SECURITIES PURCHASE AGREEMENT
Exhibit
4.23
SECURITIES
PURCHASE AGREEMENT effective as of the Closing of the purchase of Shares
provided for herein, between VERSADIAL,
INC. (a
Nevada
corporation, referred to herein as the "Company"), and the purchasers identified
on the signature pages hereto (each, a “Purchaser”
and
collectively, the “Purchasers”).
WHEREAS,
subject
to the terms and conditions set forth in this Agreement and pursuant to Section
4(2) of the Securities Act of 1933, as amended (the “Securities
Act”),
the
Company desires to issue and sell to each Purchaser, and each Purchaser,
severally and not jointly, desires to purchase from the Company, units (“Units”)
consisting of shares (“Shares”) of Common Stock of the Company, par value
$0.0001 per share (“Common Stock”) , and warrants (“Warrants”) to purchase
shares of Common Stock of the Company (“Warrant Shares”) equal to 20% of the
number of shares of Common Stock purchased at a price per Unit of $1.60
(“Per
Unit Purchase Price”),
all
upon the terms and conditions set forth in this Agreement;
NOW,
THEREFORE,
in
consideration of the foregoing and of the mutual premises, covenants,
representations and warranties herein contained, it is hereby agreed as
follows:
| 1. |
PURCHASE
PRICE; CLOSINGS; ISSUANCE.
|
| 1.1. |
Unit
Purchase.
In reliance on the representations and warranties contained herein
and
subject to the terms and conditions hereof, the Company shall issue
and
sell to each Purchaser, and each Purchaser shall, severally and not
jointly, purchase from the Company, such number of Units indicated
below
such Purchaser’s name on the signature page of this Agreement at the Per
Unit Purchase Price. Each Unit represents the purchase of one share
of
Common Stock and an appurtenant Warrant with an initial exercise
price of
$2.00 per share.
|
| 1.2. |
Closings.
|
| 1.2.1. |
The
purchase and sale of the Units shall take place at the offices of
counsel
to the Company (or remotely via the exchange of documents and signatures)
on one or more dates as the Company may elect prior to January 31,
2008
(each a “Closing”).
|
| 1.2.2. |
Unless
extended by the Company as provided in the Term Sheet annexed to
the
Subscription Agreement, the last Closing shall not be after January
31,
2008.
|
| 1.3. |
Closing
Deliveries.
At each Closing
|
| 1.3.1. |
the
Company shall deliver or cause to be delivered to each Purchaser
buying
Units at such Closing, one or more stock certificates, representing
the
Shares comprising the Units and one or more warrant certificates
representing the Warrants comprising the Units, free and clear of
all
restrictive and other legends (except as expressly provided herein),
evidencing, respectively, the number of Shares equal to the number
of
Units, and such number of Warrants equal to 20% of the number of
Units,
indicated below such Purchaser’s name on the signature page of this
Agreement, registered in the name of such
Purchaser;
|
| 1.3.2. |
each
Purchaser buying Units consisting of Shares and Warrants at such
Closing,
shall deliver or cause to be delivered an amount equal to the Per
Unit
Purchase Price multiplied by the number of Units indicated below
such
Purchaser’s name on the signature page of this Agreement under the heading
“Units Purchased”, in United States dollars and in immediately available
funds, by delivery of a check payable to the Company, or, with the
Company’s consent, wire transfer to an account designated in writing to
such Purchaser by the Company for such purpose. The total purchase
price
payable by each Purchaser shall be set forth under such Purchaser’s name
on the signature page of this Agreement under the heading “Purchase
Price.”
|
| 2. |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Purchaser as
follows:
|
| 2.1. |
Organization
and Qualification.
