SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
This
Securities Purchase Agreement (the “Agreement”) is made and entered into
on February 28, 2006 by
and
between Xxxxxxxxx.xxx, Inc., a corporation organized under the laws of the
State
of Colorado, with its principal place of business currently located at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx, (the “Company”), and Oceanus Value Fund,
L.P. (the “Buyer”). The Company presently intends to reincorporate in the State
of Delaware, relocate its principal place of business and change its name
to
FIIC Holdings, Inc.
Recitals
A.
The
Company and the Buyer are executing and delivering this Agreement in reliance
upon the exemptions from securities registration afforded by (i) the provisions
of Regulation D (“Regulation D”) as promulgated by the United States Securities
and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended
(the “1933 Act”), and (ii) Section 4(2) under the 0000 Xxx.
B.
The
Buyer desires to purchase from the Company, and the Company desires to sell
to
the Buyer, for the amount and upon the terms and conditions stated in this
Agreement, in a closing (the “Closing”) as herein described, the following
securities of the Company:
(i)
The
Company’s 12% Senior Secured Convertible Promissory Note, the form of which is
attached as Exhibit
A
(the
“Note”), which may be converted into the Company’s $.0001 par value common stock
(the “Common Stock”) on the terms and conditions set forth in the Note. The
principal amount of the Note shall be Three Hundred Fifty Thousand Dollars
($350,000).
(ii)
As
additional consideration for the Buyer’s purchase of the Note, the Company shall
also issue to the Buyer a warrant (the “Warrant”) to purchase such shares of
Common Stock at such exercise price as is specified in the Warrant, which
Warrant must be exercised (if at all) within five (5) years after the date
of
issuance. The Warrant shall be in the form attached as Exhibit
B.
Any
Common Stock issuable pursuant to conversion of the Note shall be referred
to
herein as the “Conversion Shares.” The Common Stock receivable upon exercise of
the Warrant shall be referred to herein as the “Warrant Shares.” The Note, the
Conversion Shares, the Warrant and the Warrant Shares may be collectively
referred to herein as the “Securities.”
C.
Contemporaneously with the execution and delivery of this Agreement, the
Company
is executing and delivering a Security Agreement (the “Security Agreement”) in
the form of the attached Exhibit
C,
pursuant to which the Company has agreed to secure its obligations under
the
Note with a security interest in all existing and hereafter acquired assets
(including all patents, software, trademarks and other intellectual property)
owned by the Company (the “Collateral”).
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D.
As
additional security for the Company’s obligations under the Note,
contemporaneously with the execution and delivery of this Agreement, (i)
FIIC,
Inc., which is the Company’s wholly-owned subsidiary (the “Guarantor”), is
executing and delivering (A) a Corporate Guaranty (the “Guaranty”) in the form
attached as Exhibit
D
pursuant
to which Guarantor agrees to guaranty payment of the Note and (B) a Guarantor
Security Agreement (the “Guarantor Security Agreement”) in the form of the
attached Exhibit
E,
pursuant
to which the Guarantor has agreed to secure its obligations under the Guaranty
with a security interest in all existing and hereafter acquired assets
(including all patents, software, trademarks and other intellectual property)
owned by the Guarantor and (ii) Xxxxx X. France, Jr., Xxxxxxx X. France,
Manex
Group, Xxxxxx Xxxxxxxxx, Xxxx X. Xxxxxxx Trust, CMS, LLC, Xxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxx and Corporate Growth Partners (collectively,
the
“Pledgors”) are each executing and delivering a Guaranty, Pledge and Security
Agreement (the “Pledge Agreements”) in the form attached as Exhibit
F
pursuant to which each Pledgor agrees to guaranty payment of the Note and
to
secure that guaranty with a first-priority security interest in all shares
of
the Company which he, she or it owns.
E.
Contemporaneously with the execution and delivery of this Agreement, the
parties
hereto are also executing and delivering a Registration Rights Agreement
(the
“Registration Rights Agreement”) in the form of the attached Exhibit
G,
pursuant to which the Company has, among other things, agreed to provide
certain
registration rights for the Conversion Shares and the Warrant Shares under
the
1933 Act and applicable state securities laws.
Agreements
NOW,
THEREFORE, in consideration of their respective promises contained herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Buyer hereby agree as
follows:
1.
Purchase
and Sale of the Securities.
(a)
Purchase.
At the
Closing, the Buyer agrees to purchase the Note from the Company and the Company
agrees to sell the Note to the Buyer. The purchase price for the Note (the
“Purchase Price”) shall be the amount to be delivered to the Company as
specified in the Escrow Agreement in the form of the attached Exhibit
H
(the
“Escrow Agreement”).
(b)
The
Closing.
The date
of the Closing (the “Closing Date”) shall be the date specified in the Escrow
Agreement or such other date as the parties may agree in writing. On or before
the Closing Date, (i) the Purchase Price shall be delivered to the Escrow
Agent
(as defined in the Escrow Agreement) and (ii) the Company shall deliver to
the
Escrow Agent on behalf of the Company the originals of this Agreement, the
Note,
the Warrant, the Security Agreement, the Guaranty, the Guarantor Security
Agreement, the Pledge Agreements, the Registration Rights Agreement and the
Escrow Agreement, each duly authorized and executed by the Company and/or
any
other parties thereto (other than the Buyer), together with such other items
as
may be required by this Agreement (collectively, the “Closing
Documents”).
-2-
(c)
Payment.
At the
Closing, the Escrow Agent shall be responsible for disbursement of the Purchase
Price and delivery of the Closing Documents to the Buyer (with copies to
the
Company duly executed by the Buyer, where required), in each case in accordance
with the terms of the Escrow Agreement.
