been and will be prepared in accordance with
U.S. GAAP, applied on a consistent basis (except that the unaudited statements
do not contain all the disclosures required by GAAP), and fairly reflect and
will reflect in all material respects the financial condition of the Company
as
at the dates thereof and the results of the operations of the Company for the
periods then ended.
3.7. Liabilities.
The
Company has no material debt, liability or obligation of any kind, whether
accrued, absolute, contingent or otherwise, except: (a) those reflected on
the
2006 Company Balance Sheet, including the notes thereto,(b) liabilities in
respect of the Company’s settlement with the former officers of Pacific Magtron
International Corp., as disclosed in the Company’s Current report on Form 8-K
dated August 11, 2006, and (c) liabilities incurred in the ordinary course
of
business since March 31, 2006 none of which have or will have a material adverse
effect on the financial condition of the Company.
3.8. Absence
of Changes.
Except
as described in the SEC Documents and in the other Schedules to this Agreement,
from March 31, 2006 to the date of this Agreement:
(a) there
has
not been any adverse change in the business, assets, liabilities, results of
operations or financial condition of the Company or in its relationships with
suppliers, customers, employees, lessors or others other than changes in the
ordinary course of business, none of which, singularly or in the aggregate,
have
had or will have a material adverse effect on the business, properties or
financial condition of the Company; and
5
(b) the
Company has complied with the covenants and restrictions set forth in
Section
5
to the
same extent as if this Agreement had been executed on, and had been in effect
since, March 31, 2006.
3.9. Title
to Properties.
The
Company has good and marketable title to all of its properties and assets,
real
and personal, including, but not limited to, those reflected in the 2006 Company
Balance Sheet (except as since sold or otherwise disposed of in the ordinary
course of business, or as expressly provided for in this Agreement), free and
clear of all Encumbrances of any kind or character except: (a) those securing
liabilities of the Company incurred in the ordinary course (with respect to
which no material default exists); (b) liens of 2005 and 2006 real estate and
personal property taxes; and (c) imperfections of title and Encumbrances, if
any, which, in the aggregate (i) are not substantial in amount; (ii) do not
detract from the value of the property subject thereto or impair the operations
of the Company or; and (iii) do not have a material adverse effect on the
business, properties or assets of the Company.
3.10. Compliance
With Law.
The
business and activities of the Company has at all times been conducted in
accordance with its articles of incorporation and bylaws and any applicable
law,
regulation, ordinance, order, License (defined below), permit, rule, injunction
or other restriction or ruling of any court or administrative or governmental
agency, ministry, or body, except where the failure to do so would not result
in
a material adverse effect on the Company.
3.11. Taxes.
The
Company has duly filed all material federal, state, local and foreign tax
returns and reports, and all returns and reports of all other governmental
units
having jurisdiction with respect to taxes imposed on it or on its income,
properties, sales, franchises, operations or employee benefit plans or trusts,
all such returns were complete and accurate when filed, and all taxes and
assessments payable by the Company have been paid to the extent that such taxes
have become due. All taxes accrued or payable by the Company for all periods
through June 30, 2005 have been accrued or paid in full, whether or not due
and
payable and whether or not disputed. The Company has withheld proper and
accurate amounts from its employees for all periods in full compliance with
the
tax withholding provisions of applicable foreign, federal, state and local
tax
laws. There are no waivers or agreements by the Company for the extension of
time for the assessment of any taxes. The tax returns of the Company have never
been examined by any authority or other administrative body or court of any
state or country. There are not now any examinations of the income tax returns
of the Company pending, or any proposed deficiencies or assessments against
the
Company of additional taxes of any kind. The Company shall duly and timely
prepare and file all material federal, state, local and foreign tax returns
and
reports for 2005, and all returns and reports of all other governmental units
having jurisdiction with respect to taxes imposed on the Company or on its
income, properties, sales, franchises, operations or employee benefit plans
or
trusts, and all such returns will be complete and accurate when filed.
3.12. Real
Properties.
The
Company does not have an interest in any real property, except for the Leases
(as defined below).
6
3.13. Leases
of Real Property.
All
leases pursuant to which the Company is lessee or lessor of any real property
(the “Leases”)
are
listed in the SEC Documents and are valid and enforceable in accordance with
their terms. There is not under any of such leases (a) any material default
or
any claimed material default by the Company or any event of default or event
which with notice or lapse of time, or both, would constitute a material default
by the Company and in respect to which the Company has not taken adequate steps
to prevent a default on its part from occurring, or (b) to the knowledge of
the
Company, any material default by any lessee of the Company or any event of
default or event which with notice or lapse of time, or both, would constitute
a
material default by any lessee. The copies of the Leases heretofore furnished
to
Buyer are true, correct and complete, and such Leases have not been modified
in
any respect since the date they were so furnished, and are in full force and
effect in accordance with their terms. The Company is lawfully in possession
of
all real properties of which they are a lessee (the “Leased
Properties”).