Each of the Company and its subsidiary, Innopump, Inc., is an entity
duly
organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation or organization (as applicable),
with
the requisite power and authority to own and use its properties and
assets
and to carry on its business as currently conducted. Neither the
Company
nor such subsidiary is in violation of any of the provisions of its
respective articles of incorporation, bylaws or other organizational
or
charter documents, except where such violation would not have a Material
Adverse Effect, as hereinafter defined. Each of the Company and
Innopump,Inc. is duly qualified to do business and is in good standing
as
a foreign corporation or other entity in each jurisdiction in which
the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified
or in
good standing, as the case may be, could not, individually or in
the
aggregate, (i) adversely affect the legality, validity or enforceability
of any Transaction Document (as defined below), (ii) have or result
in a
material adverse effect on the results of operations, assets, prospects,
business or condition (financial or otherwise) of the Company and
the
Subsidiaries, taken as a whole on a consolidated basis, or (iii)
adversely
impair the Company’s ability to perform fully on a timely basis its
obligations under any of the Transaction Documents (any of (i), (ii)
or
(iii), a “Material Adverse
Effect”).
|
| 2.2. |
Authority
of Agreement.
The Company has the power and authority to execute and deliver this
Agreement, the Registration Rights Agreement , the Warrants and the
Subscription Agreement (collectively referred to as the “Transaction
Documents”) and to carry out its obligations hereunder. The execution,
delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Company
and the Transaction Documents constitute the valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its respective terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors' rights generally now or hereafter in effect
and
subject to the application of equitable principles and the availability
of
equitable remedies.
|
| 2.3. |
No
Conflicts.
The execution, delivery and performance of this Agreement and the
other
Transaction Documents and the consummation of the transactions
contemplated hereby and thereby by the Company do not and will not
with or
without the giving of notice or the passage of time or both, violate
or
conflict with or result in a breach or termination of any provision
of, or
constitute a default under, the Articles of Incorporation or the
By-Laws
of the Company or any order, judgment, decree, statute, regulation,
contract, agreement or any other restriction of any kind or description
to
which the Company or its assets may be bound or subject. The Company
is
not in violation of or (with or without notice or lapse of time or
both)
in default under, any material term or provision of its Articles
of
Incorporation or By-Laws or of any indenture, loan or credit agreement,
note agreement, mortgage, security agreement or other agreement,
lease or
other instrument, commitment or arrangement to which the Company
is a
party or by which the Company’s assets are
bound.
|
| 2.4. |
Articles
and Bylaws.
The copies of the Articles of Incorporation and Bylaws of the Company
which have been made available for inspection by the Purchasers prior
to
the execution of this Agreement are true and complete and have not
been
amended or repealed.
|
| 2.5. |
Capital
Stock. Prior to the issuance and sale of the Units to the
Purchasers, the authorized capital stock of the Company will consist
of
35,000,000 shares of Common Stock, of which (i) 15,309,194 shares
shall be
outstanding, (ii) additional shares reserved for issuance upon the
exercise of outstanding warrants as adjusted pursuant to their terms
by
virtue of the sale of securities under this Agreement, and (iii)
an
additional 6,373,415 shares shall be reserved for issuance upon conversion
of the Company’s 10% Redeemable Convertible Secured Notes in the principal
amount of $7,500,000. All such outstanding shares of Common Stock
have
been duly authorized and validly issued and are fully paid and
nonassessable.
|
| 2.6. |
Binding
Obligations. This Agreement and the other Transaction Documents
each constitutes the legal, valid and binding obligations of the
Company,
enforceable against the Company in accordance with its respective
terms,
except as such enforcement is limited by bankruptcy, insolvency and
other
similar laws affecting the enforcement of creditors’ rights generally, and
by general equitable principles.
|
| 2.7. |
Authorization
of Shares.
The Shares are duly authorized and, when issued and paid for in accordance
with the terms of this Agreement, will be duly authorized, validly
issued
and outstanding, fully paid and nonassessable and free and clear
of all
liens and restrictions, other than liens that might have been created
or
suffered by any Purchaser with respect to the Shares and restrictions
imposed by the Securities Act, state securities laws or this Agreement.
|
| 2.8. |
Reservation
of Warrant Shares.
