SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of September
__, 1997 by and among Infinite Machines Corp., a Delaware corporation, with
headquarters located at 000 Xxxxx Xxxxxx Xxxx., Xxxxxxx, XX, 00000 (the
"Company"), and the undersigned (the "Buyer").
WHEREAS:
A. The Company and the Buyer are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by Sections
4(2) and 4(6) under the Securities Act of 1933, as amended (the "1933 Act")
and/or Rule 506 promulgated under Regulation D ("Regulation D") by the United
States Securities and Exchange Commission (the "SEC");
B. The Buyer wishes to purchase, in the amounts and upon the terms and
conditions stated in this Agreement, shares of the Company's common stock, par
value $.001 per share ("IMCI Common Stock"), and receive an assignment of the
Company's right to purchase shares of Spectra Science Corporation. ("Spectra")
Series B Convertible Preferred Stock ("Spectra Preferred Stock") and warrants
for the purchase of shares of Spectra Common Stock; and
C. Contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
(the "Registration Rights Agreement") pursuant to which the Company has agreed
to provide certain registration rights under the 1933 Act and the rules and
regulations promulgated thereunder, and applicable state securities laws.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF IMCI COMMON STOCK, SPECTRA PREFERRED STOCK AND THE
WARRANTS.
a. Purchase of IMCI Common Stock. The Company shall issue and sell to the
Buyer and the Buyer shall purchase 1,923,077 shares of IMCI Common Stock for an
aggregate purchase price of $1,900,000.
b. Assignment and Purchase of Spectra Preferred Stock. For ten ($10)
dollars, the Company shall sell and assign to the Buyer and the Buyer shall
purchase the Company's entire subscription interest to purchase 763,498 shares
of Spectra Preferred Stock with an aggregate purchase price of $1,145,247.
c. Assignment and Purchase of Warrants. For ten ($10) dollars the Company
shall sell and assign to the Buyer and the Buyer shall purchase the Company's
entire right to receive warrants for the purchase of 190,874 shares of Spectra
Common Stock with an exercise price of $4.00 per share (the "Warrants") for a
purchase price of zero dollars.
d. Form of Payment. The Buyer shall pay the purchase price for the shares
of IMCI Common Stock and the shares of Spectra Preferred Stock (the "Purchase
Price") by wire transfer of immediately available United States Dollars to the
Company on the Closing Date (as defined below). The Company shall promptly
deliver a stock certificate, duly executed on behalf of the Company,
representing 1,923,077 shares of IMCI Common Stock (the "IMCI Stock
Certificate"). The Company shall make all reasonable efforts to cause Spectra to
promptly deliver (i) a stock certificate representing 763,498 shares of Spectra
Preferred Stock, duly executed on behalf of Spectra (the "Spectra Stock
Certificate") and (ii) a warrant certificate representing the Warrants, duly
executed on behalf of Spectra (the "Warrant Certificate").
e. Closing Date. The date and time of the issuance and sale of the shares
of IMCI Common Stock, and the sale of the shares of Spectra Preferred Stock and
the Warrants shall be 5:00 p.m. Eastern Standard Time on September 18, 1997 (the
"Closing Date").
2. BUYER'S REPRESENTATIONS AND WARRANTIES
The Buyer represents and warrants to the Company that:
a. Non-Distribution. The Buyer is purchasing the shares of IMCI Common
Stock for its own account and not with a view towards, or for resale in
connection with, the public sale or distribution thereof except pursuant to
sales registered under the 0000 Xxx.
b. Accredited Investor Status. The Buyer is an "accredited investor" as
that term is defined in Rule 501(a)(3) of Regulation D.
c. Reliance on Exemptions. The Buyer understands that the IMCI Common
Stock, the assignment of its right to purchase shares of Spectra Preferred Stock
and its right to receive Warrants (collectively, unless the context otherwise
requires, together with the Spectra Preferred Stock and the Warrants, the
"Securities") are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state
securities laws and that the Company is relying upon the truth and accuracy of,
and the Buyer's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Buyer set forth herein in order to
determine the availability of such exemptions and the eligibility of the Buyer
to acquire the Securities.