2. The
Buyer’s Representations and Warranties. With
respect to its purchase hereunder, the Buyer represents and warrants to the
Company, and agrees, as follows:
(a)
Investment
Purposes; Compliance With 1933 Act.
The
Buyer is purchasing the Securities for its own account for investment only
and
not with a view towards, or in connection with, the public sale or distribution
thereof, except pursuant to sales registered, or exempt from registration,
under
the 1933 Act and applicable state securities laws. The Buyer is not purchasing
the Securities for the purpose of covering short sale positions in the Common
Stock established on or prior to the Closing Date. The Buyer agrees to offer,
sell or otherwise transfer the Securities only (i) in accordance with the
terms
of this Agreement, the Note and the Warrant, as applicable, and (ii) pursuant
to
registration under the 1933 Act or an exemption from registration under the
1933
Act and any other applicable securities laws. The Buyer does not by its
representations in this Section 2(a) agree to hold the Securities for any
minimum or other specific term, and reserves the right to dispose of the
Securities at any time pursuant to a registration statement or in accordance
with an exemption from registration under the 1933 Act, in all cases in
accordance with applicable state and federal securities laws. The Buyer
understands that it shall be a condition to the issuance of the Conversion
Shares and the Warrant Shares that such shares be and are subject to the
representations set forth in this Section 2(a).
(b)
Accredited
Investor Status.
The
Buyer is an “accredited investor,” as that term is defined in Rule 501(a) of
Regulation D. The Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
the
investment made pursuant to this Agreement. The Buyer is aware that it may
be
required to bear the economic risk of the investment made pursuant to this
Agreement for an indefinite period of time, and is able to bear such
risk.
(c)
Reliance
on Exemptions.
The
Buyer understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements of applicable
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 and covenants 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.
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(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 materials relating
to the offer and sale of the Securities that have been requested by the Buyer.
The Buyer and its advisors, if any, have been afforded the opportunity to
ask
all questions of the Company as they have in their discretion deemed advisable.
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 the
investment made pursuant to this Agreement.
(e)
No
Government Review.
The
Buyer understands that no United States federal or state agency or any other
government or governmental agency has approved 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, the Securities have not been and are not being registered under
the
1933 Act or any state securities laws, and may not be offered for sale, sold
or
otherwise transferred unless either (A) subsequently registered thereunder
or
(B) the Buyer shall have delivered to the Company an opinion by counsel
reasonably satisfactory to the Company, in form, scope and substance reasonably
satisfactory 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 and (ii) neither the Company nor any other person is under any
obligation to register the Securities under the 1933 Act or any state securities
laws or to comply with the terms and conditions of any exemption thereunder
(in
each case, except as required by this Agreement or the Registration Rights
Agreement).
(g)
Legend.
Subject
to Section 5(b) below, the Buyer understands that the Note, the Warrant and
the
stock certificates representing the Conversion Shares and the Warrant Shares
(until such time as the Conversion Shares and the Warrant Shares have been
registered under the 1933 Act pursuant to the Registration Rights Agreement
or
otherwise may be sold by the Buyer pursuant to Rule 144 (or any applicable
rule
which operates to replace said Rule) promulgated under the 1933 Act (“Rule
144”)), will bear a restrictive legend (the “Legend”) in substantially the
following form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 OR THE SECURITIES LAWS OF ANY STATE (COLLECTIVELY, THE “LAWS”). THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN
THE
ABSENCE OF EITHER (I) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE APPLICABLE LAWS OR (II) AN OPINION OF COUNSEL IN FORM, SUBSTANCE
AND
SCOPE REASONABLY ACCEPTABLE TO THE ISSUER, TO THE EFFECT THAT SUCH REGISTRATION
IS NOT REQUIRED DUE TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE APPLICABLE LAWS.
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(h)
Authorization;
Enforcement.
This
Agreement, the Registration Rights Agreement, the Security Agreement and
the
Escrow Agreement (collectively, the “Agreements”) have been duly and validly
authorized, executed and delivered by the Buyer and are each valid and binding
agreements of the Buyer enforceable in accordance with their 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.
3. The
Company’s Representations and Warranties. The
Company represents and warrants to the Buyer, and agrees, as
follows:
(a)
Organization
and Qualification.
The
Company is a corporation duly organized and existing in good standing under
the
laws of the State of Colorado, and has the requisite corporate power to own
its
properties and to carry on its business as now being conducted. The Company
is
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. As used herein, “Material Adverse Effect” means any
material adverse effect on the operations, properties or financial condition
of
the Company taken as a whole. The Common Stock is quoted on the OTC Bulletin
Board (the “OTCBB”). The Company has received no notice, either written or oral,
with respect to the continued eligibility of the Common Stock for such
quotation, the Company has maintained all requirements for the continuation
of
such quotation, and the Company does not reasonably anticipate that the Common
Stock will be removed from the OTCBB in the foreseeable future. The Company
has
complied, and will timely comply, with all requirements of the SEC, the National
Association of Securities Dealers and the OTCBB with respect to the issuance
of
the Securities.
(b)
Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and
perform the Agreements, to issue and sell the Securities in accordance with
the
terms thereof, and to perform its obligations under the Note and the Warrant
in
accordance with their terms. The Company’s execution, delivery and performance
of the Agreements, the Note and the Warrant, and its consummation of the
transactions contemplated thereby, have been duly authorized by the Company’s
Board of Directors and no further consent or authorization of the Company,
its
Board of Directors, its stockholders, or any other person or entity is required.
The Agreements and, on the Closing Date, the Note and the Warrant, have been
duly and validly authorized, executed and delivered by the Company, and the
Note
(when issued), the Warrant (when issued), and the Agreements constitute the
valid and binding obligations of the Company enforceable in accordance with
their 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.
(c)
Capitalization.
