SECURITIES PURCHASE AGREEMENT
Exhibit
10.2
THIS SECURITIES PURCHASE
AGREEMENT (“Agreement”) is made
as of the 17th day of August, 2010, by and among First Blush Brands, Inc., a
Delaware corporation, with an address at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 (the “Company”), and the
Investors set forth on the signature pages affixed hereto (each an “Investor” and
collectively the “Investors”).
Recitals:
A. The
Company and the Investors are executing and delivering this Agreement in
connection with an offering of securities of the Company (the “Offering”), in
reliance upon the exemption from securities registration afforded by the
provisions of Section 4(2) of the Securities Act of 1933, as amended (the “1933 Act”), or
Regulation D promulgated thereunder (“Regulation D”);
and
B. The
Investors wish to purchase from the Company, and the Company wishes to sell and
issue to the Investors, upon the terms and conditions stated in this
Agreement:
(i) Promissory
notes in an aggregate principal amount of $1,100,000, with an interest rate of
ten (10%) percent per annum (the “Notes”), in
substantially the form attached hereto as Exhibit
A; and
(ii) 1,000,000
shares of Common Stock of the Company (the “Shares”);
and
C. Payment
of the Notes will be guaranteed by Rose Hill Gardens LLC (“RHG”) pursuant to the
Guaranty (the “Guaranty”), in
substantially the form attached hereto as Exhibit
B;
D. The
Company and each Investor will execute and deliver a Registration Rights
Agreement, in substantially the form attached hereto as Exhibit
C (the
“Registration Rights
Agreement”), pursuant to which the Company will agree to provide certain
piggyback registration rights under the 1933 Act, and the rules and regulations
promulgated thereunder, and applicable state securities laws.
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. In addition to
those terms defined above and elsewhere in this Agreement, for the purposes of
this Agreement, the following terms shall have the meanings set forth
below:
“Affiliate” means,
with respect to any Person, any other Person which directly or indirectly
through one or more intermediaries Controls, is controlled by, or is under
common Control with, such Person.
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“Business Day” means a
day, other than a Saturday or Sunday, on which banks in New York City are open
for the general transaction of business.
“Common Stock” means
the Company’s common stock, par value $0.001 per share, and any securities into
which the common stock may be reclassified.
“Company’s Knowledge”
means the actual knowledge of the executive officers (as defined in Rule 405
under the 0000 Xxx) of the Company.
“Confidential
Information” means trade secrets, confidential information and know-how
(including but not limited to ideas, formulae, compositions, processes,
procedures and techniques, research and development information, computer
program code, performance specifications, support documentation, drawings,
specifications, designs, business and marketing plans, and customer and supplier
lists and related information) and any other non public information of or about
the Company and its financial condition, business, assets and/or
prospects.
“Control” (including
the terms “controlling”, “controlled by” or “under common control with”) means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Guaranty” has the
meaning set forth in the Recitals above.
“Interest” means
interest at a rate of 10% per annum.
“Intellectual
Property” means all of the following: (i) patents, patent applications,
patent disclosures and inventions (whether or not patentable and whether or not
reduced to practice); (ii) trademarks, service marks, trade dress, trade names,
corporate names, logos, slogans and Internet domain names, together with all
goodwill associated with each of the foregoing; (iii) copyrights and
copyrightable works; (iv) registrations, applications and renewals for any of
the foregoing; and (v) proprietary computer software (including but not limited
to data, data bases and documentation).
“Loan Amount” means
$1,100,000.
“Material Adverse
Effect” means a material adverse effect on (i) the assets, liabilities,
results of operations, condition (financial or otherwise), business, or
prospects of the Company and its Subsidiaries taken as a whole, or (ii) the
ability of the Company to perform its obligations under the Transaction
Documents.
“Notes” has the
meaning set forth in the Recitals above.
“Offering” has the
meaning set forth in the Recitals above.
“Person” means an
individual, corporation, partnership, limited liability company, trust, business
trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity
not specifically listed herein.
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“SEC Filings” has the
meaning set forth in Section 4.6.
“Securities” means the
Notes and the Shares.
“Shares” has the
meaning set forth in the Recitals above.
“Subsidiary” of any
Person means another Person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first Person.
“Transaction
Documents” means this Agreement, the Notes, the Guaranty, the
Registration Rights Agreement and certain other papers, agreements, documents,
instruments and certificates necessary to carry out the purposes
thereof.
“1933 Act” has the
meaning set forth in the Recitals above.
“1934 Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated thereunder.
2. Purchase
and Sale of Notes and Shares. Subject to the
terms and conditions of this Agreement, at the Closing (as defined in Section 3
below), the Investors shall severally, and not jointly, purchase, and the
Company shall sell and issue to such Investors, the Notes and Shares in the
respective amounts set forth opposite the Investors’ names on the signature
pages attached hereto in exchange for payment by each Investor of its share of
the Loan Amount.
3. Closing. At the closing
(the “Closing”), and
provided each of the conditions set forth in Section 6 hereof have been
satisfied or waived by the appropriate party or parties, (a) each Investor shall
deliver, or cause to be delivered, its share of the Loan Amount to the Company,
in immediately available funds, (b) the Company shall deliver the appropriate
principal amount of Notes and number of Shares and the executed and Registration
Rights Agreement to the applicable Investors and (c) RHG shall deliver the
executed Guaranty to the Investors. For the purposes hereof, the date
the Closing actually takes place shall be referred to as the “Closing
Date.” The Closing shall take place at the offices of Blank Rome LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location and on
such other date as the Company and the Investors shall mutually
agree.
