COMMON STOCK PURCHASE AGREEMENT
THIS
COMMON STOCK PURCHASE
AGREEMENT
(this
“Agreement”)
is
made and entered into as of April 2, 2007, between Xxxx Acquisition II Inc.,
a
corporation organized and existing under the laws of the State of Delaware
(the
“Company”),
Xxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxx Xxxxxxx (collectively, the “Initial
Stockholders”)
and
Xxxxxx Capital Master Fund, Ltd. (the “Purchaser”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement, the Company
has
authorized the sale of an aggregate of two million eight hundred fifty thousand
(2,850,000) shares (the “Shares”)
of the
Common Stock, $.0001 par value per share (the “Common
Stock”)
to the
Purchaser representing 95% of the issued and outstanding Common Stock as of
the
Closing (as defined below); and
IN
CONSIDERATION of the mutual covenants contained in this Agreement, the Company,
the Initial Stockholders and the Purchaser agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
1.1 Certain
Definitions.
As used
in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
“Affiliate”
means,
with respect to any Person, any Person that, directly or indirectly, controls,
is controlled by or is under common control with such Person. For the purposes
of this definition, “control”
(including, with correlative meanings, the terms “controlled
by”
and
“under
common control with”)
shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
“Agreement”
shall
have the meaning set forth in the introductory paragraph of this
Agreement.
“Closing”
shall
have the meaning set forth in Section
2.2.
“Closing
Date”
shall
have the meaning set forth in Section
2.2.
“Common
Stock”
means
shares now or hereafter authorized of the class of common stock, $.0001 par
value, of the Company and stock of any other class into which such shares may
hereafter have been reclassified or changed.
“Company”
shall
have the meaning set forth in the introductory paragraph.
“Execution
Date”
means
the date of this Agreement first written above.
“Person”
means
an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or political subdivision thereof) or
other entity of any kind.
“Purchase
Price”
shall
have the meaning set forth in Section
2.1(b).
“Purchaser”
shall
have the meaning set forth in the introductory paragraph.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
shall
have the meaning set forth in the recitals.
“Transaction
Documents”
means
this Agreement and all exhibits and schedules hereto and all other documents,
instruments and writings required pursuant to this Agreement.
ARTICLE
II
PURCHASE
AND SALE OF COMMON
SHARES
2.1 Purchase
and Sale; Purchase Price.
(a)
Subject
to the terms and conditions set forth herein, at the Closing the Company agrees
to sell to Purchaser and Purchaser agrees to purchase from the Company the
Shares for an aggregate purchase price of thirty thousand ($37,500) dollars
(the
“Purchase
Price”)
according to the terms set forth in Section 2.2 below; and
2.2 The
Closing.
The
Closing of the purchase and sale of the Shares (the “Closing”)
shall
take place simultaneously with the execution and delivery of this Agreement
(the
“Closing
Date”).
At
any time and from time to time after the Closing, the Parties shall duly
execute, acknowledge and deliver all such further assignments, conveyances,
instruments and documents, and shall take such other action consistent with
the
terms of this Agreement to carry out the transactions contemplated by this
Agreement.
2.3 Delivery
at Closing.
At the
Closing, subject to the terms and conditions hereof, the Seller will deliver
to
Purchaser certificates representing the Shares to be purchased at the Closing
by
Purchaser, against payment of the Purchase Price by wire transfer at the time
of
Closing.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Initial Stockholders.
The
Initial Stockholders hereby represent and warrant to the Purchaser as of the
Closing Date that:
(a) Organization
and Qualification.
The
Company is a corporation, duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with the requisite corporate
power and authority to own and use its properties and assets and to carry on
its
business as currently conducted.
2
(b) Authorization,
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated hereby and by each other Transaction
Document and to otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each of the other Transaction
Documents by the Company and the Initial Stockholders and the consummation
by it
of the transactions contemplated hereby and thereby has been duly authorized
by
all necessary action on the part of the Company and the Initial Stockholders.
Each of this Agreement and each of the other Transaction Documents has been
or
will be duly executed by the Company and the Initial Stockholders and when
delivered in accordance with the terms hereof or thereof will constitute the
valid and binding obligation of the Company and the Initial Stockholders
enforceable against the Company and the Initial Stockholders in accordance
with
its 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) Issuance
of Securities.
The
Shares have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued and delivered as provided hereunder
against payment in accordance with the terms hereof, shall be valid and binding
obligations of the Company enforceable in accordance with their respective
terms. When issued in accordance with the terms hereof, the Shares will be
duly
authorized, validly issued, fully paid and non-assessable.
(d) Capitalization.
