Exhibit 10.19
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT is made as of September 5,
2006, by and among Migo Software (the "COMPANY"), a corporation organized under
the laws of the State of Delaware, with its principal offices at 000 Xxxx
Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx, and KINGSTON TECHNOLOGY CORPORATION
(the "PURCHASER"), a corporation organized under the laws of the State of
California, with its principal offices at 00000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx,
Xxxxxxxxxx 00000.
RECITALS
A. The parties are simultaneously entering into a Development Agreement.
B. As a part of that strategic agreement, the parties agree that it would be in
their best interests for Purchaser to acquire an equity interest in the Company.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Purchaser agree as follows:
SECTION 1. Authorization of Sale of the Shares and Warrants. Subject to the
terms and conditions of this Agreement, the Company has authorized (i) the sale
of up to 468,750 shares (the "SHARES") of Common Stock and (ii) the issuance of
warrants in substantially the form attached hereto as Exhibit A to purchase up
to 950,000 shares of Common Stock (the "WARRANTS", and together with the Shares,
the "SECURITIES"). The securities (including Common Stock and any other
securities) issuable upon exercise of the Warrants are referenced herein as the
"WARRANT SHARES".
SECTION 2. Agreement to Sell and Purchase the Shares and Warrants. At the
Closing (as defined herein), the Company will sell to the Purchaser, and the
Purchaser will buy from the Company, upon the terms and conditions hereinafter
set forth, the Securities for a purchase price equal to $150,000 (the "PURCHASE
PRICE").
SECTION 3. Closing and Delivery of the Securities. The "CLOSING" shall
occur upon the execution of this Agreement by the Company and the Purchaser. At
the Closing, the Purchaser shall pay to the Company the Purchase Price and the
Company shall also deliver to the Purchaser: one or more stock certificates
registered in the name of the Purchaser representing the number of Shares and
bearing the legend specified in Section 5.5 and Warrants exercisable for the
Warrant Shares (subject to adjustment as set forth in such Warrants). The
name(s) in which the stock certificates and Warrants are to be registered are
set forth in the Questionnaire attached hereto as Exhibit B.
SECTION 4. Representations, Warranties and Covenants of the Company. For
the benefit of the Purchaser, the Company hereby represents and warrants as
follows:
4.1 SEC Reports. The Company represents and warrants that the information
contained in the following documents (the "SEC DOCUMENTS"), which the Company
has made available to
the Purchaser through the SEC's website (xxx.xxx.xxx) prior to the date of the
Closing, is true and correct in all material respects as of their respective
filing dates:
(a) the Company's Annual Report on Form 10-KSB for the year (transition
period) ended December 31, 2005, as amended;
(b) the Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended March 31, 2006;
(c) the Company's Current Reports on Form 8-K filed January 12, 2006, March
21, 2006, May 17, 2006 and July 11, 2006; and
(d) all other documents, if any, filed by the Company with the SEC since
July 11, 2006, pursuant to the reporting requirements of the Securities Exchange
Act of 1934, as amended.
4.2 Authorization; Validity of Transaction Documents. The Company has full
right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
This Agreement shall constitute valid and binding obligations of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 5. Representations, Warranties and Covenants of Purchasers. The
Purchaser hereby represents and warrants as follows:
5.1 Investment Representations and Covenants. The Purchaser represents and
warrants to, and covenants with, the Company that: (i) the Purchaser is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares representing an investment
decision like that involved in the purchase of the Securities, including
investments in securities issued by the Company, and has requested, received,
reviewed and considered all information it deems relevant in making an informed
decision to purchase the Securities; (ii) the Purchaser is acquiring the
Securities in the ordinary course of its business and for its own account for
investment only and with no present intention of distributing any of such
Securities or any arrangement or understanding with any other persons regarding
the distribution of such Shares within the meaning of Section 2(11) of the
Securities Act of 1933, as amended (the "SECURITIES ACT"); (iii) the Purchaser
will not, directly or indirectly, offer, sell, pledge, transfer or otherwise
dispose of (or solicit any offers to buy, purchase or otherwise acquire or take
a pledge of) any of the Securities except in compliance with the Securities Act
and the Rules and Regulations promulgated thereunder; (iv) the Purchaser has, in
connection with its decision to purchase the Securities set forth on the
signature page hereto, relied solely upon the SEC Documents and the documents
included therein and the representations and warranties of the Company contained
herein; and (v) the Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
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5.2 Authorization; Validity of Transaction Documents. The Purchaser has full
right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement.
This Agreement shall constitute valid and binding obligations of the Purchaser
enforceable in accordance with their terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5.3 Requirements of Foreign Jurisdictions. The Purchaser acknowledges,
represents and agrees that no action has been or will be taken in any
jurisdiction outside the United States by the Company that would permit an
offering of the Securities, or possession or distribution of offering materials
in connection with the issue of the Securities, in any jurisdiction outside the
United States where action for that purpose is required.
5.4 No Legal, Tax or Investment Advice. The Purchaser understands that nothing
in this Agreement or any other materials presented to the Purchaser in
connection with the purchase and sale of the Securities constitutes legal, tax
or investment advice. The Purchaser has consulted such legal, tax and investment
advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of Securities.
5.5 Restrictive Legend. The Purchaser understands that, until such time as the
Securities may be sold pursuant to Rule 144 under the Securities Act without any
restriction as to the number of securities as of a particular date that can then
be immediately sold, the Securities may bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of the certificates for the Shares or Warrant Shares):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES MAY NOT BE
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL, IN
FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE COMPANY, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR UNLESS SOLD PURSUANT TO RULE
144 UNDER SAID ACT."
SECTION 6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Purchaser herein and in the certificates for the Shares or Warrants
delivered pursuant hereto shall survive the execution of this Agreement, the
delivery to the Purchaser of the Securities being purchased and the payment
therefor.
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SECTION 7. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, facsimile (with receipt confirmed by telephone)
or nationally recognized overnight express courier postage prepaid, and shall be
deemed given when so mailed and shall be delivered as addressed as follows:
if to the Company, to:
Migo Software.
000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, CFO
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxx, P.C.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other person at such other place as the Company shall designate
to the Purchasers in writing; and
if to the Purchaser, to:
Kingston Technology Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Business Legal
Fax: (000) 000-0000
SECTION 8. Changes. This Agreement may not be modified or amended except
pursuant to an instrument in writing signed by the Company and the Purchaser.
SECTION 9. Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
SECTION 10. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of laws.
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SECTION 12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
MIGO SOFTWARE, INC.
By
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Name:
----------------------------------
Title:
---------------------------------
KINGSTON TECHNOLOGY CORPORATION
By
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Name: Xxxxx Xxx
Title: Vice President
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EXHIBITS
Exhibit A Form of Warrant
Exhibit B Questionnaire
EXHIBIT B
QUESTIONNAIRE
Pursuant to Section 3 of the Common Stock and Warrant Purchase Agreement,
please provide us with the following information:
1. The exact name that your Securities are to be Registered in (this is
the name that will appear on your stock certificate(s) and warrant(s).
You may use a nominee name if appropriate:
Kingston Technology Corporation
2. The Social Security Number or Tax Identification Number of the
Registered Holder listed in response to item 1 above:
00-0000000
F-1