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4. Representations
and Warranties of the Company. The Company
hereby represents and warrants to the Investors that, except as set forth in the
schedules delivered herewith (collectively, the “Disclosure
Schedules”):
4.1 Organization, Good Standing
and Qualification. Each of the Company and its Subsidiaries is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to carry on its business as now conducted and to own its
properties. Each of the Company and its Subsidiaries is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification or leasing necessary unless the
failure to so qualify has not had and could not reasonably be expected to have a
Material Adverse Effect. The Company’s Subsidiaries are listed on
Schedule 4.1
hereto.
4.2 Authorization. The
Company has full power and authority and has taken all requisite action on the part
of the Company, its officers, directors and stockholders necessary for (i) the
authorization, execution and delivery of the Transaction Documents, as
applicable, (ii) the authorization of the performance of all obligations of the
Company hereunder or thereunder, and (iii) the authorization, issuance (or
reservation for issuance) and delivery of the Securities. The
Transaction Documents constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors’
rights generally.
4.3 Capitalization. (a)
Schedule 4.3
sets forth (i) the authorized capital stock of the Company on the date hereof;
(ii) the number of shares of capital stock issued and outstanding; (iii) the
number of shares of capital stock issuable pursuant to the Company’s stock
plans; and (iv) the number of shares of capital stock issuable and reserved for
issuance pursuant to securities (other than the Securities) exercisable for, or
convertible into or exchangeable for any shares of capital stock of the
Company. All of the issued and outstanding shares of the Company’s
capital stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of pre-emptive rights and were issued in full compliance
with applicable state and federal securities law and any rights of third
parties. Except as described on Schedule 4.3, all of
the issued and outstanding shares of capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid, nonassessable and free of
pre-emptive rights, were issued in full compliance with applicable state and
federal securities law and any rights of third parties and are owned by the
Company, beneficially and of record, subject to no lien, encumbrance or other
adverse claim. Except as described on Schedule 4.3, no
Person is entitled to pre-emptive or similar statutory or contractual rights
with respect to any securities of the Company. Except as described on
Schedule 4.3,
there are no outstanding warrants, options, convertible securities or other
rights, agreements or arrangements of any character under which the Company or
any of its Subsidiaries is or may be obligated to issue any equity securities of
any kind and except as contemplated by this Agreement, neither the Company nor
any of its Subsidiaries is currently in negotiations for the issuance of any
equity securities of any kind. Except as described on Schedule 4.3, there
are no voting agreements, buy-sell agreements, option or right of first purchase
agreements or other agreements of any kind among the Company and any of the
securityholders of the Company relating to the securities of the Company held by
them. Except as described on Schedule 4.3, no
Person has the right to require the Company to register any securities of the
Company under the 1933 Act, whether on a demand basis or in connection with the
registration of securities of the Company for its own account or for the account
of any other Person.
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(b) Except
as described on Schedule 4.3, the
issuance and sale of the Securities hereunder will not obligate the Company to
issue shares of Common Stock or other securities to any other Person (other than
the Investors) and will not result in the adjustment of the exercise,
conversion, exchange or reset price of any outstanding security.
(c) Except
as described on Schedule 4.3, the
Company does not have outstanding stockholder purchase rights or “poison pill”
or any similar arrangement in effect giving any Person the right to purchase any
equity interest in the Company upon the occurrence of certain
events.
4.4 Valid
Issuance. The Notes have been duly and validly authorized and
shall be free and clear of all encumbrances and restrictions (other than those
created by the Investors), except for restrictions on transfer set forth in the
Notes. Upon issuance, the Shares will be validly issued, fully paid
and non-assessable free and clear of all encumbrances and restrictions, except
for restrictions on transfer set forth in the Transaction Documents or imposed
by applicable securities laws and except for those created by the
Investors.
4.5 Consents. Except
as described in Schedule 4.5, the execution, delivery and performance by the
Company of the Transaction Documents, and the offer, issuance and sale of the
Securities, require no consent of, action by or in respect of, or filing with,
any Person, governmental body, agency, or official other than filings that have
been made pursuant to applicable state securities laws and post-sale filings
pursuant to applicable state and federal securities laws or any other notices
required thereby, all of which the Company undertakes to file within the
applicable time periods. Subject to the accuracy of the
representations and warranties of each Investor set forth in Section 5 hereof,
the Company has taken all action necessary to exempt (i) the issuance and sale
of the Notes and Shares and (ii) the other transactions contemplated by the
Transaction Documents from the provisions of any stockholder rights plan or
other “poison pill” arrangement, any anti-takeover, business combination or
control share law or statute binding on the Company or to which the Company or
any of its assets and properties may be subject and any provision of the
Company’s Articles of Incorporation, as amended, or Bylaws that is or could
reasonably be expected to become applicable to the Investors as a result of the
transactions contemplated hereby, including without limitation, the issuance of
the Securities and the ownership, disposition or voting of the Securities by the
Investors or the exercise of any right granted to the Investors pursuant to this
Agreement or the other Transaction Documents.
4.6 Delivery of SEC Filings;
Business. The Company has made available to the Investors
through the XXXXX system, true and complete copies of the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2009 (the “10-K”), and all other
reports filed by the Company, including without Limitation the Current Report on
Form 8-K filed on May 13, 2010, as amended on May 25, 2010, pursuant to the 1934
Act since the filing of the 10-K and prior to the date hereof (collectively, the
“SEC
Filings”). Except as indicated in the SEC Filings, the SEC
Filings are the only filings required of the Company pursuant to the 1934 Act
for such period.
4.7 Use of
Proceeds. The net proceeds from this Offering will be used
primarily for: (a) retirement of current senior debt and (b) general working
capital purposes.