The
Company is authorized by its Certificate of Incorporation to issue an aggregate
of 85,000,000 shares of capital stock, of which 75,000,000 are shares of the
Common Stock, par value $.0001 per share and 10,000,000 are shares of the
Preferred Stock, par value $.0001 per share. As of the Closing Date, 3,000,000
shares of Common Stock will be issued and outstanding, and there will be four
(4) stockholders of record holding the Common Stock. All of the issued and
outstanding shares of capital stock of the Company have been duly authorized
and
validly issued and are fully paid and nonassessable. All of the issued and
outstanding shares of capital stock of the Company have been offered, issued
and
sold by the Company in compliance with all applicable federal and state
securities laws. No securities of the Company are entitled to preemptive or
similar rights, and no Person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the transactions
contemplated hereby. Except as a result of the purchase and sale of the Shares,
there are no outstanding options, warrants, script rights to subscribe to,
calls
or commitments of any character whatsoever relating to, or securities, rights
or
obligations convertible into or exchangeable for, or giving any Person any
right
to subscribe for or acquire, any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company is or may
become bound to issue additional shares of Common Stock, or securities or rights
convertible or exchangeable into shares of Common Stock. The issuance and sale
of the Shares will not obligate the Company to issue shares of Common Stock
or
other securities to any Person (other than the Purchaser) and shall not result
in a right of any holder of securities of the Company to adjust the exercise,
conversion, exchange or reset price under such securities. Furthermore, subject
to the satisfaction of the terms and conditions set forth herein, the Shares
shall be duly authorized for issuance, when delivered in accordance with the
terms of this Agreement, and shall be validly issued, fully paid and
non-assessable and the sale thereof shall not be subject to any preemptive
or
other similar right.
3
(e) SEC
Reports; Financial Statements.
The
Company has filed all reports required to be filed by it under the Securities
Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
including pursuant to Section 13(a) or 15(d) thereof, since January 19, 2007
(the foregoing materials being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such
extension. The Company has identified and made available to the Purchaser a
copy
of all filed SEC Reports including the Exchange Act Registration Statement
on
Form 10-SB filed by it on January 19, 2007. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations of the
Securities and Exchange Commission (the “Commission”)
promulgated thereunder, and none of the SEC Reports, when filed, 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. The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time
of
filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position
of
the Company and its consolidated subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, year-end audit
adjustments.
(f) No
Conflicts.
Subject
to the satisfaction of the terms and conditions set forth herein, the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby do not and will not: (i) conflict with or violate any provision of the
Company’s Certificate of Incorporation, By-laws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event
that 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
(with or without notice, lapse of time or both) of any agreement, credit
facility, debt or other instrument (evidencing a Company debt or otherwise)
or
other understanding to which the Company is a party or by which any property
or
asset of the Company is bound or affected or (iii) result in a violation of
any
law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company is subject
(including federal and state securities laws and regulations), or by which
any
property or asset of the Company is bound or affected.
(g) Filings,
Consents and Approvals.
Other
than any applicable Current Report on Form 8-K under the Exchange Act of 1934,
as amended, and the Information Statement contemplated by Section 5.3(b) hereof,
the Company is not required to obtain any consent, waiver, authorization or
order of, give any notice to, or make any filing or registration with, any
court
or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance of this
Agreement.
4
(h) Compliance.
The
Company: (i) is not in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company under), nor has the Company received
notice of a claim that it is in default under or that it is in violation of,
any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound (whether
or
not such default or violation has been waived), (ii) is not in violation of
any
order of any court, arbitrator or governmental body and (iii) is not and has
not
been in violation of any statute, rule or regulation of any governmental
authority.
3.2 Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company and the Initial
Stockholders as follows:
(a) Authority.
The
Purchaser has the requisite power and authority to enter into and to consummate
the transactions contemplated hereby and by the other Transaction Documents
and
otherwise to carry out its obligations hereunder and thereunder. The acquisition
of the Shares to be purchased by the Purchaser hereunder has been duly
authorized by all necessary action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchaser and constitutes the valid
and legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to, or affecting generally the enforcement of, creditors rights and
remedies or by other general principles of equity.
(b) Investment
Intent.
The
Purchaser is acquiring the Shares to be purchased by it hereunder, and will
acquire the Shares for its own account for investment purposes only and not
with
a view to or for distributing or reselling such Shares, or any part thereof
or
interest therein, without prejudice, however, to such Purchaser’s right, subject
to the provisions of this Agreement, at all times to sell or otherwise dispose
of all or any part of such Shares in compliance with applicable federal and
state securities laws.
(c) Experience
of Purchaser.