As of
the Closing Date, the authorized capital stock of the Company consisted of
100,000,000 shares of Common Stock, of which no more than 22,336,692 shares
of
Common Stock are issued and outstanding or reserved for issuance upon the
exercise of outstanding options and warrants or the conversion of outstanding
convertible debt. All of such outstanding shares
have been validly issued and are fully paid and non-assessable. No shares
of
Common Stock are subject to preemptive rights or any other similar rights
or any
liens or encumbrances. As of the Closing Date, except as set forth in the
attached Schedule
3(c): (i)
there
are no outstanding options, warrants, scrip, rights to subscribe to, calls
or
commitments of any character whatsoever issued or agreed to by the Company
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 of the Company or any of its subsidiaries
except those issued to the Buyer 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
as provided herein and in the Registration Rights Agreement). If requested
by
the Buyer, the Company has furnished to the Buyer true and correct copies
of the
Company’s Articles of Incorporation as in effect on the date hereof (the
“Articles of Incorporation”), and the Company’s Bylaws as in effect on the date
hereof.
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(d)
Issuance
of Warrant and Conversion Shares.
The
Warrant Shares are all duly authorized and reserved for issuance, and in
all
cases upon issuance shall be validly issued, fully paid and non-assessable,
free
from all taxes, liens and charges with respect to the issuance thereof, and
will
not be subject to preemptive rights or other similar rights of stockholders
of
the Company. Upon issuance, the Conversion Shares shall be validly issued,
fully
paid and non-assessable, free from all taxes, liens and charges with respect
to
the issuance thereof, and will not be subject to preemptive rights or other
similar rights of stockholders of the Company.
(e)
Acknowledgment
Regarding Buyer’s Purchase of the Securities.
(i) The
Buyer is not acting as a financial advisor to or fiduciary of the Company
(or in
any similar capacity) with respect to this Agreement or the transactions
contemplated hereby, (ii) this Agreement and the transactions contemplated
hereby, and the relationship between the Buyer and the Company, are and will
be
considered “arms-length” notwithstanding any other or prior agreements or nexus
between the Buyer and the Company, whether or not disclosed, and (iii) any
statements made by the Buyer, or any of its representatives or agents, in
connection with this Agreement and the transactions contemplated hereby are
not
to be construed as advice or a recommendation, are merely incidental to the
Buyer’s purchase of the Securities and have not been relied upon in any way by
the Company, its officers or directors. The Company’s decision to enter into
this Agreement and the transactions contemplated hereby have been based solely
upon an independent evaluation by the Company, its officers and
directors.
(f)
No
Integrated Offering.
Neither
the Company nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances which would
prevent
the parties hereto from consummating the transactions contemplated hereby
pursuant to an exemption from registration under the 1933 Act and, specifically,
in accordance with the provisions of Regulation D. The transactions contemplated
hereby are exempt from the registration requirements of the 1933 Act, assuming
the accuracy of the representations and warranties of the Buyer contained
herein.
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(g)
No
Conflicts.
Except
as set forth in the attached Schedule
3(g), neither
the Company nor any of its subsidiaries is in violation of its Articles of
Incorporation or other organizational documents, and neither the Company
nor any
of its subsidiaries is in default (and no event has occurred which, with
notice
or lapse of time or both, would put the Company or any of its subsidiaries
in
default) under, nor has there occurred any event giving others (with notice
or
lapse of time or both) any rights of termination, amendment, acceleration
or
cancellation, of any agreement, indenture or other instrument to which the
Company or any of its subsidiaries is a party, except for possible defaults
or
rights as would not, in the aggregate or individually, have a Material Adverse
Effect. The business of the Company and its subsidiaries is not being conducted
and, so long as the Buyer owns any of the Securities, shall not be conducted,
in
violation of any law, ordinance or regulation of any governmental entity,
except
for possible violations which neither singly or in the aggregate would have
a
Material Adverse Effect. Except as specifically contemplated by this Agreement
or as required under the 1933 Act and any applicable state securities laws,
the
Company is not required to obtain any consent, authorization or order of,
or
make any filing or registration with, any court, governmental agency, individual
or entity in order for it to execute, deliver and perform any of its obligations
under the Agreements, the Note or the Warrant in accordance with the terms
thereof.
(h)
SEC
Documents; Financial Statements.
Except
as disclosed on Schedule
3(h)
hereof,
since at least July 19, 2005, the Company has timely 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”), with all of the foregoing that were filed
prior to the date hereof and all exhibits included therein and all financial
statements and schedules thereto and all documents (other than exhibits)
incorporated by reference therein being hereinafter referred to as the “SEC
Documents.” The Company has delivered to the Buyer (to the extent requested by
the Buyer) true and complete copies of the SEC Documents. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the applicable rules and regulations of the SEC promulgated
thereunder, and none of the SEC Documents, at the time they were filed with
the
SEC, contained any untrue statement of a material fact or omitted to state
a
material fact required to be stated therein 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 (i)
have
been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved except (A) as may be otherwise
indicated in such financial statements or the notes thereto or (B) in the
case
of unaudited interim statements, to the extent they may exclude footnotes
or may
be condensed or summary statements and (ii) 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
information provided by or on behalf of the Company to the Buyer contains
any
untrue statement of a material fact or omits to state any material fact required
to be stated therein in order to make the statements therein, in the light
of
the circumstances under which they
are
or were made, not misleading. Except as set forth in the financial statements
of
the Company included in the SEC Documents, the Company has no liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to the date of such financial statements and
(ii)
obligations under contracts and commitments incurred in the ordinary course
of
business and not required under generally accepted accounting principles
to be
reflected in such financial statements, in each case of clauses (i) and (ii)
above, which, individually or in the aggregate, are not material to the
financial condition, business, operations, properties, operating results
or
prospects of the Company. The SEC Documents contain a complete and accurate
description of all written and oral contracts, agreements, leases or other
instruments to which the Company or any subsidiary is a party or by which
the
Company or any subsidiary is bound which are required by the rules and
regulations promulgated by the SEC to be disclosed (each a “Contract”). None of
the Company, its subsidiaries or, to the best of the Company’s knowledge, any of
the other parties thereto, is in breach or violation of any Contract, which
breach or violation would, or with the lapse of time, the giving of notice,
or
both, have a Material Adverse Effect.