3.14. Contingencies.
Except
as disclosed in the SEC Documents, there are no actions, suits, claims or
proceedings pending, or to the knowledge of the Company threatened against,
by
or affecting, the Company in any court or before any arbitrator or governmental
agency that may have a material adverse effect on the Company or which could
materially and adversely affect the right or ability of the Company to
consummate the transactions contemplated hereby. To the knowledge of the
Company, there is no valid basis upon which any such action, suit, claim, or
proceeding may be commenced or asserted against it. There are no unsatisfied
judgments against the Company and no consent decrees or similar agreements
to
which the Company is subject and which could have a material adverse effect
on
the Company.
3.15. Products
Liability; Warranties; Insurance.
The
Company will have not loss, damage, liability, fine, penalty, cost and expense
(each, a “Liability”)
that
is not fully covered by insurance relating to any product manufactured,
distributed or sold by the Company prior to the Closing, whether or not such
Liability is related to products that are defective or improperly designed
or
manufactured or are in breach of any express or implied product warranty.
7
3.16. Intellectual
Property Rights.
(a) The
Company owns and possesses all right, title and interest in and to, or has
a
valid license to use, all of the Proprietary Rights (as defined below) necessary
for the operation of its business as presently conducted and none of such
Proprietary Rights have been abandoned;
(b) no
claim
by any third party contesting the validity, enforceability, use or ownership
of
any such Proprietary Rights has been made, is currently outstanding or, to
the
knowledge of the Company, is threatened, and to the knowledge of the Company
there is no reasonable basis for any such claim;
(c) neither
the Company nor any registered agent of any of the foregoing has received any
notice of, nor is the Company aware of any reasonable basis for an allegation
of, any infringement or misappropriation by, or conflict with, any third party
with respect to such Proprietary Rights, nor has the Company, or any registered
agent of any of them received any claim of infringement or misappropriation
of
or other conflict with any Proprietary Rights of any third party;
(d) the
Company has not infringed, misappropriated or otherwise violated any Proprietary
Rights of any third parties, and the Company is not aware of any infringement,
misappropriation or conflict which will occur as a result of the continued
operation of the Company as presently operated and as contemplated to be
operated or as a result of the consummation of the transactions contemplated
hereby; and
(e) all
employees who have contributed to or participated in the conception and/or
development of all or any part of the Proprietary Rights which are not licensed
to the Company from a third party either (i) have been party to a
"work-for-hire" arrangement or agreement with the Company, in accordance with
applicable federal and state law, that has accorded the Company full, effective,
exclusive, and original ownership of all tangible and intangible property
thereby arising, or (ii) have executed appropriate instruments of assignment
in
favor of the Company as assignee that have conveyed to the Company full,
effective and exclusive ownership of all tangible and intangible property
thereby arising.
(f) As
used
herein, the term “Proprietary
Rights”
means
all proprietary information of the Company, as the case may be, including all
patents, patent applications, patent disclosures and inventions (whether or
not
patentable and whether or not reduced to practice), all trademarks, service
marks, trade dress, trade names, corporate names, domain names, copyrights,
all
trade secrets, confidential information, ideas, formulae, compositions,
know-how, processes and techniques, drawings, specifications, designs, logos,
plans, improvements, proposals, technical and computer data, documentation
and
software, financial, business and marketing plans, and related information
and
all other proprietary, industrial or intellectual property rights relating
to
the business of the Company, including those proprietary, industrial or
intellectual property rights found at the Company’s websites listed in the SEC
Documents.
8
(g) The
consummation of the transactions contemplated by this Agreement will not
adversely affect the right of the Company to continue to use the Proprietary
Rights. To the extent that the registration of any Proprietary Right is required
by law, such Proprietary Right has been duly and validly registered or filed,
and any fees that are necessary to maintain in force any Proprietary Rights
or
registrations thereof have been paid. The SEC Documents sets forth a list and
description of the copyrights, trademarks, service marks, trade dress, trade
names and domain names used or held by the Company and, where appropriate,
the
date, serial or registration number, and place of any registration
thereof.
3.17. Material
Contracts.
Except
as disclosed in the SEC Documents: (a) the Company has performed all material
obligations to be performed by them under all such contracts, and is not in
material default thereof, and (b) no condition exists or has occurred which
with
the giving of notice or the lapse of time, or both, would constitute a material
default by the Company or accelerate the maturity of, or otherwise modify,
any
such contract, and (c) all such contracts are in full force and effect. No
material default by any other party to any of such contracts is known or claimed
by the Company to exist.
3.18. Employee
Benefit Matters.
(a) Except
as
disclosed in the SEC Documents, the Company does not provide, nor is it
obligated to provide, directly or indirectly, any benefits for employees other
than salaries, sales commissions and bonuses, including, but not limited to,
any
pension, profit sharing, stock option, retirement, bonus, hospitalization,
insurance, severance, vacation or other employee benefits (including any housing
or social fund contributions) under any practice, agreement or
understanding.