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4.8 SEC
Filings. At the time of filing thereof, the SEC Filings
complied as to form in all material respects with the requirements of the 1934
Act and did 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.
4.9 No Conflict, Breach,
Violation or Default. The
execution, delivery and performance of the Transaction Documents by the Company
and the issuance and sale of the Securities will not conflict with or result in
a breach or violation of any of the terms and provisions of, or constitute a
default under (i) the Company’s Articles of Incorporation, as amended, or the
Company’s Bylaws, both as in effect on the date hereof (true and complete copies
of which have been made available to the Investors), or (ii)(a) any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company, any Subsidiary or any
of their respective assets or properties, or (b) any agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or a
Subsidiary is bound or to which any of their respective assets or properties is
subject.
4.10 Tax
Matters. The Company and each Subsidiary has timely prepared
and filed all tax returns required to have been filed by the Company or such
Subsidiary with all appropriate governmental agencies and timely paid all taxes
shown thereon or otherwise owed by it. The charges, accruals and
reserves on the books of the Company in respect of taxes for all fiscal periods
are adequate in all material respects, and there are no material unpaid
assessments against the Company or any Subsidiary nor, to the Company’s
Knowledge, any basis for the assessment of any additional taxes, penalties or
interest for any fiscal period or audits by any federal, state or local taxing
authority except for any assessment which is not material to the Company and its
Subsidiaries, taken as a whole. All taxes and other assessments and
levies that the Company or any Subsidiary is required to withhold or to collect
for payment have been duly withheld and collected and paid to the proper
governmental entity or third party when due. There are no tax liens
or claims pending or, to the Company’s Knowledge, threatened against the Company
or any Subsidiary or any of their respective assets or
property. Except as described on Schedule 4.10, there
are no outstanding tax sharing agreements or other such arrangements between the
Company and any Subsidiary or other corporation or entity.
4.11 Title to
Properties. Except as disclosed in Schedule 4.11, the
Company and each Subsidiary has good and marketable title to all real properties
and all other properties and assets owned by it, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or currently planned to be made thereof
by them; and except as disclosed in Schedule 4.11, the
Company and each Subsidiary holds any leased real or personal property under
valid and enforceable leases with no exceptions that would materially interfere
with the use made or currently planned to be made thereof by them.
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4.12 Certificates, Authorities
and Permits. The Company and each Subsidiary possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it, and neither the
Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or such Subsidiary, could
reasonably be expected to have a Material Adverse Effect, individually or in the
aggregate.
4.13 Labor Matters.
(a) Except as set forth on Schedule 4.13, the Company is not a party to or bound by any
collective bargaining agreements or other agreements with labor
organizations. The Company has not violated in any material respect
any laws, regulations, orders or contract terms, affecting the collective
bargaining rights of employees, labor organizations or any laws, regulations or
orders affecting employment discrimination, equal opportunity employment, or
employees’ health, safety, welfare, wages and hours.
(b) (i) There are no labor disputes existing, or to the
Company’s Knowledge, threatened, involving strikes, slow-downs, work stoppages,
job actions, disputes, lockouts or any other disruptions of or by the Company’s
employees, (ii) there are no unfair labor practices or petitions for election
pending or, to the Company’s Knowledge, threatened before any governmental
agency or labor commission relating to the Company’s employees, (iii) no demand
for recognition or certification heretofore made by any labor organization or
group of employees is pending with respect to the Company, and (iv) to the
Company’s Knowledge, the Company enjoys good labor and employee relations with
its employees and labor organizations.
(c) The Company is, and at all times has been, in compliance
in all material respects with all applicable laws respecting employment
(including laws relating to classification of employees and independent
contractors) and employment practices, terms and conditions of employment, wages
and hours, and immigration and naturalization.
(d) Except as disclosed in the SEC Filings or as described
on Schedule
4.13, the Company is not a party to, or
bound by, any employment or other contract or agreement that contains any
severance, termination pay or change of control liability or obligation,
including, without limitation, any “excess parachute payment,” as defined in
Section 2806(b) of the Internal Revenue Code.
4.14 Intellectual
Property. Except as specified in Schedule 4.14:
(a) All
Intellectual Property of the Company and its Subsidiaries is currently in
compliance with all legal requirements (including timely filings, proofs and
payments of fees) and is valid and enforceable. No Intellectual
Property of the Company or its Subsidiaries which is necessary for the conduct
of Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted has been or is now involved
in any cancellation, dispute or litigation, and, to the Company’s Knowledge, no
such action is threatened. No patent of the Company or its
Subsidiaries has been or is now involved in any interference, reissue,
re-examination or opposition proceeding.
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(b) The
Company and its Subsidiaries own or have the valid right to use all of the
Intellectual Property that is necessary for the conduct of the Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted and for the ownership, maintenance and
operation of the Company’s and its Subsidiaries’ properties and assets, free and
clear of all liens, encumbrances, adverse claims or obligations to license all
such owned Intellectual Property and Confidential Information, other than
licenses entered into in the ordinary course of the Company’s and its
Subsidiaries’ businesses. The Company and its Subsidiaries have a
valid and enforceable right to use all third party Intellectual Property and
Confidential Information used or held for use in the respective businesses of
the Company and its Subsidiaries.
(c) The
consummation of the transactions contemplated hereby and by the other
Transaction Documents will not result in the alteration, loss, impairment of or
restriction on the Company’s or any of its Subsidiaries’ ownership or right to
use any of the Intellectual Property or Confidential Information which is
necessary for the conduct of Company’s and each of its Subsidiaries’ respective
businesses as currently conducted or as currently proposed to be
conducted.