The
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of an investment in the Shares
to be acquired by it hereunder, and has so evaluated the merits and risks of
such investment.
(d) Ability
of Purchaser to Bear Risk of Investment.
The
Purchaser is able to bear the economic risk of an investment in the Shares
to be
acquired by it hereunder and, at the pre-sent time, is able to afford a complete
loss of such investment.
(e) Access
to Information.
The
Purchaser acknowledges that it has been afforded (i) the opportunity to ask
such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the Shares
offered hereunder and the merits and risks of investing in such securities;
(ii)
access to information about the Company and the Company’s financial condition,
results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment in the Shares; and (iii) the opportunity
to obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed
investment decision with respect to the investment and to verify the accuracy
and completeness of the information that it has received about the
Company.
5
(f) Pro-Rata
Investment.The
Purchaser acknowledges that it will allow the Initial Stockholders an
opportunity to retain their pro rata share of the Company upon any additional
sale of shares by the Company prior to a merger or any other business
combination. Each Selling Stockholder shall exercise, if at all, its right
to
purchase up to his proportionate share by providing written notice to the
Company delivered not later than twenty (20) days after the receipt of the
notice specifying the number of shares such Selling Stockholder wishes to
purchase. If such Selling Stockholder fails to exercise its right to purchase
within such aforesaid 20-day period, such right shall expire. This right does
not apply to (i) a strategic partner of the Company in connection with (A)
joint
venture, manufacturing, marketing or distribution arrangements or (B) technology
transfer or development arrangements, provided that, the purpose of such
issuance is not to raise capital and, provided further, that, such issuance
is
approved by the Board of Directors of the Company, (ii) pursuant to any
equipment loan or leasing arrangement, real property leasing arrangement or
debt
financing from a bank or similar institution approved by the Board of Directors
of the Company, (iii) for consideration other than cash or cash equivalents
pursuant to a merger, consolidation, acquisition or similar transaction approved
by the Board of Directors of the Company, (iv) as a dividend or distribution
payable pro rata to all holders of Common Stock or other securities of the
Company, or (v) in
connection with the conversion or exercise of any Rights or Convertible
Securities outstanding on the date hereof in accordance with the terms thereof
existing on the date hereof
and upon
the conversion of any preferred stock. The respective rights and obligations
of
the parties under this section shall terminate immediately prior to the
consummation of a merger or any other business combination.
(g) Reliance.
The
Purchaser understands and acknowledges that (i) the Shares are being offered
and
sold to it hereunder are being offered and sold without registration under
the
Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act under Section 4(2) of the Securities Act and
(ii) the availability of such exemption depends in part on, and that the Company
will rely upon the accuracy and truthfulness of, the foregoing representations
and such Purchaser hereby consents to such reliance.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Manner
of Offering.
The
Shares are being issued pursuant to section 4(2) of the Securities
Act.
4.2 Blue
Sky Laws.
The
Company and the Initial Stockholders shall cooperate with the Purchaser in
connection with the exemption from registration of the Shares under the
securities or Blue Sky laws of such jurisdictions as the Purchaser may request;
provided,
however,
that
the Company shall not be required in connection therewith to qualify as a
foreign corporation where they are not now so qualified. The Company and the
Initial Stockholders agree that they will execute all necessary documents and
pay all necessary state filing or notice fees to enable the Company and the
Initial Stockholders to sell the Shares to the Purchaser.
6
4.3 Integration.
The
Company and the Initial Stockholders shall not and shall use their best efforts
to ensure that no Affiliate shall sell, offer for sale or solicit offers to
buy
or otherwise negotiate in respect of any security (as defined in Section 2
of
the Securities Act) that would be integrated with the offer or sale of the
Shares in a manner that would require the registration under the Securities
Act
of the sale of the Shares to the Purchaser.
4.4 Resignation
and Appointment of the Company’s Officers and Directors.
Effective as of the Closing Date, or such later date as agreed to between the
Company and its current officers, (i) the Company’s officers shall resign and be
duly replaced by the Purchaser’s designees; and (ii) the Company will cause the
Purchaser’s director designee to be duly appointed.
ARTICLE
V
CONDITIONS
TO CLOSING
5.1 Conditions
to the Obligations of the Purchasers.
The
obligations of the Purchasers under this Agreement are subject to the
fulfillment, or the waiver by the Purchasers, of the conditions set forth in
this Article 5 on or before the Closing Date.
(a) Accuracy
of Representations and Warranties.
Each
representation and warranty of the Company and the Initial Stockholders
contained in this Agreement shall be true and correct on and as of the Closing
Date with the same effect as though such representation and warranty had been
made on and as of that date.