(b) Each
employee benefit plan maintained by or on behalf of the Company or any other
party (including any terminated pension plans) which covers or covered any
employees or former employees of the Company (collectively, the “Employee
Benefit Plan”)
is
listed in the SEC Documents. The Company has delivered to Buyer true and
complete copies of all such plans and any related documents. With respect to
each such plan: (a) no litigation, administrative or other proceeding or claim
is pending, or to the knowledge of the Company, threatened or anticipated
involving such plan; (b) there are no outstanding requests for information
by
participants or beneficiaries of such plan; and (c) such plan has been
administered in compliance in all material respects with all applicable laws
and
regulations.
(c) The
Company has timely made payment in full of all contributions to all of the
Employee Benefit Plans which the Company was obligated to make prior to the
date
hereof; and there are no contributions declared or payable by the Company to
any
Employee Benefit Plan which, as of the date hereof, has not been paid in
full.
3.19. Possession
of Franchises, Licenses, Etc.
The
Company: (a) possesses all material franchises, certificates, licenses, permits
and other authorizations (collectively, the “Licenses”)
from
governmental authorities, political subdivisions or regulatory authorities
that
are necessary for the ownership, maintenance and operation of its business
in
the manner presently conducted; (b) are not in violation of any provisions
thereof; and (c) have maintained and amended, as necessary, all Licenses and
duly completed all filings and notifications in connection
therewith.
9
3.20. Environmental
Matters.
Except
as disclosed in the SEC Documents: (i) the Company is not in violation, in
any
material respect, of any Environmental Law (as defined below); (ii) the
Company has received all permits and approvals with respect to emissions into
the environment and the proper collection, storage, transport, distribution
or
disposal of Wastes (as defined below) and other materials required for the
operation of its business at present operating levels; and (iii) the Company
is
not liable or responsible for any material clean up, fines, liability or expense
arising under any Environmental Law, as a result of the disposal of Wastes
or
other materials in or on the property of the Company (whether owned or leased),
or in or on any other property, including property no longer owned, leased
or
used by the Company. As used herein, (a) “Environmental
Laws”
means,
collectively, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization
Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act, as amended, the Clean Air Act, as amended, the Clean Water Act,
as
amended, any other “Superfund” or “Superlien” law or any other federal, or
applicable state or local statute, law, ordinance, code, rule, regulation,
order
or decree (foreign or domestic) regulating, relating to, or imposing liability
or standards of conduct concerning, Wastes, or the environment; and (b)
“Wastes”
means
and includes any hazardous, toxic or dangerous waste, liquid, substance or
material (including petroleum products and derivatives), the generation,
handling, storage, disposal, treatment or emission of which is subject to any
Environmental Law.
3.21. Agreements
and Transactions with Related Parties.
Except
as disclosed on the SEC Documents, the Company is not, and since January 1,
2006
has not been, a party to any contract, agreement, lease or transaction with,
or
any other commitment to, (a) a shareholder, (b) any person related by blood,
adoption or marriage to shareholder, (c) any director or officer of the Company,
(d) any corporation or other entity in which any of the foregoing parties has,
directly or indirectly, at least five percent (5.0%) beneficial interest in
the
capital stock or other type of equity interest in such corporation or other
entity, or (e) any partnership in which any such party is a general partner
or a
limited partner having a five percent (5%) or more interest therein (any or
all
of the foregoing being herein referred to as a “Related
Party”
and
collectively as the “Related
Parties”).
Without limiting the generality of the foregoing, except as set forth in the
SEC
Documents, (a) no Related Party, directly or indirectly, owns or controls any
assets or properties which are or have since January 1, 2006 been used in the
business of the Company, and (b) no Related Party, directly or indirectly,
engages in or has any significant interest in or connection with any business:
(i) which is or which within the last two (2) years has been a competitor,
customer or supplier of, or has done business with, the Company, or
(ii) which as of the date hereof sells or distributes products or provides
services which are similar or related to the products or services of the
Company.
3.22. Business
Practices.
Except
as disclosed in the SEC Documents, the Company has not, at any time, directly
or
indirectly, made any contributions or payment, or provided any compensation
or
benefit of any kind, to any municipal, county, state, federal or foreign
governmental officer or official, or any other person charged with similar
public or quasi-public duties, or any candidate for political office. The
Company’s books, accounts and records (including, without limitation, customer
files, product packaging and invoices) accurately describe and reflect, in
all
material respects, the nature and amount of the Company’s products, purchases,
sales and other transactions. Without limiting the generality of the foregoing,
the Company has not engaged, directly or indirectly, in: (a) the practice known
as “double-invoicing” or the use or issuance of pro-forma or dummy invoices; or
(b) the incorrect or misleading labeling, marketing or sale of refurbished
goods
as new goods.
10
3.23. Shareholder
Matters.
None of
the matters set forth in this Agreement require the approval of the Company’s
shareholders.