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(i)
Absence
of Certain Changes; Bankruptcy.
Except
as disclosed in the SEC Documents, since at least July 19, 2005, there has
been
no material adverse change or development in the business, properties,
operation, financial condition, results of operations or prospects of the
Company. The Company has not taken any steps, and does not currently have
any
reasonable expectation of taking any steps, to seek protection pursuant to
any
bankruptcy law, nor does the Company have any knowledge that its creditors
intend to initiate involuntary bankruptcy proceedings.
(j)
Absence
of Litigation.
Except
as set forth in the attached Schedule
3(j)
or
in the SEC Documents filed prior to July 19, 2005, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board
or
governmental 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.
(k)
Foreign
Corrupt Practices.
Neither
the Company nor any of its subsidiaries, nor any officer, director or other
person acting on behalf of the Company or any subsidiary has, in the course
of
his, her or its actions for or on behalf of the Company, (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from
corporate funds, (iii) violated or is in violation of any provision of the
U.S.
Foreign Corrupt Practices Act of 1977, as amended, or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to
any
foreign or domestic government official or employee.
(l)
Brokers;
No General Solicitation.
The
Company has taken no action that would give rise to any claim by any person
for
brokerage commissions, finder’s fees or similar payments relating to this
Agreement and the transactions contemplated hereby, other than as set forth
in
the Disbursement
Instructions attached to the Note Purchase Agreement by and between FIIC,
Inc.
and the Buyer (the “Disbursement Instructions”). The Company acknowledges that
no broker or finder was involved with respect to the transactions contemplated
hereby, other than as set forth in the Disbursement Instructions. Neither
the
Company nor any other person or entity participating on the Company’s behalf in
the transactions contemplated hereby, nor any person or entity acting for
the
Company or any such other person or entity, has conducted any “general
solicitation,” as described in Rule 502(c) under Regulation D, with respect to
the Securities.
-8-
(m)
Status
of Assets.
Except
as described on Schedule
3(m) or
in the
SEC Documents filed prior to July 19, 2005, the Company has good and marketable
title to each of the assets that is material to its business, free and clear
of
all liens, claims, restrictions and other encumbrances.
(n) Eligibility
to File Registration Statement.
The
Company is currently eligible to file registration statements with the SEC
on
Form SB-2 under the 0000 Xxx.
(o)
Validity
of Guaranty and Guarantor Security Agreement.
To the
Company’s best knowledge, the Guaranty and the Guarantor Security Agreement each
constitute a valid and binding agreement of FIIC, Inc., enforceable in
accordance with its terms, subject to bankruptcy, insolvency, moratorium
and
other similar laws affecting the enforcement of creditors’ rights
generally.
(p)
Status
of Pledged Shares.
The
shares of the Company that are subject to the Pledge Agreements (the “Pledged
Shares”) constitute more than fifty percent (50%) of the outstanding shares and
voting power of the Company. To the Company’s best knowledge after inquiry of
each Pledgor, except as described on Schedule
3(p), no
Pledgor has pledged, hypothecated or otherwise encumbered any of his, her
or its
Pledged Shares.
(q)
Validity
of Pledge Agreements.
To the
Company’s best knowledge, the Pledge Agreements constitute valid and binding
obligations of Xxxxx X. France, Jr., Xxxxxxx X. France, Manex Group, Xxxxxx
Xxxxxxxxx, Xxxx X. Xxxxxxx Trust, CMS, LLC, Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx,
Xxxxx Xxxxxx and Corporate Growth Partners, enforceable in accordance with
their
terms, subject to bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors’ rights generally.
4. Covenants
of the Parties.
(a) Best
Efforts.
Each
party shall use its best efforts to timely satisfy each of the conditions
to be
satisfied by it as provided in Sections 6 and 7 of this Agreement.
(b)
Securities
Laws.
The
Company shall timely file a Form D (and any other equivalent form or notice
required by applicable state law) with respect to the Securities if and as
required under Regulation D and applicable state securities laws and provide
copies thereof to the Buyer upon the Buyer’s request. The Company shall, on or
before the Closing Date, take all action necessary in order to sell the
Securities to the Buyer in compliance with federal and applicable state
securities laws, and shall provide written evidence of such action to the
Buyer
upon the Buyer’s request.
-9-
(c)
Reporting
Status.
So long
as the Buyer beneficially owns any of the Securities, the Company shall (i)
file
all reports required to be filed with the SEC pursuant to the 1934 Act and
(ii)
maintain its status as an issuer required to file reports under the 1934
Act,
even if the 1934 Act or the rules and regulations thereunder would permit
termination of such status.
(d) Reservation
of Shares.
(i)
The
Company shall at all times have authorized and reserved for the purpose of
issuance that number of shares of Common Stock which is sufficient to provide
for the issuance of all of the Conversion Shares and the Warrant Shares.
Prior
to full payment of the Note and complete exercise of the Warrant, the Company
shall not reduce the number of shares of Common Stock reserved for issuance
hereunder without the written consent of the Buyer, except for a reduction
proportionate to a reverse stock split which affects all shares of Common
Stock
equally.