(b) Performance.
The
Company and the Initial Stockholders shall have performed and complied with
all
agreements and conditions contained in this Agreement required to be performed
or complied with by the Company and the Initial Stockholders prior to or at
the
Closing.
(c) Registration
Rights Agreement.
The
Registration Rights Agreement (the “Registration
Rights Agreement”)
among
the Company and the Stockholders named therein dated as of the date hereof
shall
have been executed, delivered and in full force and effect substantially in
the
form attached hereto as Exhibit
A.
(d) Blue
Sky Approvals.
The
Company shall have received all requisite approvals, if any, of the securities
authorities of each jurisdiction in which such approval is required, and such
approvals shall be in full force and effect on the Closing Date.
(e) Resignation
of Officers and Directors.
The
officers and director of the Seller shall have resigned from their positions
as
of the Closing Date.
7
(f) Appointment
of the Purchaser’s Designees.
The
Purchaser’s designees for the officers and director positions of the Company
shall have been duly appointed.
(g) No
Injunction.
There
shall not be in effect, at the Closing Date, any injunction or other binding
order of any court or other tribunal having jurisdiction over the Seller that
prohibits the sale of the Shares to the Purchaser.
(h) No
Liabilities.
The
Company shall have no material liabilities as of the Closing Date, including
accrued or contingent liabilities.
(i) Certificates
and Documents.
The
Company shall have delivered to counsel to the Purchaser:
| a) |
a
copy of the Restated Certificate, as in effect immediately prior
to the
Closing, certified by the Secretary of State of the State of Delaware,
and
a certificate, as of the most recent practicable date, of the Secretary
of
State of the State of Delaware as to the Company’s legal existence and
corporate good standing;
|
| b) |
a
certificate of the Secretary or Assistant Secretary of the Company
dated
as of the Closing Date, certifying as to (i) the incumbency of officers
of
the Company executing the Transaction Documents and all other documents
executed and delivered in connection herewith, (ii) a copy of the
By-Laws
of the Company, as in effect on and as of the Closing Date, and (iii)
a
copy of the resolutions of the Board of Directors of the Company
authorizing and approving the Company’s execution, delivery and
performance of the Transaction Documents, all matters in connection
with
the Transaction Documents, and the transactions contemplated thereby;
and
|
| c) |
a
certificate, executed by the President of the Company as of the Closing
Date, certifying to the fulfillment of all of the conditions to the
Purchasers obligations under this Agreement, as set forth in this
Section
5.
|
5.2 Conditions
of Obligations of the Seller.
The
obligations of the Seller to effect the sale of the Shares are subject to the
following conditions, any or all of which may be waived in whole or in part
by
the Seller:
(a) Representations
and Warranties.
Each of
the representations and warranties of the Purchaser set forth in this Agreement
shall be true and correct in all material respects as of the Closing
Date.
(b) Compliance
Certificate.
An
authorized officer of the Purchaser shall deliver to the Seller at the Closing
a
certificate certifying each of the representations and warranties of such the
Purchaser set forth in this Agreement are true and correct in all material
respects as of the Closing Date as though made on and as of the Closing Date.
8
(c) Performance.
The
Purchaser shall have materially performed and materially complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it or him on or before the
Closing.
(d) No
Injunction.
There
shall not be in effect, at the Closing Date, any injunction or other binding
order of any court or other tribunal having jurisdiction over the Seller that
prohibits the sale of the Shares to the Purchaser.
(e) Payment
of Company Liabilities.
All
Company Liabilities shall have been paid or discharged.
ARTICLE
VI
TERMINATION
6.1 Termination.
This
Agreement may be terminated and the purchase and sale of the Shares may be
abandoned at any time prior to the Closing:
(a) by
mutual
written consent of the parties hereto;
(b) by
either
the Company, the Initial Stockholders or the Purchaser if the Closing shall
not
have occurred on or before April 29, 2007 (unless the failure to consummate
the
transactions by such date shall be due to the action or failure to act of the
party seeking to terminate this Agreement);
(c) by
the
Purchaser if (i) the Company or the Initial Stockholders shall have failed
to
timely comply in any material respect with any of the covenants, conditions,
terms or agreements contained in this Agreement to be complied with or performed
by it prior to the Closing Date, which breach is not cured within ten (10)
days
if capable of cure; or (ii) any representations and warranties of the
Company or the Initial Stockholders contained in this Agreement shall have
been
materially false when made or on and as of the Closing Date as if made on and
as
of Closing Date (except to the extent it relates to a particular date);
or
(d) by
the
Company or the Initial Stockholders if (i) the Purchaser shall have failed
to
timely comply in any material respect with any of the covenants, conditions,
terms or agreements contained in this Agreement to be complied with or performed
by it prior to the Closing Date, which breach is not cured within ten (10)
days
if capable of cure; or (ii) any representations and warranties of the Purchaser
contained in this Agreement shall have been materially false when made or on
and
as of the Closing Date.