4.15 Environmental
Matters. Except as specified in Schedule 4.15, to the
Company’s Knowledge, neither the Company nor any Subsidiary (i) is in violation
of any statute, rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “Environmental Laws”),
(ii) owns or operates any real property contaminated with any substance that is
subject to any Environmental Laws, (iii) is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or (iv) is subject to any
claim relating to any Environmental Laws, which violation, contamination,
liability or claim has had or could reasonably be expected to have a Material
Adverse Effect, individually or in the aggregate; and there is no pending or, to
the Company’s Knowledge, threatened investigation that might lead to such a
claim.
4.16 Litigation. Except
as described on Schedule 4.16, there
are no pending actions, suits or proceedings against or affecting the Company,
its Subsidiaries or any of its or their properties; and to the Company’s
Knowledge, no such actions, suits or proceedings are threatened or
contemplated.
4.17 Financial
Statements. The financial statements included in each SEC
Filing made after January 1, 2010 present fairly, in all material respects, the
consolidated financial position of the Company as of the dates shown and its
consolidated results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis (“GAAP”) (except as may
be disclosed therein or in the notes thereto, and, in the case of quarterly
financial statements, as permitted by Form 10-Q under the 1934
Act). Except as set forth in the financial statements of the Company
included in the SEC Filings filed prior to the date hereof or as described on
Schedule 4.17,
neither the Company nor any of its Subsidiaries has incurred any liabilities,
contingent or otherwise, except those incurred in the ordinary course of
business, consistent (as to amount and nature) with past practices since the
date of such financial statements, none of which, individually or in the
aggregate, have had or could reasonably be expected to have a Material Adverse
Effect.
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4.18 Insurance
Coverage. Except as set forth on Schedule 4.18, the
Company and each Subsidiary maintains in full force and effect insurance
coverage that is customary for comparably situated companies for the business
being conducted and properties owned or leased by the Company and each
Subsidiary, and the Company reasonably believes such insurance coverage to be
adequate against all liabilities, claims and risks against which it is customary
for comparably situated companies to insure.
4.19 Brokers and
Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company, other than as
described in Schedule
4.19.
4.20 No Directed Selling Efforts
or General Solicitation. Neither the Company nor any Person
acting on its behalf has conducted any general solicitation or general
advertising (as those terms are used in Regulation D) in connection with the
offer or sale of any of the Securities.
4.21 No Integrated
Offering. Neither the Company nor any of its Affiliates, nor
any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(2) of the 1933 Act for the exemption from registration for
the transactions contemplated hereby or would require registration of the
Securities under the 1933 Act.
4.22 Private
Placement. Assuming the accuracy of the representations of the
Investors set forth in Sections 5.1 through 5.12 hereof, the offer and sale of
the Securities to the Investors as contemplated hereby is exempt from the
registration requirements of the 1933 Act.
4.23 Transactions with
Affiliates. Except as disclosed in the SEC Filings or as
disclosed on Schedule
4.23, none of the officers or directors of the Company and, to the
Company’s Knowledge, none of the employees of the Company is presently a party
to any transaction with the Company or any Subsidiary (other than as holders of
stock options and/or warrants, and for services as employees, officers and
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 officer,
director or such employee or, to the Company’s Knowledge, any entity in which
any officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
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4.24 Internal
Controls. Except as set forth in the SEC Filings, the Company
is in material compliance with the provisions of
the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the
Company. The Company and the 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 GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in 1934
Act Rules 13a-14 and 15d-14) for the Company and designed such disclosure
controls and procedures to ensure that material information relating to the
Company, including the Subsidiaries, is made known to the certifying officers by
others within those entities, particularly during the period in which the
Company’s most recently filed periodic report under the 1934 Act, as the case
may be, is being prepared. The Company’s certifying officers have
evaluated the effectiveness of the Company's controls and procedures as of the
end of the period covered by the most recently filed periodic report under the
1934 Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed
periodic report under the 1934 Act the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date,
there have been no significant changes in the Company’s internal controls (as
such term is defined in Item 308 of Regulation S-K) or, to the Company’s
Knowledge, in other factors that could significantly affect the Company’s
internal controls. The Company maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with GAAP and the applicable requirements of the 0000
Xxx.
4.25 Disclosures. Neither
the Company nor any Person acting on its behalf has provided the Investors or
their agents or counsel with any information that constitutes or might
constitute material, non-public information. The written materials
delivered to the Investors in connection with the transactions contemplated by
the Transaction Documents do not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
5. Representations
and Warranties of the Investors. Each of the
Investors hereby severally, and not jointly, represents and warrants to the
Company that:
5.1 Organization and
Existence. Such Investor is an individual or a validly
existing corporation, limited partnership, or limited liability company and has
all requisite individual, corporate, partnership or limited liability company
power and authority to invest in the Securities pursuant to this
Agreement.
5.2 Authorization. The
execution, delivery and performance by such Investor of the Transaction
Documents to which such Investor is a party have been duly authorized and will
each constitute the valid and legally binding obligation of such Investor,
enforceable against such Investor in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors’ rights generally.
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5.3 Purchase Entirely for Own
Account. The Securities to be received by such Investor
hereunder will be acquired for such Investor’s own account, not as nominee or
agent, and not with a view to the resale or distribution of any part thereof in
violation of the 1933 Act, and such Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same in
violation of the 1933 Act without prejudice,
however, to such Investor’s right at all times to sell or otherwise dispose of
all or any part of such Securities in compliance with applicable federal and
state securities laws. Nothing contained herein shall be deemed a
representation or warranty by such Investor to hold the Securities for any
period of time. Such Investor is not a broker-dealer
registered with the SEC under the 1934 Act or an entity engaged in a business
that would require it to be so registered.