The Warrant Shares have been duly reserved for issuance upon exercise
of
the Warrants and, when issued and paid for in accordance with the
terms of
the Warrants, will be duly authorized, validly issued and outstanding,
fully paid and nonassessable and free and clear of all liens and
restrictions, other than liens that might have been created or suffered
by
any Purchaser with respect to the Warrant Shares and restrictions
imposed
by the Securities Act, state securities laws or this
Agreement.
|
| 2.9. |
Securities
Laws.
Subject to the accuracy of the representations and warranties of
the
Purchasers, the offer, issue and sale of the Units are and will be
exempt
from registration and prospectus delivery requirements of the Securities
Act, are and will be issued in compliance with all applicable federal
and
state securities laws.
|
| 2.10. |
Financial
Statements.
The financial statements of the Company made available for inspection
by
the Purchasers (i) are complete and correct in all material respects
and
are in accordance with the books and records of the Company, (ii)
present
fairly the consolidated financial condition of the Company and its
subsidiaries at September 30, 2007 (the “Balance Sheet Date”) and other
dates therein specified and the results of operations and changes
in
financial position of the Company and its subsidiaries for the periods
therein specified, and (iii) have been prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with prior accounting periods, except that the unaudited financial
statements are subject to year-end audit adjustments and do not contain
complete footnotes or statement of stockholders equity. The Company
and
its subsidiaries have no liabilities or obligations, either acquired
or
absolute, contingent or otherwise, of a type required by generally
accepted accounting principles to be reflected on, or reserved against
in,
a balance sheet, which are not reflected or provided for in the financial
statements and related notes except liabilities arising after the
Balance
Sheet Date which were incurred in the ordinary course of
business.
|
| 2.11. |
Changes.
Since the Balance Sheet Date, neither the Company nor any of its
subsidiaries has (a) mortgaged, pledged or subjected to lien any of
its material assets, tangible or intangible, (b) sold, transferred
or
leased a material portion of its assets, (c) cancelled or compromised
any
material debt or claim, or waived or released any right, of material
value, (d) suffered any physical damage, destruction or loss (whether
or
not covered by insurance) having a material effect, (e) declared
or paid
any dividends on or made any other distributions with respect to,
or
purchased or redeemed, any of its outstanding equity securities,
or
(f) suffered or experienced any material adverse change or loss in
its business other than its continuing losses from
operations.
|
| 2.12. |
Litigation.
There is no action pending and, to the best knowledge of the Company,
there is no material action threatened against the Company, its
subsidiaries or their properties or assets. The Company is not in
default
with respect to any order, writ, judgment, injunction, decree,
determination or award of any court or of any governmental entity.
|
| 2.13. |
Disclosure.
The representations and warranties of the Company contained herein
do not
contain any untrue statement of material fact or omit to state a
material
fact necessary to make the statements therein, in light of the
circumstances under which they are made, not
misleading.
|
| 2.14. |
No
Governmental Consent or Approval Required.
Based in part on the representations made by the Purchaser in the
Transaction Documents, no authorization, consent, approval or other
order
of, declaration to, or registration, qualification, designation or
filing
with, any federal, state or local governmental agency or body is
required
by or from the Company for the valid and lawful authorization, execution
and delivery by the Company of this Agreement or any other agreement
entered into by the Company in connection with this Agreement, and
consummation of the transactions contemplated hereby or thereby,
or for
the valid and lawful authorization, issuance, sale and delivery of
the
Shares and the Warrants comprising the Units, and the issuance of
the
Warrant Shares upon exercise of the Warrants other than the qualification
(or taking of such action as may be necessary to secure an exemption
from
qualification, if available) of the offer and sale of the Shares,
Warrants
and Warrant Shares under applicable blue sky laws and federal securities
laws, which filings and qualifications, if required, will be accomplished
in a timely manner so as to comply with such qualification or exemption
from qualification requirements.
|
| 3. |
REPRESENTATIONS
AND WARRANTIES OF EACH PURCHASER.
Each Purchaser represents and warrants to the Company as
follows:
|
| 3.1. |
Status.