(ii)
If
at any date the Company shall not have authorized and reserved for the purpose
of issuance that number of shares of Common Stock which is sufficient to
provide
for the issuance of all of the Conversion Shares and the Warrant Shares which
could then be issued, within ninety (90) days of such date the Company shall
call and hold a special meeting of its shareholders for the sole purpose
of
increasing the Company’s authorized and unissued shares to an amount sufficient
to correct such deficiency. In connection with such meeting, (i) the Company’s
officers and directors shall (A) recommend to shareholders that they vote
in
favor of such increase in the number of authorized and unissued shares and
(B)
vote all of their shares in favor of such increase and (ii) the Company shall
cause its officers and directors to act in a manner consistent with the forgoing
clause (i).
(e)
Listing
or Quotation.
The
Company shall promptly secure the listing of the Warrant Shares and the
Conversion Shares upon each national securities exchange or automated quotation
system, if any, upon which shares of Common Stock are then listed (subject
to
official notice of issuance), and shall maintain, so long as any other shares
of
Common Stock shall be so listed, such listing of the Warrant Shares and the
Conversion Shares as may exist from time to time under the terms of this
Agreement and/or the Registration Rights Agreement. The Company shall at
all
times comply in all respects with the Company’s reporting, filing and other
obligations under the by-laws or rules of the National Association of Securities
Dealers and the OTCBB or such national securities exchange or other market
on
which the Common Stock may then be quoted or listed, as applicable.
(f)
Prospectus
Delivery Requirement.
The
Buyer understands that the 1933 Act requires delivery of a prospectus relating
to the Conversion Shares and the Warrant Shares in connection with any sale
thereof pursuant to a registration statement under the 1933 Act, and the
Buyer
shall comply with any applicable prospectus delivery requirements of the
1933
Act in connection with any such sale. The Company shall have the right to
rely
upon the Buyer’s agreement contained in this Section 4(f); therefore, with
respect to any resale of the Conversion Shares and the Warrant Shares by
the
Buyer pursuant to a registration statement, any certificate evidencing such
Conversion Shares and Warrant Shares shall not contain a restrictive legend
of
any kind.
-10-
(g)
Intentional
Acts or Omissions.
Neither
party shall intentionally perform or fail to perform any act that, if performed
or omitted to be performed, would prevent or excuse the performance of this
Agreement or any of the transactions contemplated hereby.
(h)
Expenses.
At the
Closing, the Company agrees to pay to, or at the direction of, the Buyer
an
amount equal to the attorney’s fees and other expenses incurred by Buyer in
connection with the Buyer’s due diligence investigation, document preparation
and escrow for the transactions contemplated by this Agreement.
(i)
Corporate
Status; Taxes.
The
Company shall, at least until the Buyer no longer holds any of the Securities,
maintain its corporate existence in good standing and shall pay all taxes
when
due except for taxes it reasonably disputes.
(j) Use
of
Proceeds.
The
Company shall apply the Purchase Price for general corporate purposes and
the
fees and expenses incurred in this transaction.
(k)
Restrictions
on Debt Payments.
Until
such time as the Note has been paid in full, the Company shall not make any
payment on or with respect to any debt except trade payables, sales tax,
and
interest payments arising after the date of this Agreement with respect to
debt
that is in existence on the date of this Agreement.
(l)
No
Additional Share Issuances.
Until
the Note has been paid in full, unless approved in writing by the Buyer,
the
Company shall not take any action that would cause dilution of the voting
power
of the Pledged Shares, including, but not limited to, the issuance of additional
shares of Common Stock.
5. Legend;
Transfer Instructions; Related Matters.
(a)
Transfer
Agent Instructions.
Promptly
after receiving notice of conversion of the Note or exercise of the Warrant
(as
applicable), and in any event no more than three (3) business days after
a
Mandatory Conversion Date (as defined in the Note) or the Company’s receipt of
such notice of conversion or exercise, whichever is applicable, the Company
shall instruct its transfer agent to issue certificates, registered in the
name
of the Buyer or its permitted nominee, for the Conversion Shares and/or Warrant
Shares in such amounts as are specified in such notice. All such certificates
shall bear the restrictive legend specified in Section 2(g) of this Agreement
only to the extent required by applicable law and as specified in this Agreement
or any documents referenced herein. The Company represents and warrants that
(i)
no instructions will be given by it to its transfer agent other than (A)
the
instructions referred to in this Section 5 and (B) any stop transfer
instructions required to give effect to Section 2(f) hereof in the case of
the
Conversion Shares and Warrant Shares prior to their registration under the
1933
Act and (ii) the Conversion Shares and Warrant Shares shall otherwise be
freely
transferable on the books and records of the Company as and to the extent
permitted by applicable law and provided by this Agreement, the Warrant and
the
Registration Rights Agreement. Nothing in this Section shall affect in any
way
the Buyer’s obligations and agreement to comply with all applicable securities
laws upon resale of the Conversion
Shares and Warrant Shares. If the Buyer (i) provides the Company with an
opinion
of counsel reasonably satisfactory to Company that registration by the Buyer
of
the Note, the Warrant, the Warrant Shares and/or the Conversion Shares is
not
required under the 1933 Act or (ii) transfers any of the Securities to an
affiliate which is an accredited investor (in accordance with the provisions
of
this Agreement) or in compliance with Rule 144, then, in either instance,
the
Company shall permit such transfer and, if applicable, promptly (and in all
events within three (3) trading days) instruct its transfer agent to issue
one
or more certificates in such name and in such denominations as specified
by the
Buyer.
-11-
(b)
Removal
of Legend.