3.24. Full
Disclosure.
No
representation or warranty of the Company contained in this Agreement, and
none
of the statements or information concerning the Company contained in this
Agreement and the Schedules, contains or will contain any untrue statement
of a
material fact nor will such representations, warranties, covenants or statements
taken as a whole omit a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
4. REPRESENTATIONS
AND WARRANTIES OF BUYER.
To
induce
the Company to enter into this Agreement and to consummate the transactions
contemplated hereby, each Buyer represents and warrants to and covenants with
the Company as follows:
4.1. Organization.
If
Buyer is a limited liability company, corporation or partnership it is duly
organized, validly existing and in good standing under the laws of its state
of
organization. The Buyer has all requisite power and authority to execute,
deliver and carry out the terms of this Agreement and the consummation of the
transactions contemplated herein.
4.2. Execution;
No Inconsistent Agreements; Etc.
(a) The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly and validly authorized and approved by Buyer
and this Agreement is a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, except as such enforcement may
be
limited by bankruptcy or similar laws affecting the enforcement of creditors'
rights generally, and the availability of equitable remedies.
(b) The
execution and delivery of this Agreement by Buyer does not, and the consummation
of the transactions contemplated hereby will not, constitute a breach or
violation of the charter or bylaws of Buyer, or a default under any of the
terms, conditions or provisions of (or an act or omission that would give rise
to any right of termination, cancellation or acceleration under) any material
note, bond, mortgage, lease, indenture, agreement or obligation to which Buyer
is a party, pursuant to which any of them otherwise receive benefits, or by
which any of their properties may be bound.
11
4.3. Securities
Laws.
(a) The
Buyer
is purchasing the Series A-1 Preferred Stock for investment purposes and not
with a view to the sale or distribution, by public or private sale or other
disposition, and the Buyer has no present intention of selling, granting any
participation in or otherwise distributing or disposing of any of the Series
A-1
Preferred Stock.
(b) Investment
Representations.
The
Buyer has been offered the opportunity to ask questions of, and receive answers
from the Company’s management, and the Buyer has been given full and complete
access to all available information and data relating to the business and assets
of the Company and has obtained such additional information about the Company
as
the Buyer has deemed necessary in order to evaluate the opportunities, both
financial and otherwise, with respect to the Company and, except as set forth
herein, has not relied on any representation, warranty or other statement
concerning the Company and its evaluation of the decision to consummate the
transactions contemplated herein. In its judgment, the Buyer is sufficiently
familiar with the Company to enable the Buyer to proceed with the transactions
contemplated hereby.
(c) The
Buyer
is an “accredited investor,” as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the “Securities
Act”).
(d) If
the
Buyer has executed and delivered to the Company a Purchaser Questionnaire,
the
information contained in such Purchaser Questionnaire is true and complete
in
all material respects.
(e) The
Buyer
is a sophisticated investor familiar with the type of risks inherent in the
acquisition of securities such as the shares of the Company and the Buyer’s
financial position is such that the Buyer can afford to retain its shares of
Company Series A-1 Preferred Stock for an indefinite period of time without
realizing any direct or indirect cash return on its investment.
5. CONDUCT
OF BUSINESS OF THE COMPANY PENDING CLOSING.
The
Company covenants and agrees that between the date hereof and the Closing
Date:
5.1. Business
in the Ordinary Course.
Except
as set forth in the SEC Documents, the business of the Company shall be
conducted only in the ordinary course, and consistent with past practice.
Without limiting the generality of the foregoing, and except as set forth in
the
SEC Documents or as otherwise approved by Buyer:
(a) Except
for the transaction contemplated hereby, the Company shall not enter into any
contract, agreement or other arrangement which would constitute a Material
Contract, except for contracts to sell or supply goods or services to customers
in the ordinary course of business at prices and on terms substantially
consistent with the prior operating practices of the Company;
12
(b) except
for sales of personal property in the ordinary course of its business, the
Company shall not sell, assign, transfer, mortgage, convey, encumber or
otherwise dispose of, or cause the sale, assignment, transfer, mortgage,
conveyance, encumbrance or other disposition of any of the assets or properties
of the Company or any interest therein;
(c) the
Company shall not acquire any material assets, except expenditures made in
the
ordinary course of business as reasonably necessary to enable the Company to
conduct its normal business operations and to maintain its normal inventory
of
goods and materials, at prices and on terms substantially consistent with
current market conditions and prior operating practices;
(d) the
books, records and accounts of the Company shall be maintained in the usual,
regular and ordinary course of business on a basis consistent with prior
practices and in accordance with GAAP;
(e) the
Company shall use its best efforts to preserve its business organization, to
preserve the good will of its suppliers, customers and others having business
relations with the Company, and to retain the services of key employees and
agents of the Company;
(f) except
as
it may terminate in accordance with the terms of this Agreement, the Company
shall keep in full force and effect, and not cause a default of any of its
obligations under, each of their contracts and commitments;
(g) the
Company shall duly comply in all material respects with all laws applicable
to
it and to the conduct of its business;
(h) the
Company shall not create, incur or assume any liability or indebtedness, except
in the ordinary course of business consistent with past practices;
(i) other
than as contemplated in this Agreement, the Company shall not apply any of
its
assets to the direct or indirect payment, discharge, satisfaction or reduction
of any amount payable directly or indirectly to or for the benefit of any
shareholder or any Related Party; and
(j) the
Company shall not take or omit to take any action which would render any of
the
representations or warranties untrue or misleading, or which would be a breach
of any of the covenants.