5.4 Investment
Experience. Such Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Securities and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of
Information. Such Investor has had an opportunity to receive
all information related to the Company requested by it and to ask questions of
and receive answers from the Company regarding the Company, its business and the
terms and conditions of the offering of the Securities. Such Investor
acknowledges receipt of copies of the SEC Filings. Neither such
inquiries nor any other due diligence investigation conducted by such Investor
shall modify, amend or affect such Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement.
5.6 Restricted
Securities. Such Investor understands that the Securities are
characterized as “restricted securities” under the U.S. federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances.
5.7 Legends. It
is understood that, except as provided below, certificates evidencing the
Securities may bear the following or any similar legend:
(a) THE
SECURITIES REPRESENTED HEREBY HAVE 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.
(b) If
required by the authorities of any state in connection with the issuance of sale
of the Securities, the legend required by such state authority.
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5.8 Accredited
Investor. Such Investor is an “accredited investor” within the
meaning of Rule 501(a) of Regulation D promulgated under the 1933 Act for the
reasons checked on Schedule
1 hereto.
5.9 No General
Solicitation. Such investor did not learn of the investment in
the Securities as a result of any public advertising or
solicitation.
5.10 Brokers and
Finders. Such Investor has not entered into an agreement with
a broker or finder for any commission, fee or other compensation pursuant to any
agreement, arrangement or understanding entered into by or on behalf of such
Investor, other than as described on Schedule
5.10.
5.11 Prohibited
Transactions. During the last thirty (30) days prior to the
date hereof, neither such Investor nor any Affiliate of such Investor which (1)
had knowledge of the transactions contemplated hereby, (2) has or shares
discretion relating to such Investor’s investments or trading or information
concerning such Investor’s investments, including in respect of the Securities,
or (3) is subject to such Investor’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading Affiliates”)
has, directly or indirectly, effected or agreed to effect any short sale,
whether or not against the box, established any “put equivalent position” (as
defined in Rule 16a-1(h) under the 0000 Xxx) with respect to the Common Stock,
granted any other right (including, without limitation, any put or call option)
with respect to the Common Stock or with respect to any security that includes,
relates to or derived any significant part of its value from the Common Stock or
otherwise sought to hedge its position in the Securities (each, a “Prohibited
Transaction”). Prior to repayment of the Notes, such Investor
shall not, and shall cause its Trading Affiliates to not, engage, directly or
indirectly, in a Prohibited Transaction. Such Investor acknowledges
that the representations, warranties and covenants contained in this Section
5.11 are being made for the benefit of the Investors as well as the Company and
that each of the other Investors shall have an independent right to assert any
claims against such Investor arising out of any breach or violation of the
provisions of this Section 5.11.
5.12 Reliance on
Exemptions. Such Investor understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and such Investor’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of such Investor to acquire
the Securities.
6. Conditions to
Closing.
6.1 Conditions to the Investors’
Obligations. The obligation of each Investor to purchase its pro rata
share of the Notes and the Shares at the Closing is subject to the fulfillment
to Xxxx X. XxXxx’x satisfaction, on or prior to the Closing Date, of the
following conditions, any of which may be waived by such Investor in its sole
discretion (as to itself only):
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(a) The
representations and warranties made by the Company in Section 4 hereof qualified
as to materiality shall be true and correct at all times prior to and on the
Closing Date, except to the extent any such representation or warranty expressly
speaks as of a specific date, in which case such representation or warranty
shall be true and correct as of such date, and, the representations and
warranties made by the Company in Section 4 hereof not qualified as to
materiality shall be true and correct in all material respects at all times
prior to and on the Closing Date, except to the extent any such representation
or warranty expressly speaks as of a specific date, in which case such
representation or warranty shall be true and correct in all material respects as
of such specific date.
(b) The
Company shall have performed in all material respects all obligations and
covenants herein required to be performed by it on or prior to the Closing
Date.
(c) The
Company shall have obtained any and all consents, permits, approvals,
registrations and waivers necessary or appropriate
for consummation of the purchase and sale of the Notes and the Shares and the
consummation of the other transactions contemplated by the Transaction Documents
to be consummated on or prior to the Closing Date, all of which shall be in full
force and effect.
(d) The
Company shall have executed and delivered the Notes.
(e) No
judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order of
or by any governmental authority, shall have been issued, and no action or
proceeding shall have been instituted by any governmental authority, enjoining
or preventing the consummation of the transactions contemplated hereby or in the
other Transaction Documents.
(f) The
Company shall have delivered a Certificate, executed on behalf of the Company by
its Chief Executive Officer or its Chief Financial Officer, dated as of the
Closing Date, certifying to the fulfillment of the conditions specified in
subsections (a), (b) and (c) of this Section 6.1.
(g) The
Company shall have delivered a Certificate, executed on behalf of the Company by
its Secretary, dated as of the Closing Date, certifying the resolutions adopted
by the Board of Directors of the Company approving the transactions contemplated
by this Agreement and the other Transaction Documents and the issuance of the
Securities, certifying the current versions of the Articles of Incorporation, as
amended, and Bylaws of the Company and certifying as to the signatures and
authority of persons signing the Transaction Documents and related documents on
behalf of the Company and certifying that the Securities have been duly and
validly issued and are fully paid and non-assessable.
(h) No
stop order or suspension of trading shall have been imposed by the SEC or any
other governmental or regulatory body with respect to public trading in the
Common Stock.
(i) The
Company shall have issued not more than $1,500,000 in the aggregate principal
amount of the Notes.