The
Legend shall be removed from any certificate for a Security, and a certificate
for a Security shall be originally issued without the Legend, if, unless
otherwise required by state securities laws, (i) the sale of such Security
is
registered under the 1933 Act, (ii) the holder of such Security provides
the
Company with an opinion by counsel reasonably satisfactory to the Company,
that
is in form, substance and scope reasonably satisfactory to the Company, to
the
effect that a public sale or transfer of such Security may be made without
registration under the 1933 Act or (iii) such holder provides the Company
with
assurances reasonably satisfactory to the Company and its counsel that such
Security can be sold pursuant to Rule 144. The Buyer agrees that its sale
of all
Securities, including those represented by a certificate from which the Legend
has been removed, or which were originally issued without the Legend, shall
be
made only pursuant to an effective registration statement (with delivery
of a
prospectus in connection with such sale) or in compliance with an exemption
from
the registration requirements of the 1933 Act. In the event the Legend is
removed from the certificate for any Security or any certificate for a Security
is issued without the Legend and thereafter the effectiveness of a registration
statement covering the sale of such Security is suspended or the Company
determines that a supplement or amendment thereto is required by applicable
securities laws, then upon reasonable advance notice to the holder of such
Security, the Company shall be entitled to require that the Legend be placed
upon such Security, which Legend shall be removed when such Security may
again
be sold pursuant to an effective registration statement or Rule 144 or such
holder provides the opinion with respect thereto described in clause (ii)
above.
(c)
Conversion
of the Note.
The Note
is convertible as provided therein. In the event of a conversion, the Company
shall deliver the certificate(s) representing the shares of Common Stock
issuable upon conversion of the Note to the Buyer or its designee via overnight
courier within three (3) business days after the Optional Conversion Date
(as
defined in the Note) or Mandatory Conversion Date, as applicable (with respect
to each such conversion, the “Deadline”). Time is of the essence with respect to
the requirements of the immediately preceding sentence.
(d)
Exercise
of Warrant.
The
Buyer shall have the right to exercise the Warrant by delivering via facsimile
an executed and completed Notice of Exercise (as attached to the Warrant)
to the
Company and delivering within three (3) business days thereafter the original
Notice of Exercise and the original Warrant being exercised (if required
by the
Company) by overnight courier to the Company. Each date on which a Notice
of
Exercise is faxed to the Company in accordance with the provisions hereof
shall
be deemed an “Exercise Date.” The Company will transmit the certificate(s)
representing the shares of Common Stock issuable upon exercise of the Warrant
(along with
a
replacement Warrant representing the amount of said Warrant not so exercised,
if
applicable) to the Buyer or its designee via overnight courier within three
(3)
business days after the relevant Exercise Date (with respect to each exercise,
the “Deadline”). Time is of the essence with respect to the requirements of the
immediately preceding sentence.
-12-
(e)
Injunctive
Relief for Breach.
The
Company acknowledges that a breach of its obligations under Sections 5(a),
5(b),
5(c) and/or 5(d) above will cause irreparable harm to the Buyer by vitiating
the
intent and purpose of the transactions contemplated hereby. Accordingly,
the
Company agrees that the remedy at law for a breach of its obligations under
such
Sections would be inadequate and agrees that, in the event of a breach or
threatened breach by the Company, the Buyer shall be entitled, in addition
to
all other remedies at law or in equity, to an injunction restraining any
breach
and requiring immediate issuance and/or transfer, without the necessity of
showing economic loss and without any bond or other security being
required.
(f)
Liquidated
Damages for Non-Delivery of Certificates.
In
addition to the provisions of Section 5(e) above, the Company understands
and
agrees that any delay in the issuance of the certificate(s) beyond the Deadline
will result in substantial economic loss and other damages to the Buyer.
As
partial compensation to the Buyer for such loss, the Company agrees to pay
liquidated damages (which the Company acknowledges is not a penalty) to the
Buyer for issuance and delivery of the certificate(s) after the Deadline,
in
accordance with the following schedule (where "No. of Business Days Late"
is
defined as the number of business days beyond five (5) business days from
the
Optional Conversion Date, Mandatory Conversion Date or date of delivery by
the
Buyer to the Company of a facsimile Notice of Exercise (as applicable) or,
if
later, from the date on which all other necessary documentation duly executed
and in proper form required for conversion of the Note or exercise of the
Warrant has been delivered to the Company, but only
if such
necessary documentation has not been delivered to the Company within the
three
(3) business day period after the Optional Conversion Date or facsimile delivery
to the Company of the Notice of Exercise required in this Agreement, whichever
is applicable):
|
No.
of Business Days Late
|
Liquidated Damages (in US$) | |||
|
1
|
$
|
300
|
||
|
2
|
$
|
400
|
||
|
3
|
$
|
500
|
||
|
4
|
$
|
600
|
||
|
5
|
$
|
700
|
||
|
6
|
$
|
800
|
||
|
7
|
$
|
900
|
||
|
8
|
$
|
1,000
|
||
|
9
|
$
|
1,250
|
||
|
10
|
$
|
1,500
|
||
|
11+
|
$ |
1,750
+
$1,000 for each
Business
Day Late beyond 11 days
|
||
-13-
Subject
to the Buyer’s right, in its sole discretion, to add accrued liquidated damages
on to the principal amount of the Note (as provided in the Note), the Company
shall pay the Buyer any liquidated damages incurred under this Section 5(f)
by
certified or cashier's check upon the earlier of (i) the issuance to the
Buyer
of the certificates with respect to which the damages accrued or (ii) each
monthly anniversary of the Optional Conversion Date, Mandatory Conversion
Date
or the receipt by the Company of the Buyer's Notice of Exercise, as the case
may
be. Nothing herein shall limit the Buyer's right to pursue actual damages
for
the Company's failure to issue and deliver certificates to the Buyer in
accordance with the terms of this Agreement or for breach by the Company
of this
Agreement.
6.