5.2. No
Material Changes.
Except
as contemplated in this Agreement, the Company shall not materially alter its
organization, capitalization, or financial structure, practices or operations.
Without limiting the generality of the foregoing:
(a) no
change
shall be made in the articles of incorporation and bylaws of the
Company;
13
(b) no
change
shall be made in the authorized or issued capital stock of the
Company;
(c) the
Company shall not issue or grant any right or option to purchase or otherwise
acquire any of its capital stock or other securities;
(d) no
dividend or other distribution or payment shall be declared or made with respect
to any of the capital stock of the Company; and
(e) no
change
shall be made affecting the banking arrangements of the Company.
5.3. Notification.
Each
party to this Agreement shall promptly notify the other parties in writing
of
the occurrence, or threatened occurrence, of any event that would constitute
a
breach or violation of this Agreement by any party or that would cause any
representation or warranty made by the notifying party in this Agreement to
be
false or misleading in any respect. The Company will promptly notify the Buyers
of any event that could have a material adverse effect on the business, assets,
financial condition or prospects of the Company. The Company shall have the
right to update the Schedules to this Agreement immediately prior to Closing;
provided, if such update discloses any breach of a representation, warranty,
covenant or obligation of the Company, the Buyer shall have the right to then
exercise its available rights and remedies hereunder.
6. CONDITIONS
TO OBLIGATIONS OF ALL PARTIES.
The
obligation of Buyers and the Company to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, on or before the Closing,
of
each of the following conditions; any or all of which may be waived in whole
or
in part by the joint agreement of Buyer and the Company:
6.1. Absence
of Actions.
No
action or proceeding shall have been brought or threatened before any court
or
administrative agency to prevent the consummation or to seek damages in a
material amount by reason of the transactions contemplated hereby, and no
governmental authority shall have asserted that the within transactions (or
any
other pending transaction involving Buyer or the Company when considered in
light of the effect of the within transactions) shall constitute a violation
of
law or give rise to material liability on the part of the Company or the
Buyer.
6.2. Consents.
The
parties shall have received from any suppliers, lessors, lenders, lien holders
or governmental authorities, bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, or any part hereof, such consents,
authorizations and approvals as are necessary for the consummation
hereof.
7. CONDITIONS
TO OBLIGATIONS OF THE BUYERS.
All
obligations of the Buyers to consummate the transactions contemplated by this
Agreement are subject to the fulfillment and satisfaction of each and every
of
the following conditions on or prior to the Closing, any or all of which may
be
waived in whole or in part by Buyers:
14
7.1. Representations
and Warranties.
The
representations and warranties contained in Section
3 of
this
Agreement and in any certificate, instrument, schedule, agreement or other
writing delivered by or on behalf of the Company in connection with the
transactions contemplated by this Agreement shall be true, correct and complete
in all material respects (except for representations and warranties which are by
their terms qualified by materiality, which shall be true, correct and complete
in all respects) as of the date when made and shall be deemed to be made again
at and as of the Closing Date and shall be true, correct and complete at and
as
of such time in all material respects (except for representations and warranties
which are by their terms qualified by materiality, which shall be true, correct
and complete in all respects).
7.2. Compliance
with Agreements and Conditions.
The
Company shall have performed and complied with all material agreements and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date.
7.3. Absence
of Material Adverse Changes.
No
material adverse change in the business, assets, financial condition, or
prospects of the Company shall have occurred, no substantial part of the assets
of the Company not substantially covered by insurance shall have been destroyed
due to fire or other casualty, and no event shall have occurred which has had
or
will have a material adverse effect on the business, assets, financial condition
or prospects of the Company.
7.4. Board
Approval.
The
Company’s Board of Directors shall have taken the action required by them
pursuant to this Agreement, including an amendment to the Company’s articles of
incorporation to adopt the rights and preferences of the Series A-1 Preferred
Stock, authorize issuance of the Series A-1 Preferred Stock and Common Stock
to
be issued upon conversion of the Series A-1 Preferred Stock and the reservation
of the shares of Common Stock to be issued upon conversion of the Series A-1
Preferred Stock.
7.5. Other
Documents.
The
Company shall have delivered to the Buyer such other documents and instruments
as the Buyers deem reasonably necessary or desirable to consummate the
transactions contemplated hereby.