d. Information. The Buyer and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and Spectra and
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materials relating to the offer and sale of the Securities which have been
requested by the Buyer. The Buyer and its advisors, if any, have been afforded
the opportunity to ask questions of the Company and have received complete and
satisfactory answers to any such inquiries. The Buyer understands that its
investment in the Securities involves a high degree of risk. The Buyer has
sought such accounting, legal and tax advice as it has considered necessary to
an informed investment decision with respect to its acquisition of the
Securities.
e. Governmental Review. The Buyer understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Securities or the
fairness or suitability of the investment in the Securities, nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
f. Transfer or Resale. The Buyer understands that (i) except as provided
in the Registration Rights Agreement and the Amended and Restated Registration
Rights Agreement of Spectra, the Securities, the shares of Spectra Common Stock
receivable by the Buyer upon exercise of the Warrants (the "Exercise Shares"),
and the Damage Shares (as that term is defined in the Registration Rights
Agreement) have not been and are not being registered under the 1933 Act or any
state securities laws, and may not be transferred unless (a) subsequently
registered thereunder, or (b) the Buyer shall have delivered to the Company an
opinion of counsel, reasonably satisfactory in form, scope and substance to the
Company, to the effect that the securities to be sold or transferred may be sold
or transferred pursuant to an exemption from such registration; (ii) any sale of
such securities made in reliance on Rule 144 promulgated under the 1933 Act may
be made only in accordance with the terms of said Rule and further, if said Rule
is not applicable, any resale of such securities under circumstances in which
the seller (or the person through whom the sale is made) may be deemed to be an
underwriter (as that term is defined in the 0000 Xxx) may require compliance
with some other exemption under the 1933 Act or the rules and regulations of the
SEC thereunder; and (iii) neither the Company nor any other person is under any
obligation to register such securities (other than pursuant to the Registration
Rights Agreement and the Amended and Restated Registration Rights Agreement of
Spectra) under the 1933 Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder.
g. Legends. The Buyer understands that unless, and until such time as the
Securities, the Exercise Shares and the Damage Shares have been registered under
the 1933 Act as contemplated by the Registration Rights Agreement, the
certificates representing such securities shall bear a restrictive legend in
substantially the following form (and a stop-transfer order may be placed
against transfer of such certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
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SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS, OR AN
OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
ACCEPTABLE TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR APPLICABLE STATE SECURITIES LAWS. ANY SUCH SALE,
ASSIGNMENT OR TRANSFER MUST ALSO COMPLY WITH OR BE EXEMPT FROM
APPLICABLE STATE SECURITIES LAWS.
The legend set forth above as it appears on the IMCI Stock Certificate and on
any certificate representing the Damage Shares shall be removed and the Company
shall issue a certificate without such legend to the holder of such shares of
IMCI Common Stock or the Damage Shares upon which it is stamped, if, unless
otherwise required by federal or state securities laws, (a) the sale of such
shares of IMCI Common Stock or the Damage Shares is registered under the 1933
Act, or (b) in connection with a sale transaction, such holder provides the
Company with an opinion of counsel, in form, substance and scope reasonably
acceptable to the Company, to the effect that a public sale or transfer of the
shares of IMCI Common Stock or the Damage Shares may be made without
registration under the 1933 Act, or (c) such holder provides the Company with
reasonable assurances that the shares of IMCI Common Stock or Damage Shares can
be sold pursuant to Rule 144 under the 1933 Act (or a successor rule thereto)
without any restriction as to the number of securities acquired as of a
particular date that can then be immediately sold.
h. Authorization; Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Buyer and is a valid and
binding agreement of the Buyer enforceable in accordance with its terms, subject
as to enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the enforcement of
creditors' rights generally.
i. Residency. The Buyer is a resident of that country specified in its
address on the signature page hereof.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Buyer that:
a. Organization and Qualification. The Company and each of its
subsidiaries are corporations duly organized and existing in good standing under
the laws of the jurisdiction in which they are incorporated, except, in the case
of any such subsidiaries, as would not have a Material Adverse Effect (as
defined below), and have the requisite corporate power to own
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their properties and to carry on their business as now being conducted. The
Company and each of its subsidiaries are duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the nature
of the business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. "Material Adverse
Effect" means any material adverse effect on the operations, properties or
financial condition of the Company and its subsidiaries taken as a whole.
b. Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform this Agreement and the
Registration Rights Agreement, and to issue the aforementioned shares of IMCI
Common Stock and the Damage Shares in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company, its Board of Directors, or its stockholders is
required, (iii) this Agreement and the Registration Rights Agreement have been
duly executed and delivered by the Company, and (iv) this Agreement and the
Registration Rights Agreement constitute the valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
c. Capitalization. As of August 6, 1997, the authorized capital stock of
the Company consists of (i) 20,000,000 shares of Common Stock of which
10,241,121 shares were issued and outstanding, and (ii) 1,000,000 shares of
Series preferred stock, $.01 par value per share ("Preferred Stock") of which no
shares were issued and outstanding. All of such outstanding shares have been
validly issued and are fully paid and nonassessable. No shares of IMCI Common
Stock or Preferred Stock are subject to preemptive rights or any other similar
rights of the stockholders of the Company. Except as disclosed in Schedule 3(c),
as of the effective date of this Agreement, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
subsidiaries, (ii) there are no outstanding debt securities, and (iii) there are
no agreements or arrangements under which the Company or any of its subsidiaries
is obligated to register the sale of any of its or their securities under the
1933 Act (except the Registration Rights Agreement). The Company has furnished
to the Buyer true and correct copies of the Company's Articles of Incorporation,
as amended, as in effect on the date hereof ("Articles of Incorporation") and
the Company's Bylaws, as in effect on the date hereof (the "Bylaws").
d. Issuance of Securities. The Company has assigned to the Buyer its right
to purchase and receive the aforementioned Spectra Preferred Stock and Warrants
which assignment
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constitutes the Company's entire interest in Spectra Preferred Stock and related
Warrants. The aforementioned shares of IMCI Common Stock are duly authorized,
validly issued and non-assessable, and free from all taxes, liens and charges
with respect to the issue thereof. The Company knows of no reason that the
aforementioned shares of Spectra Preferred Stock, Warrants and Exercise Shares
when issued will not: be duly authorized and, upon issuance in accordance with
the terms thereof, validly issued, fully paid and non-assessable, and free from
all taxes, liens and charges with respect to the issue thereof. The Damage
Shares, if any, will be duly authorized, validly issued, fully paid and
non-assessable, and free from all taxes, liens and changes with respect to the
issue thereof.
e. No Conflicts. The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Articles of
Incorporation or Bylaws or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries is bound
or affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). The business of the Company or its
subsidiaries is not being conducted, and shall not be conducted through the
Registration Period (as defined herein), in violation of any law, ordinance,
regulation of any governmental entity, except for possible violations which
either singly or in the aggregate do not have a Material Adverse Effect. The
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement in accordance with the terms hereof, except as required under the 1933
Act and any applicable state securities laws which have been or shall be duly
made.
f. SEC Documents, Financial Statements. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Securities Exchange Act of
1934, as amended (the "1934 Act") (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents (other than exhibits) incorporated by reference therein,
being hereinafter referred to herein as the "SEC Documents"). As of their
respective
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dates, the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents (as amended)
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company to
the Buyer and referred to in Section 2(d) of this Agreement contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstance under
which they are or were made, not misleading.
g. Absence of Certain Changes. Since June 30, 1997 there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition, results of operations or prospects
of the Company.
h. Absence of Litigation. Except as set forth in its Form 10-Q for the
quarter ended June 30, 1997, there is no action, suit, proceeding, inquiry or
investigation before or by any court, public board or body pending or, to the
knowledge of the Company, threatened against or affecting the Company, wherein
an unfavorable decision, ruling or finding would have a Material Adverse Effect
or which would adversely affect the validity or enforceability of, or the
authority or ability of the Company to perform its obligations under, this
Agreement or any of the documents contemplated herein.