If the Purchaser is a corporation or other entity, the Purchaser
is a
corporation or other entity duly organized, validly existing and
in good
standing under the laws of the jurisdiction of its organization with
full
power and authority to execute, deliver and perform its obligations
under
this Agreement, and the other Transaction Documents. If the Purchaser
is
an individual, the Purchaser has legal capacity to execute, deliver
and
perform his or her obligations under this Agreement, and the other
Transaction Documents.
|
| 3.2. |
Authority
for Agreements.
The Purchaser has the power and authority to execute and deliver
this
Agreement and the other Transaction Documents and to carry out its
obligations hereunder and thereunder. The execution, delivery and
performance by the Purchaser of this Agreement and the other Transaction
Documents and the consummation of the transactions contemplated hereby
and
thereby have been duly authorized by all necessary action on the
part of
the Purchaser and this Agreement and the other Transaction Documents
each
constitutes the valid and legally binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except
as
the same may be limited by bankruptcy, insolvency, reorganization
or other
laws affecting the enforcement of creditors' rights generally now
or
hereafter in effect and subject to the application of equitable principles
and the availability of equitable
remedies.
|
| 3.3. |
No
Conflicts.
The execution, delivery and performance of this Agreement and the
other
Transaction Documents by the Purchaser and the consummation of the
transactions contemplated hereby and thereby by the Purchaser does
not and
will not with or without the giving of notice or the passage of time
or
both, violate or conflict with or result in a breach or termination
of any
provision of, or constitute a default under, the Certificate of
Incorporation or the By-Laws of the Purchaser (if the Purchaser is
a
corporation), any other organizational instrument (if the Purchaser
is a
legal entity other than a corporation) or any order, judgment, decree,
statute, regulation, contract, agreement or any other restriction
of any
kind or description to which the Purchaser is a party or by which
the
Purchaser may be bound.
|
| 3.4. |
Purchaser
Representations and Acknowledgments.
|
| 3.4.1. |
The
Purchaser is acquiring the Units for the Purchaser’s own account for
investment only and not as nominee or agent and not with a view to,
or for
sale in connection with, a distribution of the Shares and with no
present
intention of selling, transferring, granting a participation in or
otherwise distributing, the Units, all within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations
hereunder (the "Securities Act") and any applicable state, securities
or
blue-sky laws.
|
| 3.4.2. |
The
Purchaser is not a party or subject to or bound by any contract,
undertaking, agreement or arrangement with any person to sell, transfer
or
pledge the Units or any part thereof to any person, and has no present
intention to enter into such a contract, undertaking, agreement or
arrangement.
|
| 3.5. |
The
Purchaser acknowledges to the Company
that:
|
| 3.5.1. |
The
Company has advised the Purchaser that the Units and Warrant Shares
have
not been registered under the Securities Act or under the laws of
any
state on the basis that the issuance thereof contemplated by this
Agreement is exempt from such
registration;
|
| 3.5.2. |
The
Company has advised the Purchaser that a purchase of the Units involves
a
high degree of risk and is suitable only for persons of substantial
financial means who have no need for liquidity in their
investments;
|
| 3.5.3. |
The
Company's reliance on the availability of such exemption is, in part,
based upon the accuracy and truthfulness of the Purchaser's
representations contained herein;
|
| 3.5.4. |
The
Units and the Warrant Shares cannot be resold without registration
or an
exemption under the Securities Act and such state securities laws,
and
that certificates representing the Units and the Warrant Shares will
bear
a restrictive legend to such effect substantially as
follow;
|
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND APPLICABLE STATE SECURITIES
LAWS, AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS
CERTIFICATE. THE SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD, TRANSFERRED,
OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR
THE
COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY
BE
EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT.”