All
documents delivered to the Buyers shall be in form and substance reasonably
satisfactory to the Buyers.
8. CONDITIONS
TO OBLIGATIONS OF THE COMPANY.
All
of
the obligations of the Company to consummate the transactions contemplated
by
this Agreement are subject to the fulfillment and satisfaction of each and
every
of the following conditions on or prior to the Closing, any or all of which
may
be waived in whole or in part by the Company:
8.1. Representations
and Warranties.
The
representations and warranties contained in Section
4 of
this
Agreement and in any certificate, instrument, schedule, agreement or other
writing delivered by or on behalf of Buyers in connection with the transactions
contemplated by this Agreement shall be true and correct in all material
respects (except for representations and warranties which are by their terms
qualified by materiality, which shall be true, correct and complete in all
respects) when made and shall be deemed to be made again at and as of the
Closing Date and shall be true at and as of such time in all material respects
(except for representations and warranties which are by their terms qualified
by
materiality, which shall be true, correct and complete in all
respects).
15
8.2. Compliance
with Agreements and Conditions.
Buyers
shall have performed and complied with all material agreements and conditions
required by this Agreement to be performed or complied with by Buyer prior
to or
on the Closing Date.
9. INDEMNITY.
9.1. Indemnification
by the Company.
The
Company (hereinafter collectively called the “Company
Indemnitor”)
shall
defend, indemnify and hold harmless each Buyer, its direct and indirect parent
corporations, subsidiaries and affiliates, their officers, members, directors,
employees, attorneys and agents (hereinafter collectively called “Buyer
Indemnitees”)
against and in respect of any and all loss, damage, liability, fine, penalty,
cost and expense, including reasonable attorneys' fees and amounts paid in
settlement (collectively, “Buyer
Losses”),
suffered or incurred by any Buyer Indemnitee by reason of, or arising out of:
(a) any
misrepresentation, breach of warranty or breach or nonfulfillment of any
covenant, obligation or agreement of the Company contained in this Agreement
or
in any certificate, schedule, instrument or document delivered to such Buyer
by
or on behalf of the Company pursuant to the provisions of this Agreement
(without regard to materiality thresholds contained therein); and
(b) any
liabilities of the Company of any nature whatsoever (including tax liability,
penalties and interest), whether accrued, absolute, contingent or otherwise,
(i)
existing as of the date of the 2006 Company Balance Sheet, and required to
be
shown therein in accordance with GAAP, to the extent not reflected or reserved
against in full in the 2006 Company Balance Sheet; or (ii) arising or occurring
between March 31, 2006 and the Closing Date, except for liabilities arising
in
the ordinary course of business, none of which shall have a material adverse
effect on the Company.
(c) Indemnification
by Buyers.
Each
Buyer (hereinafter called the “Buyer
Indemnitor”)
shall
defend, indemnify and hold harmless the Company, its direct and indirect parent
corporations, subsidiaries and affiliates, their officers, members, directors,
employees, attorneys and agents (hereinafter called “Company
Indemnitee”)
against and in respect of any and all loss, damage, liability, cost and expense,
including reasonable attorneys' fees and amounts paid in settlement
(collectively, “Company
Losses”),
suffered or incurred by Company Indemnitee by reason of or arising out of any
misrepresentation, breach of warranty or breach or non-fulfillment of any
material covenant, obligation or agreement of such Buyer contained in this
Agreement or in any other certificate, schedule, instrument or document
delivered to the Company by or on behalf of such Buyer pursuant to the
provisions of this Agreement (without regard to materiality thresholds contained
therein).
16
9.2. Defense
of Claims.
(a) Each
party seeking indemnification hereunder (an “Indemnitee”):
(i)
shall provide the other party or parties (the “Indemnitor”)
written notice of any claim or action by a third party for which an Indemnitor
may be liable under the terms of this Agreement, within ten (10) days after
such
claim or action arises and is known to Indemnitee, and (ii) shall give the
Indemnitor a reasonable opportunity to participate in any proceedings and to
settle or defend any such claim or action. The expenses of all proceedings,
contests or lawsuits with respect to such claims or actions shall be borne
by
the Indemnitor. If the Indemnitor wishes to assume the defense of such claim
or
action, the Indemnitor shall give written notice to the Indemnitee within ten
(10) days after notice from the Indemnitee of such claim or action, and the
Indemnitor shall thereafter assume the defense of any such claim or liability,
through counsel reasonably satisfactory to the Indemnitee, provided that
Indemnitee may participate in such defense at their own expense, and the
Indemnitor shall, in any event, have the right to control the defense of the
claim or action. The failure of an Indemnitee to give any notice required by
this Section shall not affect any of such party’s rights under this Section or
otherwise, except and to the extent that such failure is actually prejudicial
to
the rights or obligations of the Indemnitor.