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(j) The
Transaction Documents, in form and substance satisfactory to the Investors,
shall have been executed and delivered by the parties thereto.
6.2 Conditions to Obligations of
the Company. The Company’s obligation to sell and issue the Notes and the
Shares at the Closing is subject to the fulfillment to the satisfaction of the
Company on or prior to the Closing Date of the following conditions, any of
which may be waived by the Company:
(a) The
representations and warranties made by the Investors in Section 5 hereof, other
than the representations and warranties contained in Sections 5.3, 5.4, 5.5,
5.6, 5.7, and 5.8 (the “Investment
Representations”), shall be true and correct in all material respects
when made, and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date. The Investment Representations shall be true and correct in all
respects when made, and shall be true and correct in all respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date. The Investors shall have performed in all material respects all
obligations and covenants herein required to be performed by them on or prior to
the Closing Date.
(b) No
judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order of
or by any governmental authority, shall have been issued, and no action or
proceeding shall have been instituted by any governmental authority, enjoining
or preventing the consummation of the transactions contemplated hereby or in the
other Transaction Documents.
(c) The
Company shall have received the aggregate purchase price for the Notes, net of
the prepayment of interest.
(d) The
Transaction Documents, in form and substance satisfactory to the Investors,
shall have been executed and delivered by the parties thereto.
6.3 Termination of Obligations
to Effect Closing; Effects.
(a) The
outstanding obligations of the Company, on the one hand, and the Investors, on
the other hand, to effect the Closing shall terminate as follows:
(i) Upon
the mutual written consent of the Company and
Xxxx XxXxx;
(ii) By
the Company if any of the conditions set forth in Section 6.2 shall have become
incapable of fulfillment, and shall not have been waived by the Company;
or
(iii) By
an Investor if any of the conditions set forth in Section 6.1 shall have become
incapable of fulfillment, and shall not have been waived by the
Investor;
provided, however, that, except
in the case of clause (i) above, the party seeking to terminate its obligation
to effect the Closing shall not then be in breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or the other
Transaction Documents if such breach has resulted in the circumstances giving
rise to such party’s seeking to terminate its obligation to effect the
Closing.
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(b) In
the event of termination by any Investor of its obligations to effect the
Closing pursuant to this Section 6.3, written notice thereof shall forthwith be
given to the other Investors and the other Investors shall have the right to
terminate their obligations to effect such Closing upon written notice to the
Company and the other Investors. Nothing in this Section 6.3 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement or the other Transaction Documents or
to impair the right of any party to compel specific performance by any other
party of its obligations under this Agreement or the other Transaction
Documents.
(c) The
indemnities set forth in Section 8.2 of this Agreement shall survive the
termination of this Agreement.
7. Covenants
and Agreements of the Company.
7.1 Reports. For
such time as the Investors hold any of the Securities, the Company will furnish
to the Investors and/or their assignees such information relating to the Company
and its Subsidiaries as from time to time may reasonably be requested by the
Investors and/or their assignees; provided, however, that the Company shall not
disclose material nonpublic information to the Investors, or to advisors to or
representatives of the Investors, unless prior to disclosure of such information
the Company identifies such information as being material nonpublic information
and provides the Investors, such advisors and representatives with the
opportunity to accept or refuse to accept such material nonpublic information
for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect
thereto.
7.2 Insurance. For
such time as an Investor holds any of the Securities, the Company shall not
materially reduce the insurance coverages described in Section
4.18.
7.3 Compliance with
Laws. For such time as an Investor holds any of the
Securities, the Company will comply in all material respects with all applicable
laws, rules, regulations, orders and decrees of all governmental
authorities.
7.4 Listing of Underlying Shares
and Related Matters. If the Company applies to have its Common
Stock or other securities traded on any stock exchange or market, it shall
include in such application the Shares and will take such other action as is
necessary to cause such Common Stock to be so listed. Thereafter, the
Company will use commercially reasonable efforts to continue the listing and
trading of its Common Stock on such exchange or market and, in accordance,
therewith, will use commercially reasonable efforts to comply in all respects
with the Company’s reporting, filing and other obligations under the bylaws or
rules of such exchange or market, as applicable.
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8. Survival and
Indemnification.
8.1 Survival. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing of the transactions contemplated by this
Agreement.
8.2 Indemnification. The
Company agrees to indemnify and hold harmless each Investor and its Affiliates
and their respective directors, officers, employees and agents from and against
any and all losses, claims, damages, liabilities and expenses (including without
limitation reasonable attorney fees and disbursements and other expenses
incurred in connection with investigating, preparing or defending any action,
claim or proceeding, pending or threatened and the costs of enforcement thereof)
(collectively, “Losses”) to which
such Person may become subject as a result of any breach of representation,
warranty, covenant or agreement made by or to be performed on the part of the
Company under the Transaction Documents, and will reimburse any such Person for
all such amounts as they are incurred by such Person.
8.3 Conduct of Indemnification
Proceedings. Promptly
after receipt by any Person (the “Indemnified Person”)
of notice of any demand, claim or circumstances which would or might give rise
to a claim or the commencement of any action, proceeding or investigation in
respect of which indemnity may be sought pursuant to Section 8.2, such
Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person, and shall assume the payment of all
fees and expenses; provided, however, that the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of its
obligations hereunder except to the extent that the Company is materially
prejudiced by such failure to notify. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company and the Indemnified Person shall have mutually agreed to
the retention of such counsel; or (ii) in the reasonable judgment of counsel to
such Indemnified Person representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Company shall indemnify and hold harmless such
Indemnified Person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior
written consent of the Indemnified Person, which consent shall not be
unreasonably withheld, the Company shall not effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional release
of such Indemnified Person from all liability arising out of such
proceeding.