4. COVENANTS.
a. Best Efforts. The parties shall use their best efforts timely to
satisfy each of the conditions described in Sections 6 and 7 of this Agreement.
b. Form D. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to the
Buyer promptly after such filing.
c. Reporting Status. Until the earlier of (i) the date as of which the
Investor (as that term is defined in the Registration Rights Agreement) may sell
all of the aforementioned shares of IMCI Common Stock and the Damage Shares
without restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or
successor thereto), or (ii) the date on which the Investor has sold all the
aforementioned shares of IMCI Common Stock and the Damage Shares (the
"Registration Period"), the Company shall file all reports required to be filed
with the SEC pursuant to the 1934 Act, and the Company shall not terminate its
status as an issuer required
7
to file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would permit such termination.
d. Use of Proceeds. The Company will use the proceeds from the sale of the
Securities for the Company's internal working capital purposes and shall not,
directly or indirectly, use such proceeds for any loan to or investment in any
other corporation, partnership, enterprise or other person except as the
Company's board of directors deems necessary in order to develop and
commercialize the Company's technology.
e. Financial Information. The Company agrees to send the following reports
to the Buyer during the Registration Period: (i) within five (5) days after the
filing thereof with the SEC, a copy of its Annual Report on Form 10-K, its
Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K; and (ii)
within one day after release thereof, copies of all press releases issued by the
Company or any of its subsidiaries.
f. Reservation of Shares. The Company shall at times have authorized, and
reserved for the purpose of issuance, a sufficient number of shares of IMCI
Common Stock and, when required, to provide for the issuance of the Damage
Shares.
g. Listing. The Company shall promptly secure the listing of the
aforementioned shares of IMCI Common Stock and, if and when issued, the Damage
Shares upon each national securities exchange or automated quotation system, if
any, upon which shares of IMCI Common Stock are then listed (subject to official
notice of issuance) and shall maintain, so long as any other shares of IMCI
Common Stock shall be so listed, such listing of all shares of IMCI Common Stock
from time to time issuable under the terms of this Agreement and the
Registration Rights Agreement.
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall instruct its transfer agent to issue certificates,
registered in the name of the Buyer or its nominee, for the Damage Shares, if
any, in such amounts as specified from time to time by the Buyer to the Company.
Prior to registration of the aforementioned shares of IMCI Common Stock and the
Damage Shares pursuant to an effective registration statement, all such
certificates shall bear the restrictive legend specified in Section 2(g) of this
Agreement. The Company shall provide instructions and opinions of counsel to its
transfer agent in accordance with Section 5(l) of the Registration Rights
Agreement. The Company warrants that no instruction other than such instructions
referred to in this Section 5, and stop transfer instructions to give effect to
Section 2(f) hereof, in the case of the shares of IMCI Common Stock and the
Damage Shares, prior to registration of the shares of IMCI Common Stock and the
Damage Shares under the 1933 Act, will be given by the Company to its transfer
agent and that the aforementioned shares of IMCI Common Stock and the Damage
Shares shall otherwise be freely transferable on the books and records of the
Company as and to the extent provided in this Agreement and the Registration
Rights Agreement. Nothing in this Section
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shall affect in any way the Buyer's obligations and agreement to comply with all
applicable securities laws upon resale of the Registrable Securities. If the
Buyer provides the Company with an opinion of counsel, reasonably satisfactory
in form, scope and substance to the Company, that registration of a resale by
the Buyer of any of the shares of IMCI Common Stock and the Damage Shares is not
required under the 1933 Act, the Company shall permit the transfer, and promptly
instruct its transfer agent to issue one or more certificates in such name and
in such denominations as specified by the Buyer.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL AND ASSIGN.
The obligation of the Company hereunder to sell and assign IMCI Common
Stock, the Company's right to purchase shares Spectra Preferred Stock and its
right to receive Warrants, is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion:
a. The parties shall have executed this Agreement and the Registration
Rights Agreement, the Assignment (described in Section 7(d) below) and delivered
the same to each other.
b. The Buyer shall have delivered the Purchase Price to the Company by
wire transfer of immediately available funds pursuant to the wiring instructions
provided by the Company.
c. The representations and warranties of each Buyer shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations. and warranties
that speak as of a specific date), and the Buyer shall have performed, satisfied
and complied in all material respects with the covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Buyer at or prior to the Closing Date.
7. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer to purchase the Securities is subject to the
satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for the Buyer's sole benefit and
may be waived by the Buyer at any time in its sole discretion:
a. The parties shall have executed this Agreement and the Registration
Rights Agreement, and delivered the same to each other.
b. Until the Closing Date, the IMCI Common Stock shall be authorized for
quotation on the Small Cap Market of the National Association of Securities
Dealers Automated Quotation ("NASDAQ") System ("NASDAQ SmallCap") and trading in
the Common Stock on NASDAQ SmallCap shall not have been suspended by the SEC or
NASDAQ.
9
c. The representations and warranties of the Company shall be true and
correct in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and warranties that
speak as of a specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Date. The Buyer shall have received a
certificate, executed by the Chief Executive Officer of the Company, dated as of
the Closing Date, to the foregoing effect and as to such other matters as may be
reasonably requested by the Buyer.
d. The parties shall have executed and delivered the Assignment in form,
scope and substance reasonably satisfactory to the Buyer.
e. The Company shall have executed and delivered the IMCI Stock
Certificate.
f. Spectra shall have executed and delivered the Spectra Certificate and
the Warrants to the Buyer (which, although a condition to the completion of this
transaction, shall be delivered within 3 days of the execution of this
Agreement).
8. GOVERNING LAW: MISCELLANEOUS.
a. 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.
b. Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. In the event any signature page is delivered by
facsimile transmission, the party using such means of delivery shall cause four
(4) additional original executed signature pages to be physically delivered to
the other party within five (5) days of the execution and delivery hereof.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement: Amendments. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein
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and therein and, except as specifically set forth herein or therein, neither the
Company nor any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be
waived or amended other than by an instrument in writing signed by the party to
be charged with enforcement.
f. Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by mail or delivered personally or by courier
and shall be effective five days after being placed in the mail, if mailed,
certified or registered, return receipt requested, or upon receipt, if delivered
personally or by courier or by telefacsimile, in each case addressed to a party.
The addresses for such communications shall be:
If to the Company:
000 Xxxxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy:
Attention: Xxxxxxxx X. Xxxxxxxxx
With copy to:
Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
If to the Buyer, at the addresses on the signature page.
With copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Each party shall provide notice to the other party of any change in address.
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g. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. Neither the
Company nor the Buyer shall assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other (which consent may be
withheld for any reason in the sole discretion of the party from whom consent is
sought). Notwithstanding the foregoing, a Buyer may assign its rights hereunder
to any of its "affiliates," as that term is defined under the 1934 Act, without
the consent of the Company, provided, however, that any such assignment shall
not release such Buyer of its obligations hereunder unless such obligations are
assumed by such affiliate and the Company has consented to such assignment and
assumption.
h. Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of, nor may any provision hereof be enforced by, any
other person.
i. Survival. The representations and warranties of the Company and the
Buyer contained in Sections 2 and 3 and the agreements and covenants set forth
in Sections 4, 5, 8(g), 8(h), 8(k) and 8(l), and this subsection shall survive
the closing. Each party which constitutes the Buyer shall be responsible only
for its own representations, warranties, agreements and covenants hereunder.
k. Publicity. The Company and the Buyer shall have the right to approve
before issuance any press releases or any other public statements with respect
to the transactions contemplated hereby; provided, however, that the Company
shall be entitled, without the prior approval of the Buyer, to make any press
release with respect to such transactions as is required by applicable law and
regulations (although the Buyer shall be consulted by the Company in connection
with any such press release prior to its release and shall be provided with a
copy thereof).
l. Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
m. Termination. In the event that the closing shall not have occurred on
or before five (5) days from the date hereof, this Agreement shall terminate at
the close of business on such date.
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IN WITNESS WHEREOF, the Buyer and the Company have caused this Securities
Purchase Agreement to be duly executed as of the date first written above.
INFINITE MACHINES CORP.
By:
------------------------
Name:
----------------------
Its:
-----------------------
CLEARWATER FUND IV LLC
By:
------------------------
Name:
----------------------
Its:
-----------------------
Address: c/o Clearwater Funds
000 Xxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
13