(b) If
the
Indemnitor shall not assume the defense of, or if after so assuming it shall
fail to defend, any such claim or action, the Indemnitee may defend against
any
such claim or action in such manner as they may deem appropriate and the
Indemnitees may settle such claim or litigation on such terms as they may deem
appropriate but subject to the Indemnitor's approval, such approval not to
be
unreasonably withheld; provided, however, that any such settlement shall be
deemed approved by the Indemnitor if the Indemnitor fails to object thereto,
by
written notice to the Indemnitee, within fifteen (15) days after the
Indemnitor's receipt of a written summary of such settlement. The Indemnitor
shall promptly reimburse the Indemnitee for the amount of all expenses, legal
and otherwise, incurred by the Indemnitee in connection with the defense and
settlement of such claim or action.
(c) If
a
non-appealable judgment is rendered against any Indemnitee in any action covered
by the indemnification hereunder, or any lien attaches to any of the assets
of
any of the Indemnitee, the Indemnitor shall immediately upon such entry or
attachment pay such judgment in full or discharge such lien unless, at the
expense and direction of the Indemnitor, an appeal is taken under which the
execution of the judgment or satisfaction of the lien is stayed. If and when
a
final judgment is rendered in any such action, the Indemnitor shall forthwith
pay such judgment or discharge such lien before any Indemnitee is compelled
to
do so.
9.3. Waiver.
The
failure of any Indemnitee to give any notice or to take any action hereunder
shall not be deemed a waiver of any of the rights of such Indemnitee hereunder,
except to the extent that Indemnitor is actually prejudiced by such
failure.
17
10. TERMINATION.
10.1. Termination.
This
Agreement may be terminated at any time on or prior to the Closing:
(a) By
mutual
consent of Buyers and the Company; or
(b) At
the
election of Buyers if: (i) a Company has breached or failed to perform or comply
with any of its representations, warranties, covenants or obligations under
this
Agreement; or (ii) any of the conditions precedent set forth in Section
6 or 7
is not
satisfied as and when required by this Agreement; or (iii) the Closing has
not
been consummated by October 1, 2006; or
(c) At
the
election of the Company if: (i) a Buyer has breached or failed to perform or
comply with any of its representations, warranties, covenants or obligations
under this Agreement; or (ii) any of the conditions precedent set forth in
Section
6 or 8
is not
satisfied as and when required by this Agreement; or (iii) if the Closing has
not been consummated by October 1, 2006.
10.2. Manner
and Effect of Termination.
Written
notice of any termination (“Termination
Notice”)
pursuant to this Section
10
shall be
given by the party electing termination of this Agreement (“Terminating
Party”)
to the
other party or parties (collectively, the “Terminated
Party”),
and
such notice shall state the reason for termination. The party or parties
receiving Termination Notice shall have a period of ten (10) days after receipt
of Termination Notice to cure the matters giving rise to such termination to
the
reasonable satisfaction of the Terminating Party. If the matters giving rise
to
termination are not cured as required hereby, this Agreement shall be terminated
effective as of the close of business on the tenth (10th) day following the
Terminated Party's receipt of Termination Notice. Upon termination of this
Agreement prior to the consummation of the Closing and in accordance with the
terms hereof, this Agreement shall become void and of no effect, and none of
the
parties shall have any liability to the others, except that nothing contained
herein shall relieve any party from: (a) its obligations under Sections
2.3 and 2.4;
or (b)
liability for its intentional breach of any representation, warranty or covenant
contained herein, or its intentional failure to comply with the terms and
conditions of this Agreement or to perform its obligations
hereunder.
18
11. MISCELLANEOUS.
11.1. Notices.
(a) All
notices, requests, demands, or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt if delivered in person, or upon the expiration of two (2) days after
the
date sent, if sent by federal express (or similar overnight courier service)
to
the parties at the following addresses:
(i) If
to
Buyer: To the address set forth adjacent to the Buyer’s signature to this
Agreement.
(ii) If
to the
Company:
|
Advanced
Communications Technologies, Inc.
|
|
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention: Xxxxx
X. Xxxxxx, President
|
|
Telephone:
(000) 000-0000
|
|
Facsimile:
(000) 000-0000
|
With
a
copy to:
|
Xxxxxx
Xxxxxxx Xxxxxx & Xxxxxxx, LLC
|
|
0000
Xxxxxx Xxxxxx
|
|
Xxxxxxxxxxxx,
XX 00000
|
|
Attention: Xxxx
X. Xxxxxx, Esq.
|
|
Telephone:
(000) 000-0000
|
|
Facsimile:
(000) 000-0000
|
(b) Notices
may also be given in any other manner permitted by law, effective upon actual
receipt. Any party may change the address to which notices, requests, demands
or
other communications to such party shall be delivered or mailed by giving notice
thereof to the other parties hereto in the manner provided herein.
11.2. Survival.
The
representations, warranties, agreements and indemnifica-tions of the parties
contained in this Agreement or in any writing delivered pursuant to the
provisions of this Agreement shall survive any investigation heretofore or
hereafter made by the parties and the consummation of the transactions
contemplated herein and shall continue in full force and effect after the
Closing.
