Exhibit 4.38
SUBSCRIPTION AGREEMENT
Dear Subscriber:
You (the "Subscriber") hereby agree to purchase, and Team Communications
Group, Inc., a California corporation (the "Company") hereby agrees to issue and
to sell to the Subscriber, Secured 8% Convertible Notes (the "Notes")
convertible in accordance with the terms thereof into shares of the Company's no
par value common stock (the "Company Shares") Common Stock Purchase Warrants
("Warrants") issuable to the recipients identified on Schedule B hereto, for the
aggregate consideration as set forth on the signature page hereof ("Purchase
Price"). The form of Convertible Note is annexed hereto as Exhibit A. (The
Company Shares included in the Securities (as hereinafter defined) are sometimes
referred to herein as the "Shares" or "Common Stock"). (The Notes, the Company
Shares, the Common Stock issuable upon exercise of the Warrants and the Finder's
Shares (defined hereinafter) are collectively referred to herein as, the
"Securities"). Upon acceptance of this Agreement by the Subscriber, the Company
shall issue and deliver to the Subscriber the Note against payment, by federal
funds wire transfer of the Purchase Price.
The following terms and conditions shall apply to this subscription.
1. Subscriber's Representations and Warranties. The Subscriber hereby
represents and warrants to and agrees with the Company that:
(a) Information on Company. The Subscriber has been furnished with
the Company's Form 10-KSB for the year ended December 31, 2000 as filed with the
Securities and Exchange Commission (the "Commission") together with all
subsequently filed forms 10-QSB, and other publicly available filings made with
the Commission (hereinafter referred to as the "Reports"). In addition, the
Subscriber has received from the Company such other information concerning its
operations, financial condition and other matters as the Subscriber has
requested in writing, and considered all factors the Subscriber deems material
in deciding on the advisability of investing in the Securities (such information
in writing is collectively, the "Other Written Information").
(b) Information on Subscriber. The Subscriber is an "accredited
investor", as such term is defined in Regulation D promulgated by the Commission
under the Securities Act of 1933, as amended (the "1933 Act"), is experienced in
investments and business matters, has made investments of a speculative nature
and has purchased securities of United States publicly-owned companies in
private placements in the past and, with its representatives, has such knowledge
and experience in financial, tax and other business matters as to enable the
Subscriber to utilize the information made available by the Company to evaluate
the merits and risks of and to make an informed investment decision with respect
to the proposed purchase, which represents a speculative investment. The
Subscriber has the authority and is duly and legally qualified to purchase and
own the Securities. The Subscriber is able to bear the risk of
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such investment for an indefinite period and to afford a complete loss thereof.
The information set forth on the signature page hereto regarding the Subscriber
is accurate.
(c) Purchase of Note. On the Closing Date, the Subscriber will
purchase the Note for its own account and not with a view to any distribution
thereof.
(d) Compliance with Securities Act. The Subscriber understands and
agrees that the Securities have not been registered under the 1933 Act, by
reason of their issuance in a transaction that does not require registration
under the 1933 Act (based in part on the accuracy of the representations and
warranties of Subscriber contained herein), and that such Securities must be
held unless a subsequent disposition is registered under the 1933 Act or is
exempt from such registration.
(e) Company Shares Legend. The Company Shares, Finder's Shares and
the shares of Common Stock issuable upon the exercise of the Warrants, shall
bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO TEAM COMMUNICATIONS GROUP, INC. THAT SUCH
REGISTRATION IS NOT REQUIRED."
(f) Warrants Legend. The Warrants shall bear the following legend:
"THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID ACT
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO TEAM COMMUNICATIONS
GROUP, INC. THAT SUCH REGISTRATION IS NOT REQUIRED."
(g) Note Legend. The Note shall bear the following legend:
"THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
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HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THIS NOTE UNDER SAID ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO TEAM COMMUNICATIONS GROUP, INC. THAT SUCH REGISTRATION IS NOT
REQUIRED."
(h) Communication of Offer. The offer to sell the Securities was
directly communicated to the Subscriber. At no time was the Subscriber presented
with or solicited by any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or solicited
or invited to attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.
(i) Correctness of Representations. The Subscriber represents that
the foregoing representations and warranties are true and correct as of the date
hereof and, unless the Subscriber otherwise notifies the Company prior to the
Closing Date (as hereinafter defined), shall be true and correct as of the
Closing Date. The foregoing representations and warranties shall survive the
Closing Date.
2. Company Representations and Warranties. The Company represents and
warrants to and agrees with the Subscriber that:
(a) Due Incorporation. The Company and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the respective jurisdictions of their incorporation and have the requisite
corporate power to own their properties and to carry on their business as now
being conducted. The Company and each of its subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the business, operations
or prospects or condition (financial or otherwise) of the Company.