| 3.5.5. |
The
Purchaser has evaluated the merits and risks of purchasing the Units,
and
has such knowledge and experience in financial and business matters
that
the Purchaser are capable of evaluating the merits and risks of such
purchase, is aware of and has considered the financial risks and
financial
hazards of purchasing the Units, and is able to bear the economic
risk of
purchasing the Units, including the possibility of a complete loss
with
respect thereto;
|
| 3.5.6. |
The
Purchaser has had access to such information regarding the business
and
finances of the Company and its subsidiaries, and have been provided
the
opportunity to discuss with the Company's management the business,
affairs
and financial condition of the Company and its subsidiaries and such
other
matters with respect to the Company and its subsidiaries as would
concern
a reasonable person considering the transactions contemplated by
this
Agreement and/or concerned with the operation of the Company;
|
| 3.5.7. |
All
of the Purchaser's representations and warranties set forth herein
are
correct and complete as of the date of this Agreement, shall be true
and
correct as of the closing of the transaction contemplated by this
Agreement, shall survive such closing and if there should be any
material
change in such information prior to the sale to the Purchaser of
the Units
the Purchaser will immediately furnish such revised or corrected
information to the Company; and
|
| 3.5.8. |
The
Purchaser, by initialing the applicable paragraphs in the Subscription
Agreement that is a part of the Transaction Documents represents
and
warrants that the Purchaser is an "Accredited
Investor"
within the meaning of Rule 501 of Regulation D promulgated under
Section 4(2) of the Securities Act, as presently in effect.
|
| 4. |
CONDITIONS
PRECEDENT TO CLOSING
|
| 4.1. |
Conditions
Precedent to the Obligations of the Purchasers.
The obligation of each Purchaser to acquire Units at the Closing
is
subject to the satisfaction or waiver by such Purchaser, at or before
the
Closing, of each of the following
conditions:
|
| 4.1.1. |
Representations
and Warranties.
The representations and warranties of the Company contained herein
shall
be true and correct in all material respects as of the date when
made and
as of the Closing as though made on and as of such date;
and
|
| 4.1.2. |
Performance.
The Company and each other Purchaser shall have performed, satisfied
and
complied in all material respects with all covenants, agreements
and
conditions required by the Transaction Documents to be performed,
satisfied or complied with by it at or prior to the
Closing.
|
| 4.1.3. |
No
Injunction.
No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed
by
any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated
by the
Transaction Documents;
|
| 4.1.4. |
Adverse
Changes.
Since the date of execution of this Agreement, no event or series
of
events shall have occurred that reasonably would be expected to have
or
result in a Material Adverse
Effect.
|
| 4.2. |
Conditions
Precedent to the Obligations of the Company.
The obligation of the Company to sell Units at the Closing is subject
to
the satisfaction or waiver by the Company, at or before the Closing,
of
each of the following conditions:
|
| 4.2.1. |
Representations
and Warranties.
The representations and warranties of the Purchasers contained herein
shall be true and correct in all material respects as of the date
when
made and as of the Closing Date as though made on and as of such
date;
and
|
| 4.2.2. |
Performance.
The Purchasers shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied
with
by the Purchasers at or prior to the
Closing.
|
| 5. |
INDEPENDENT
NATURE OF PURCHASERS’ OBLIGATIONS AND RIGHTS.
The obligations of each Purchaser under any Transaction Document
are
several and not joint with the obligations of any other Purchaser,
and no
Purchaser shall be responsible in any way for the performance of
the
obligations of any other Purchaser under any Transaction Document.