11.3. Counterparts;
Interpretation.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
instrument. This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof, and this
Agreement contains the sole and entire agreement among the parties with respect
to the matters covered hereby. All Schedules hereto shall be deemed a part
of
this Agreement. This Agreement shall not be altered or amended except by an
instrument in writing signed by or on behalf of all of the parties hereto.
No
ambiguity in any provision hereof shall be construed against a party by reason
of the fact it was drafted by such party or its counsel. For purposes of this
Agreement: “herein”, “hereby”, “hereunder”, “herewith”, “hereafter” and
“hereinafter” refer to this Agreement in its entirety, and not to any particular
subsection or paragraph. References to “including” means including without
limiting the generality of any description preceding such term. Nothing
expressed or implied in this Agreement is intended, or shall be construed,
to
confer upon or give any person other than the parties hereto any rights or
remedies under or by reason of this Agreement.
19
11.4. Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York without regard to the principles of conflict of
laws.
11.5. Successors
and Assigns; Assignment.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, legal representatives, and
successors; provided, however, that the Company may not assign this Agreement
or
any rights hereunder, in whole or in part.
11.6. Partial
Invalidity and Severability.
All
rights and restrictions contained herein may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary to render
this Agreement legal, valid and enforceable. If any terms of this Agreement
not
essential to the commercial purpose of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it
is
the intention of the parties that the remaining terms hereof shall constitute
their agreement with respect to the subject matter hereof and all such remaining
terms shall remain in full force and effect. To the extent legally permissible,
any illegal, invalid or unenforceable provision of this Agreement shall be
replaced by a valid provision which will implement the commercial purpose of
the
illegal, invalid or unenforceable provision.
11.7. Waiver
and Modification.
(a)Any
term or condition of this Agreement, and any performance thereof, may be waived
at any time by the party which is entitled to the benefit thereof, but only
if
such waiver is evidenced by a writing signed by such party. No failure on the
part of a party hereto to exercise, and no delay in exercising, any right,
power
or remedy created hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by any such party
preclude any other future exercise thereof or the exercise of any other right,
power or remedy. No waiver by any party hereto to any breach of or default
in
any term or condition of this Agreement shall constitute a waiver of or assent
to any succeeding breach of or default in the same or any other term or
condition hereof.
(b) Any
term
or condition of this Agreement, and any performance thereof, may be waived,
and
any term or condition of this Agreement may be amended or modified, by the
written consent of (i) the Company and (ii) the holders of a majority in
interest of the Series A-1 Convertible Preferred Stock, excluding any holder
who
is an officer or director of the Company or any of its subsidiaries.
20
11.8. Headings.
The
headings as to contents of particular paragraphs of this Agreement are inserted
for convenience only and shall not be construed as a part of this Agreement
or
as a limitation on the scope of any terms or provisions of this
Agreement.
11.9. Expenses.
11.9.1. Legal
Fees.
Except
as otherwise expressly provided herein, all legal and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the Buyer or the Company as each party incurs such
expenses.
11.10. Finder’s
Fees.
The
Buyer represents to the Company that no broker, agent, finder or other party
has
been retained by it in connection with the transactions contemplated hereby
and
that no other fee or commission has been agreed by the Buyer to be paid for
or
on account of the transactions contemplated hereby. The Company represents
to
the Buyer that no broker, agent, finder or other party has been retained by
the
Company in connection with the transactions contemplated hereby and that no
other fee or commission has been agreed by the Company to be paid for or on
account of the transactions contemplated hereby.
11.11. Gender.
Where
the context requires, the use of the singular form herein shall include the
plural, the use of the plural shall include the singular, and the use of any
gender shall include any and all genders.
11.12. Currency.
All
foreign currency amounts required to be converted to U.S. Dollars for purposes
of this Agreement shall be converted in accordance with GAAP.
11.13. Acceptance
by Fax.
This
Agreement shall be accepted, effective and binding, for all purposes, when
the
parties shall have signed and transmitted to each other, by telecopier or
otherwise, copies of the signature pages hereto.
11.14. Attorneys
Fees.
If any
legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any provision of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees, court
costs and all expenses (including, without limitation, all such fees, costs
and
expenses incident to appellate, bankruptcy, post-judgment and alternative
dispute resolution proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party may be entitled.
11.15. NO
JURY TRIAL.
THE
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY
OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON
OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE
OF
THIS AGREEMENT.
21
IN
WITNESS WHEREOF,
the
parties have executed this Investment Agreement or caused this Investment
Agreement to be duly executed by their duly authorized officers as of the day
and year first above written.
BUYER:
|
Name:
|
|
Number
of Shares of Series A-1 Preferred Stock:
______________________________
|
Address:
COMPANY:
ADVANCED
COMMUNICATIONS TECHNOLOGIES, INC.
By:
Name:
Xxxxx
X. Xxxxxx
Title: President
22