Conditions
to the Company’s Obligation to Sell. The
obligation of the Company hereunder to sell the Note and the Warrant at the
Closing is subject to the satisfaction, on or before the Closing Date, of
each
of the following conditions; provided, however, 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
Buyer shall have executed the Agreements and the Guarantor Security Agreement,
and the Escrow Agent shall have delivered such documents or signature pages
thereof (via facsimile or as otherwise provided in the Escrow Agreement),
together with the Purchase Price and such other items as may be required
by this
Agreement, to the Company.
(b)
The
transactions described in the Agreement and Plan of Merger dated July 19,
2005
between the Company, FIIC, Inc., Nicklebys Acquisition Corp. and certain
other
persons shall have been consummated.
(c)
The
representations and warranties of the Buyer in this Agreement shall be true
and
correct in all material respects as of the date 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.
(d)
No
statute, rule, regulation, executive order, decree, ruling or injunction
shall
have been enacted, entered or issued by any court or governmental authority
of
competent jurisdiction or any self- regulatory organization having authority
over the matters contemplated hereby which restricts or prohibits the
consummation of any of the transactions contemplated herein.
7.
Conditions
to the Buyer’s Obligation to Purchase. The
obligation of the Buyer to purchase the Note and Warrant is subject to the
satisfaction, on or before the Closing Date, of each of the following
conditions; provided, however, that these conditions are for the sole benefit
of
the Buyer and may be waived by the Buyer at any time in its sole
discretion:
(a)
The
Company shall have executed the Agreements, the Note and the Warrant, and
the
Escrow Agent shall have delivered such documents and the executed Guaranty,
Guarantor Security Agreement and Pledge Agreements, or signature pages thereof
(via overnight delivery or as otherwise provided in the Escrow Agreement),
together with such other items as may be required by this Agreement, to the
Buyer.
-14-
(b)
The
transactions described in the Agreement and Plan of Merger dated July 19,
2005
between the Company, FIIC, Inc., Nicklebys Acquisition Corp. and certain
other
persons shall have been consummated.
(c)
The
representations and warranties of the Company in this Agreement shall be
true
and correct in all material respects as of the date made and as of 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 may require
a
certificate, executed by the Chief Executive Officer of the Company and 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
Common Stock shall be authorized for quotation on the OTCBB (or listing on
a
national securities exchange or other market) and trading in the Common Stock
on
such market shall not have been suspended by the SEC or other relevant
regulatory agency.
(e)
No
statute, rule, regulation, executive order, decree, ruling or injunction
shall
have been enacted, entered or issued by any court or governmental authority
of
competent jurisdiction or any self- regulatory organization having authority
over the matters contemplated hereby which restricts or prohibits the
consummation of any of the transactions contemplated herein.
8.
Governing
Law; Miscellaneous.
(a)
Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Kansas without regard to the principles of conflict of laws.
Service of process in any civil action relating to or arising out of this
Agreement (including all Exhibits or Schedules or any addenda hereto) or
the
transactions contemplated herein may be accomplished in any manner provided
by
law. The parties hereto agree that a final, non-appealable judgment in any
such
suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful
manner.
(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 signature pages from such
counterparts have been delivered to the Escrow Agent.
(c)
Headings;
Interpretation.
The
headings of this Agreement are for convenience of reference and shall not
form a
part of, or affect the interpretation of this Agreement. As used herein,
the
masculine shall refer to the feminine and neuter, and vice versa, as the
context
may require. As used herein, unless the context clearly requires otherwise,
the
words “herein,” “hereunder” and “hereby,”
shall refer to this entire Agreement and not only to the Section or paragraph
in
which such word appears. If any date specified herein falls on a Saturday,
Sunday or public or legal holiday, the date shall be construed to mean the
next
business day following such Saturday, Sunday or public or legal holiday.
For
purposes of this Agreement, a “business day” is any day other than a Saturday,
Sunday or public or legal holiday. Each party intends that this Agreement
be
deemed and construed to have been jointly prepared by the parties. As a result,
the parties agree that any uncertainty or ambiguity existing herein shall
not be
interpreted against either of them.
-15-
(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 in that jurisdiction
or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e)
Entire
Agreement; Amendments.
This
Agreement and the documents referenced herein (which are incorporated herein
by
reference) contain the entire understanding of the parties with respect to
the
matters covered herein and supercede all prior agreements, negotiations and
understandings, written or oral, with respect to such subject matter. Except
as
specifically set forth herein, neither the Company nor the Buyer makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement shall be waived or amended other than by an
instrument in writing signed by the party to be charged with enforcement.
No
delay or omission of either party hereto in exercising any right or remedy
hereunder shall constitute a waiver of such right or remedy, and no waiver
as to
any obligation shall operate as a continuing waiver or as a waiver of any
subsequent breach.
(f)
Notices.
Any
notices required or permitted to be given under the terms of this Agreement
shall be in writing and sent by U. S. Mail or delivered personally or by
overnight courier or via facsimile (if via facsimile, to be followed within
one
(1) business day by an original of the notice document via overnight courier)
and shall be effective (i) five (5) days after being placed in the mail,
if
mailed, certified or registered, return receipt requested, (ii) upon receipt,
if
delivered personally or (iii) one (1) day after facsimile transmission or
delivery to a courier service for overnight delivery, in each case properly
addressed to the party to receive the same. The addresses for such
communications shall be as follows:
If
to the
Company:
Xxxxxxxxx.xxx,
Inc.
(FIIC
Holdings, Inc. upon completion of the planned
reincorporation
and name change)
0000
Xxxxxx Xxxx
Xxxxxxxx,
Xxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxx X. France
-16-
If
to the
Buyer:
Oceanus
Value Fund, L.P.