6.2 Effect
of Termination.
In the
event of the termination of this Agreement pursuant to this Article 6, all
further obligations of the parties under this Agreement shall forthwith be
terminated without any further liability of any party to the other parties;
provided, however, that nothing contained in this Section 6.2 shall relieve
any
party from liability for any breach of this Agreement. Upon termination of
this
Agreement for any reason, the Purchaser shall promptly cause to be returned
to
Company or the Initial Stockholders all documents and information obtained
in
connection with this Agreement and the transactions contemplated by this
Agreement and all documents and information obtained in connection with the
Purchaser’s investigation of the Company’s business, operations and legal
affairs, including any copies made by the Purchaser of any such documents or
information.
9
ARTICLE
VII
MISCELLANEOUS
7.1 Notices.
All
notices, requests and other communications hereunder shall be in writing and
either delivered personally, telecopied or sent by certified or registered
mail,
postage prepaid,
If
to Purchasers:
Xxxxxx
Capital Master Fund, Ltd.
0000
Xxxxxx xx xxx Xxxxx
Xxxxx
0000
Xxx
Xxxxxxx XX, 00000
Attn.:
Xxx Xxxx
Fax:
000-000-0000
with
a
copy to:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx, LLC
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn.:
Xxxxxxx Xxxx, Esq.
Fax:
000-000-0000
If
to the Company:
Xxxx
Acquisition II Inc.
0000
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxx, XX 00000
Attn.:
Xxxxxx Xxxxxxxxx
Fax:
000-000-0000
If
to a Selling Stockholder:
c/o
Xxxxx
Xxxxxxxxx
0000
Xxxxxxxxxxx Xxxxx
Xxxx
Xxxxx, XX 00000
Fax:
000-000-0000
10
or
such
other address or fax number as any of the foregoing Persons may hereafter
specify for the purpose by notice to the parties hereto. All such notices,
requests and other communications shall be deemed received on the date delivered
personally or by overnight delivery service or telecopied or, if mailed, five
business days after the date of mailing if received prior to 5 p.m. in the
place
of receipt and such day is a business day in the place of receipt. Otherwise,
any such notice, request or communication shall be deemed not to have been
received until the next succeeding business day in the place of
receipt
7.2 Entire
Agreement.
This
Agreement, together with all of the Exhibits and Schedules annexed hereto,
and
any other Transaction Document contains the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements
and
understandings, oral or written, with respect to such matters.
7.3 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by both the Company and the
Purchaser, or, in the case of a waiver, by the party against whom enforce-ment
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or require-ment of this Agreement shall be deemed to be
a
continuing waiver in the future or a waiver of any other provision, condition
or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
7.4 Headings.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
7.5 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. The assignment by a party
of
this Agreement or any rights hereunder shall not affect the obligations of
such
party under this Agreement.
7.6 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
7.7 Governing
Law.
The
parties hereto acknowledge that the transactions contemplated by this Agreement
and the exhibits hereto bear a reasonable relation to the State of New York.
The
parties hereto agree that the internal laws of the State of New York shall
govern this Agreement and the exhibits hereto.
7.8 Counterpart
Signatures.
This
Agreement may be executed in two or more counterparts, all of which when taken
together 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, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page were an original
thereof.
11
7.9 Severability.
In case
any one or more of the provisions of this Agreement shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision which shall be a reasonable substitute therefore, and
upon
so agreeing, shall incorporate such substitute provision in this
Agreement.
[
SIGNATURE
PAGE FOLLOWS ]
12
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first indicated above.
Company:
Xxxx
Acquisition II Inc.
By: _/s/
Xxxxxx Bettinger_________
Name:
Xxxxxx Xxxxxxxxx
Title:
President
Initial
Stockholders:
By: _/s/
Xxxxxx Xxxxxxxxx ________
Xxxxxx
Xxxxxxxxx
By: _/s/
Xxxxx Xxxx ____________
Xxxxx
Xxxx
By: _/s/
Xxxx Xxxxxxx ____________
Xxxx
Xxxxxxx
Purchaser:
Xxxxxx
Capital Master Fund, Ltd.
By: __/s/
Xxx Xxxx ______________
Name:
Xxx Wolf_________________
Title:
_Director _________________
Exhibit
A
Registration
Rights Agreement