9. Dispute
Resolution.
9.1 Dispute
Resolution.
(a) Any
controversy or claim that arises out of or relating to any Transaction Document,
or the breach thereof, shall be finally settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules, and judgment on any award rendered by the arbitrator may be
entered by any court having jurisdiction thereof.
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(b) Any
arbitration conducted pursuant to this Section 9 shall be conducted before a
single neutral arbitrator who shall be a member of the Bar of the State of
Delaware actively engaged in the practice of law for at least ten years and
experienced in the area of corporate law.
(c) The
place of arbitration shall be Wilmington, Delaware.
(d) Any
arbitration conducted pursuant to this Section 9 shall be conducted under the
laws of the State of Delaware. The parties acknowledge that the
Transaction Documents evidence a transaction involving interstate
commerce. The Federal Arbitration Act and the Commercial Arbitration
Rules of the American Arbitration Association shall govern the interpretation,
enforcement, and proceedings pursuant to the arbitration clause in this Section
9.
(e) If
more than one arbitration is at any time pending under this Section 9 and any
party contends that two or more arbitrations are substantially related and that
the issue should be heard in one proceeding, the arbitrator selected in the
first-filed of such proceedings shall determine whether, in the interests of
justice and efficiency, the proceedings should be consolidated before that
arbitrator.
(f) Consistent
with the expedited nature of arbitration, each party will, upon the written
request of any other party, promptly provide such other party with copies of
documents relevant to the issues raised by any claim or
counterclaim. Any dispute regarding discovery, or the relevance or
scope thereof, shall be determined by the arbitrator in such arbitration, which
determination shall be conclusive. All discovery shall be completed
within 45 days following the appointment of the arbitrator.
(g) The
award in any arbitration commenced under this Section 9 shall be made within
nine (9) months of the filing of the related demand for arbitration, and the
arbitrator in such arbitration shall agree to comply with such schedule before
accepting appointment, provided that such time limit may be extended by
agreement of the parties or by the arbitrator if the arbitrator determines that
the same is necessary.
(h) No
arbitrator appointed pursuant to this Section 9 shall have any authority to
award punitive or other damages not measured by the prevailing party’s actual
damages, except as may be required by statute.
(i) The
arbitrator in any arbitration pursuant to this Section 9 shall award to the
prevailing party, if any as determined by the arbitrator, all of its costs and
fees. For such purposes, “costs and fees” shall mean all reasonable
pre-award expenses of the arbitration and the mediation, if any, including the
arbitrator’s fees, the mediator’s fees, administrative fees, travel expenses,
out-of-pocket expenses such as copying and telephone, court costs, witness fees,
reasonable attorney’s fees and all other costs reasonably incurred by the
prevailing party in enforcing its rights under any Transaction
Document.
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(j) The
finding of the arbitrator in any arbitration under this Section 9 will be final
and binding. Judgment on any award rendered by the arbitrator may be entered in
any court having jurisdiction thereover; provided, that any award of specific
performance shall (a) be documented in a detailed written opinion containing
findings of fact and law, and (b) be subject to review by any court to which
such award is submitted for entry to the same extent that a similar award by the
Delaware Court of Chancery would be subject to review by the Delaware Supreme
Court.
10. Miscellaneous.
10.1 Confidentiality.
(a) All
Confidential Information furnished by the Company or its Representatives (as
defined below), whether furnished before or after the date hereof, and
regardless of the manner in which it is furnished, is referred to in this
Agreement as “Proprietary
Information.” Proprietary Information does not include,
however, information which (a) is or becomes generally available to the public
other than as a result of a disclosure by an Investor or its Representatives,
(b) was available to an Investor on a nonconfidential basis prior to its
disclosure to an Investor by the Company or its Representatives, or
(c) becomes available to an Investor on a nonconfidential basis from a
person, other than the Company or any of its Representatives, who is not bound
by a confidentiality agreement with or other contractual, legal or fiduciary
obligation to the Company. As used in this Agreement, the term “Representative”
means, as to any person, such person's affiliates and its and their directors,
officers, employees, agents, advisors (including, without limitation, financial
advisors, counsel and accountants) and controlling persons. As used
in this letter agreement, the term "person" shall be broadly interpreted to
include, without limitation, any corporation, company, partnership, other entity
or individual.
(b) Each
Investor shall keep strictly confidential all Proprietary Information and will
not, without express written authorization signed by an authorized officer of
the Company, use, sell, market or disclose any Confidential Information to any
person for any purpose. Each Investor shall be responsible for any
breach of this Agreement by any of its Representatives and shall, at its sole
expense, take all reasonable measures (including but not limited to court
proceedings) to restrain its Representatives from prohibited or unauthorized
disclosure of use of the Proprietary Information. Each Investor shall
immediately notify the Company of any unauthorized disclosure and, without
affecting the Company’s rights as a result thereof, take all steps necessary to
prevent further disclosure.
(c) In
the event that an Investor is required by, law, regulation, legal process or
regulatory authority to disclose any Proprietary Information or any other
information concerning the Company, such Investor shall provide the Company with
prompt written notice of such request or requirement (to the extent not
prohibited by law or legal process) in order to enable the Company to seek an
appropriate protective order or other remedy, to not object to the Company's
taking steps (at its sole expense) to resist or narrow the scope of such request
or legal process, or to waive compliance, in whole or in part, with the terms of
this Agreement. If, in the absence of a protective order or other
remedy or waiver of the terms of this letter agreement, an Investor determines
upon the opinion of its legal counsel that such Investor or any Representative
is required by, law, regulation, legal process or regulatory authority to
disclose any Proprietary Information or other information concerning the
Company, such Investor or such Representative may disclose only such Proprietary
Information or other information as must be disclosed by law, regulation, legal
process or regulatory authority and shall exercise reasonable efforts to obtain
assurances that such Proprietary Information or other information will be
accorded confidential treatment.