000
Xxxxx
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxx X. Xxxxxxx
Each
party shall provide written notice to the other party of any change in
address.
(g)
Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted 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 shall not be unreasonably
withheld) and, in any event, any assignee of the Buyer shall be an accredited
investor (as defined in Regulation D), in the written opinion of counsel
who is
reasonably satisfactory to the Company and in form, substance and scope
reasonably satisfactory to the Company. Notwithstanding the foregoing, if
applicable, the Buyer may assign its rights hereunder to any of its
“affiliates,” as that term is defined in Rule 405 of the 1933 Act, without the
consent of the Company; provided, however, that (i) any such assignment shall
not release the Buyer from its obligations hereunder unless such obligations
are
assumed by such affiliate and (ii) no such assignment shall be made unless
it is
made in accordance with any applicable securities laws. Any request for consent
to an assignment made hereunder by the Buyer shall be accompanied by a legal
opinion in form, substance and scope reasonably satisfactory to the Company
that
such assignment is proper under applicable law. Notwithstanding anything
herein
to the contrary, the Buyer may pledge all or any part of the Securities as
collateral for a bona fide loan pursuant to a security agreement with a third
party lender, and such pledge shall not be considered an assignment in violation
of this Agreement so long as it is made in compliance with all applicable
laws.
(h)
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.
(i)
Survival.
Unless
this Agreement is terminated under Section 8(l) below, the representations
and
warranties of the Company and the Buyer contained herein, and the agreements
and
covenants set forth herein, shall survive the Closing.
(j)
Publicity.
The
Company and the Buyer shall have the right to review, before issuance by
the
other, any press releases or other public statements with respect to the
transactions contemplated hereby; provided, however, that the Buyer and it
affiliates shall be entitled, without prior consultation with or approval
of the
Company, to publish a “tombstone”describing the financing provided pursuant to
this Agreement.
(k) Further
Assurance.
Each
party shall do and perform, or cause to be done and performed, at its expense,
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.
-17-
(l)
Termination.
In the
event that the Closing shall not have occurred on or before February 28,
2006,
this Agreement may be terminated at any time thereafter by written notice
from
one party to the other. Such termination shall not be the sole remedy for
a
breach of this Agreement by the non-breaching party, and each party shall
retain
all of its rights hereunder at law or in equity. Notwithstanding anything
herein
to the contrary, a party whose breach of a covenant or representation and
warranty or failure to satisfy a condition prevented the Closing shall not
be
entitled to terminate this Agreement.
(m)
Remedies.
No
provision of this Agreement providing for any specific remedy to a party
shall
be construed to limit such party to the specific remedy described, and that
any
other remedy that would otherwise be available to such party at law or in
equity
shall also be available. The parties also intend that the rights and remedies
hereunder be cumulative, so that exercise of any one or more of such rights
or
remedies shall not preclude the later or concurrent exercise of any other
rights
or remedies.
(n)
Attorney’s
Fees.
If any
party to this Agreement shall bring any action for relief against the other
arising out of or in connection with this Agreement, in addition to all other
remedies to which the prevailing party may be entitled, the losing party
shall
be required to pay to the prevailing party a reasonable sum for attorney's
fees
and costs incurred in bringing such action and/or enforcing any judgment
granted
therein, all of which shall be deemed to have accrued upon the commencement
of
such action and shall be paid whether or not such action is prosecuted to
judgment. Any judgment or order entered in such action shall contain a specific
provision providing for the recovery of attorney's fees and costs incurred
in
enforcing such judgment. For the purposes of this Section, attorney's fees
shall
include, without limitation, fees incurred with respect to the following:
(i)
post-judgment motions, (ii) contempt proceedings, (iii) garnishment, levy
and
debtor and third party examinations, (iv) discovery and (v) bankruptcy
litigation.
IN
WITNESS WHEREOF, the Buyer and the Company have caused this Agreement to
be duly
executed by their respective authorized persons on the date first written
above.
XXXXXXXXX.XXX,
INC.
By:
/s/ Xxxxx X. France
President
By: /s/
Xxxxxx Xxxxxxxxx
Secretary
-18-
OCEANUS
VALUE FUND, L.P.
By:
Oceanus Asset Management, L. L. C.,
General
Partner
By:
/s/ Xxxx X. Xxxxxxx
Xxxx
X.
Xxxxxxx, Member
For
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agree to be bound by the terms of Section
4(d)(ii) above as it relates to them personally.
| /s/ Xxxxx X. France | ||||
|
Xxxxx
X. France, Jr., individually
|
Xxxxxxx
X. France, individually
|
|||
|
Xxxxxx
Xxxxxxxxx, individually
|
Xxxxx
X. Xxxxxxx, individually
|
|||
|
Xxxxx
X. Xxxxxxx, individually
|
Xxxxx
Xxxxxx, individually
|
|||
| MANEX GROUP | XXXX X. XXXXXXX TRUST | |||
| By: |
|
By: |
|
|
| Title: | Title: | |||
| CMS, LLC | CORPORATE GROWTH PARTNERS | |||
| By: |
|
By: |
|
|
| Title: |
|
Title: | ||
-19-
LIST
OF EXHIBITS AND SCHEDULES
Exhibit
A 12%
Senior Secured Convertible Promissory Note
Exhibit
B
Warrant
to Purchase Common Stock
Exhibit
C
Security
Agreement
Exhibit
D
Corporate
Guaranty
Exhibit
E
Guarantor
Security Agreement
Exhibit
F
Form
of
Guaranty, Pledge and Security Agreement
Exhibit
G
Registration
Rights Agreement
Exhibit
H Escrow
Agreement
Schedule
3(c)
Schedule
3(g)
Schedule
3(h)
Schedule
3(j)
Schedule
3(m)
Schedule
3(p)
-20-