The
decision of each Purchaser to purchase Units pursuant to this Agreement
has been made by such Purchaser independently of any other Purchaser
and
independently of any information, materials, statements or opinions
as to
the business, affairs, operations, assets, properties, liabilities,
results of operations, condition (financial or otherwise) or prospects
of
the Company or of the Subsidiary which may have been made or given
by any
other Purchaser or by any agent or employee of any other Purchaser,
and no
Purchaser or any of its agents or employees shall have any liability
to
any other Purchaser (or any other Person) relating to or arising
from any
such information, materials, statements or opinions. Nothing contained
herein or in any Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind
of
entity, or create a presumption that the Purchasers are in any way
acting
in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Document. The Company
hereby
confirms that it understands that the Purchasers are not acting as
a
“group” as that term is used in Section 13(d) of the Exchange Act. Each
Purchaser acknowledges that no other Purchaser has acted as agent
for such
Purchaser in connection with making its investment hereunder and
that no
other Purchaser will be acting as agent of such Purchaser in connection
with monitoring its investment hereunder. Each Purchaser 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
Purchaser to be joined as an additional party in any proceeding for
such
purpose. Each Purchaser represents that it has been represented by
its own
separate legal counsel in its review and negotiations of this Agreement
and the Transaction Documents
|
| 6. |
MISCELLANEOUS
|
| 6.1. |
Entire
Agreement; Survival of Provisions.
The Transaction Documents constitute the entire agreement of the
parties
with respect to the transactions contemplated hereby and supersede
all
prior agreements and understandings with respect thereto, whether
written
or oral. All of the covenants of the parties made herein shall remain
operative and in full force and effect pursuant to their respective
terms
regardless of acceptance of the Shares and payment therefor. The
representations and warranties set forth herein shall survive the
execution and delivery of this Agreement, and the issuance of the
Shares
and Warrants in each case until the second anniversary of the date
of this
Agreement (the "Expiration
Date"),
and shall in no way be affected by any investigation of the subject
matter
thereof made by or on behalf of the Purchaser or the Company.
Notwithstanding the preceding sentence, any representation or warranty
in
respect of which an indemnity may be sought hereof shall survive
the time
at which it would otherwise terminate pursuant to the preceding sentence,
if a claim for indemnification shall have been given to the party
against
whom such indemnity may be sought prior to the Expiration Date. The
agreements and covenants of the parties set forth in a Transaction
Document shall survive for the term of the Transaction Document.
The
representations, warranties, agreements and covenants made in the
Transaction Documents shall be deemed to have been relied upon by
the
parties hereto.
|
| 6.2. |
No
Waiver; Modifications in Writing.
No failure or delay by a party in exercising any right, power or
remedy
hereunder shall operate as a waiver thereof, nor shall any single
or
partial exercise of any such right, power or remedy preclude any
other or
further exercise thereof or the exercise of any other right, power
or
remedy. Except as otherwise expressly provided herein with respect
to any
right of indemnification, the remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any
party
at law or in equity or otherwise. No waiver of or consent to any
departure
by a party from any provision of this Agreement shall be effective
unless
signed in writing by the parties entitled to the benefit thereof.
No
amendment, modification or termination of any provision of this Agreement
shall be effective unless signed in writing by all parties. Any amendment,
supplement or modification of or to any provision of this Agreement,
any
waiver of any provision of this Agreement, and any consent to any
departure from the terms of any provision of this Agreement, shall
be
effective only in the specific instance and for the specific purpose
for
which made or given.
|
| 6.3. |
Notices.
All notices, demands and other communications provided for hereunder
shall
be in writing, shall be given by registered or certified mail, return
receipt requested, on the date sent by telecopy with electronic
confirmation of such transmission, the date given by electronic or
email
delivery, or the business day next following deposit with a courier
service for overnight delivery with written confirmation of such
delivery
or upon personal delivery, addressed to the parties, as
follows:
|
If
to the
Company, to:
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Facsimile:
212-808-0113
with
a
copy to (which shall not constitute notice):
Xxxxxx
Xxxxxxxx, Esq.
Xxxxxxx,
Xxxxxxxxx & Xxxxxxxx, LLP
Suite
1313, 000 Xxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Telecopy:
(000) 000-0000
Securities
Purchase Agreement 10
If
to a
Purchaser, at the address set forth on the signature page hereto.
or
to
such other address as any party shall designate in writing in compliance with
the provisions of this Section.
| 6.4. |
Execution
in Counterparts.