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10.2 Successors and
Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investors, as
applicable, provided, however, that an Investor may assign its rights and
delegate its duties hereunder in whole or in part to an Affiliate or to a third
party acquiring some or all of its Securities in a private transaction without
the prior written consent of the Company or the other Investors, after notice
duly given by such Investor to the Company provided, that no such assignment or
obligation shall affect the obligations of such Investor
hereunder. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
10.3 Counterparts;
Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
10.4 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
10.5 Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, (iv) if given by an
internationally recognized overnight air courier, then such notice shall be
deemed given one Business Day after delivery to such carrier and (v) if given by
electronic mail, then upon transmission thereof. All notices shall be
addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days’ advance written notice to
the other party:
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If
to the Company:
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0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxx
Xxxxx, XX 00000
|
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Attn: Xxxxxxx
Xxxxxxx, Chief Financial Officer
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Fax: (000)
000-0000
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With
a copy to:
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Blank
Rome LLP
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000
Xxxxxxxxx Xxx.
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Xxx
Xxxx, XX 00000
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Attn:
Xxxxxx X. Xxxxxxxx, Esq.
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Fax:
(000) 000-0000
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If
to the Investors:
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To
the addresses set forth on the signature pages hereto
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With
a copy to:
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10.6 Expenses. The
parties hereto shall pay their own costs and expenses in connection
herewith. In the event that legal proceedings are commenced by any
party to this Agreement against another party to this Agreement in connection
with this Agreement or the other Transaction Documents, the party or parties
which do not prevail in such proceedings shall severally, but not jointly, pay
their pro rata share of the reasonable attorneys’ fees and other reasonable
out-of-pocket costs and expenses incurred by the prevailing party in such
proceedings.
10.7 Amendments and
Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investors. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Securities purchased under this Agreement at the time outstanding,
each future holder of all such Securities, and the
Company. Notwithstanding the foregoing, no consideration shall be
offered or paid by the Company to any Investor to amend or consent to a waiver
or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the holders of the Notes and/or
Shares.
10.8 Publicity. No
public release or announcement concerning the transactions contemplated hereby
shall be issued by the Company or the Investors without the prior consent of the
Company (in the case of a release or announcement by the Investors) or the
Investors (in the case of a release or announcement by the Company) (which
consents shall not be unreasonably withheld), except as such release or
announcement may be required by law or the applicable rules or regulations of
any securities exchange or securities market, in which case the Company or the
Investors, as the case may be, shall allow the Investors or the Company, as
applicable, to the extent reasonably practicable in the circumstances,
reasonable time to comment on such release or announcement in advance of such
issuance.
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10.9 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision of
law which renders any provision hereof prohibited or unenforceable in any
respect.
10.10 Entire
Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Transaction Documents constitute the entire
agreement among the parties hereof with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
10.11 Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
10.12 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware without regard to
the choice of law principles thereof.
10.13 Independent Nature of
Investors’ Obligations and Rights. The obligations of each Investor under any
Transaction Document are several and not joint with the obligations of any other
Investor, and no Investor shall be responsible in any way for the performance of
the obligations of any other Investor under any Transaction
Document. The decision of each Investor to purchase Securities
pursuant to the Transaction Documents has been made by such Investor
independently of any other Investor. Nothing contained herein or in
any Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction
Documents. Each Investor acknowledges that no other Investor has
acted as agent for such Investor in connection with making its investment
hereunder and that no Investor will be acting as agent of such Investor in
connection with monitoring its investment in the Securities or enforcing its
rights under the Transaction Documents. Each Investor shall be
entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Investor to
be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that each of the Investors has been
provided with the same Transaction Documents for the purpose of closing a
transaction with multiple Investors and not because it was required or requested
to do so by any Investor.
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[The
remainder of this page is left blank intentionally. Signature pages
follow.]
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IN WITNESS WHEREOF, the
parties have executed this Agreement or caused their duly authorized officers to
execute this Agreement as of the date first above written.
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
Xxxxxxx Xxxxxxx
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Title:
Chief Financial Officer
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COUNTERPART
SIGNATURE PAGE
By signing below, the undersigned
agrees to the terms of the Securities Purchase Agreement and to purchase the
Note and Shares set forth below.
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INVESTOR:
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Principal
amount of Note being purchased:
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_____________________________________ | ||
| __________________________________ | |||
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Shares:
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By:
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_________________________________
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| __________________________________ | Name: | ||
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Title:
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Address:
_________________________
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Loan
Amount:
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_______________________ | ||
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Facsimile:_________________________
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| __________________________________ |
with
a copy
to:
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| Please complete the following: | |||
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1.
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The
exact name that your Note and Shares are to be registered in (this is the
name that will appear on your Note and Share certificates). You may use a
nominee name if appropriate:
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_____________________________ | |
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2.
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The
relationship between the Investors and the Registered Holder listed in
response to item 1 above:
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_____________________________ | |
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3.
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The
mailing address and facsimile number of the Registered Holder listed in
response to item 1 above (if different from above):
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_____________________________
_____________________________
Facsimile:______________________
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|
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4.
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(For United States
Investors:) The Social Security Number or Tax
Identification Number of the Registered Holder listed in the response to
item 1 above:
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_____________________________ | |
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