This Agreement may be executed in any number of counterparts and
by
different parties hereto on separate counterparts, which may be delivered
by facsimile or electronic copy, each of which counterparts, when
so
executed and delivered, shall be deemed to be an original and all
of which
counterparts, taken together, shall constitute but one and the same
Agreement.
|
| 6.5. |
Binding
Effect; Assignment.
The rights and obligations of the parties under this Agreement may
not be
assigned or otherwise transferred to any other Person, without the
prior
written consent of the other party hereto. Except as expressly provided
in
this Agreement, this Agreement shall not be construed so as to confer
any
right or benefit upon any Person other than the parties to this Agreement
and their respective successors and permitted assigns. This Agreement
shall be binding upon and shall inure to the benefit of the Company,
the
Purchasers and their respective permitted successors and
assigns.
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| 6.6. |
Governing
Law.
This Agreement shall be deemed to be a contract made under and shall
be
governed by and construed in accordance with the internal laws of
the
State of New York without reference to the principles of conflict
of laws,
provided, however, that the due authorization, issuance and enforceability
of the terms of the Common Stock or any requirement of stockholder
approval or the validity or invalidity of any action by the Board
of
Directors or compliance by the Company or any subsidiary with its
Certificate of Incorporation or bylaws or any of their corporate
authority, shall be governed by, and construed in accordance with,
the
laws of the domicile of such entity, without giving effect to the
principles thereof relating to the conflict of laws.
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| 6.7. |
Consent
to Jurisdiction and Service of Process.
Any suit, action or proceeding arising out of or relating to the
Transaction Documents or the transactions contemplated hereby or
thereby
may be instituted in any Federal court situated in the State of New
York
or any state court of the State of New York, in each case, in the
Borough
of Manhattan, City of New York, in the State of New York, and each
party
agrees not to assert, by way of motion, as a defense or otherwise,
in any
such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of such court, that the suit, action
or
proceeding is brought in an inconvenient forum, that the venue of
the
suit, action or proceeding is improper or that the Transaction Documents
or the subject matter hereof or thereof may not be enforced in or
by such
court. Each party further irrevocably submits to the jurisdiction
of such
court in any such suit, action or proceeding. Any and all service
of
process and any other notice in any such suit, action or proceeding
shall
be effective against any party if given personally or by registered
or
certified mail, return receipt requested if sent to such party at
the
address for such party set forth in Section 6.3 hereof, or by any
other
means of mail that requires a signed receipt, postage fully prepaid,
mailed to such party as herein provided. Nothing herein contained
shall be
deemed to affect the right of any party to serve process in any manner
permitted by law or to commence legal proceedings or otherwise proceed
against any other party in any other
jurisdiction.
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Securities
Purchase Agreement 11
| 6.8. |
Further
Assurances.
Each of the parties hereto shall execute and deliver such documents,
instruments and agreements and take such further actions as may be
reasonably required or desirable to carry out the provisions of the
Transaction Documents and the transactions contemplated hereby and
thereby, and each of the parties hereto shall cooperate with each
other in
connection with the foregoing.
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| 6.9. |
Severability
of Provisions.
Any provision hereof 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, 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 law, the parties
hereto waive any provision of law that renders any such provision
prohibited or unenforceable in any
respect.
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| 6.10. |
Headings.
The Article, Section and subsection headings used or contained in
this
Agreement are for convenience of reference only and shall not affect
the
construction of this Agreement.
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| 6.11. |
Costs
and Expenses.
Other then as previously agreed to in a separate writing between
the
Company and Fursa Master Global Event Driven Fund, L.P., each party
shall
bear its own costs and expenses in connection with the execution
and
delivery of the Transaction
Documents.
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| 6.12. |
Waiver
of Jury Trial.
The parties hereto hereby irrevocably waive all right to a trial
by jury
in any action, proceeding or counterclaim arising out of or relating
to
this Agreement or any other Transaction Document or the transactions
contemplated hereby or thereby.
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SIGNATURE
PAGE
The
Parties acknowledge that the signature page of the Subscription Agreement which
is part of the Transaction Documents shall be deemed the signature page
hereof.
Securities
Purchase Agreement 12