(b) Outstanding Stock. All issued and outstanding shares of capital
stock of the Company and each of its subsidiaries has been duly authorized and
validly issued and are fully paid and non-assessable.
(c) Authority; Enforceability. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and the Company has full corporate power and
authority necessary to enter into this Agreement and to perform its obligations
hereunder and all other agreements entered into by the Company relating hereto.
(d) Additional Issuances. There are no outstanding agreements or
preemptive or similar rights affecting the Company's common stock or equity and
no outstanding rights, warrants or options to acquire, or instruments
convertible into or
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exchangeable for, or agreements or understandings with respect to the sale or
issuance of any shares of common stock or equity of the Company or other equity
interest in any of the subsidiaries of the Company, except as described in the
Reports or Other Written Information.
(e) Consents. No consent, approval, authorization or order of any
court, governmental agency or body or arbitrator having jurisdiction over the
Company, or any of its affiliates, the NASD, NASDAQ or the Company's
Shareholders is required for execution of this Agreement, and all other
agreements entered into by the Company relating thereto, including, without
limitation issuance and sale of the Securities, and the performance of the
Company's obligations hereunder, except as described in Section 7(g) of this
Agreement.
(f) No Violation or Conflict. Assuming the representations and
warranties of the Subscriber in Paragraph 1 are true and correct and the
Subscriber complies with its obligations under this Agreement, neither the
issuance and sale of the Securities nor the performance of its obligations under
this Agreement and all other agreements entered into by the Company relating
thereto by the Company will:
(i) violate, conflict with, result in a breach of, or
constitute a default (or an event which with the giving of notice or the lapse
of time or both would be reasonably likely to constitute a default) under (A)
the certificate of incorporation, charter or bylaws of the Company or any of its
affiliates, (B) to the Company's knowledge, any decree, judgment, order, law,
treaty, rule, regulation or determination applicable to the Company or any of
its affiliates of any court, governmental agency or body, or arbitrator having
jurisdiction over the Company or any of its affiliates or over the properties or
assets of the Company or any of its affiliates, (C) the terms of any bond,
debenture, note or any other evidence of indebtedness, or any agreement, stock
option or other similar plan, indenture, lease, mortgage, deed of trust or other
instrument to which the Company or any of its affiliates is a party, by which
the Company or any of its affiliates is bound, or to which any of the properties
of the Company or any of its affiliates is subject, or (D) the terms of any
"lockup" or similar provision of any underwriting or similar agreement to which
the Company, or any of its affiliates is a party; or
(ii) result in the creation or imposition of any lien, charge or
encumbrance upon the Securities or any of the assets of the Company, or any of
its affiliates.
(g) The Securities. The Securities upon issuance:
(i) are, or will be, free and clear of any security interests,
liens, claims or other encumbrances, subject to restrictions upon transfer under
the 1933 Act and State laws;
(ii) have been, or will be, duly and validly authorized and on
the date of issuance and on the Closing Date, as hereinafter defined, and the
date the Note is converted, and the Warrants are exercised, the Securities will
be duly and validly issued, fully paid and nonassessable (and if registered
pursuant to the 1933 Act, and resold pursuant to an effective registration
statement will be free trading and unrestricted, provided that the Subscriber
complies with the Prospectus delivery requirements);
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(iii) will not have been issued or sold in violation of any
preemptive or other similar rights of the holders of any securities of the
Company; and
(iv) will not subject the holders thereof to personal
liability by reason of being such holders.
(h) Litigation. There is no pending or, to the best knowledge of the
Company, threatened action, suit, proceeding or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over the Company,
or any of its affiliates that would affect the execution by the Company or the
performance by the Company of its obligations under this Agreement, and all
other agreements entered into by the Company relating hereto. Except as
disclosed in the Reports or Other Written Information, there is no pending or,
to the best knowledge of the Company, threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or arbitrator
having jurisdiction over the Company, or any of its affiliates.
(i) Reporting Company. The Company is a publicly held company subject
to reporting obligations pursuant to Sections 15(d) and 13 of the Securities
Exchange Act of 1934, as amended (the "1934 Act") and has a class of common
shares registered pursuant to Section 12(g) of the 1934 Act. The Company's
common stock is trading on the NASDAQ National Market System ("NMS"). Pursuant
to the provisions of the 1934 Act, the Company has filed all reports and other
materials required to be filed thereunder with the Securities and Exchange
Commission during the preceding twelve months except as set forth in the
Reports.
(j) No Market Manipulation. The Company has not taken, and will not
take, directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the price of
the common stock of the Company to facilitate the sale or resale of the
Securities or affect the price at which the Securities may be issued.
(k) Information Concerning Company. The Reports and Other Written
Information contain all material information relating to the Company and its
operations and financial condition as of their respective dates which
information is required to be disclosed therein. Since the date of the financial
statements included in the Reports, and except as modified in the Other Written
Information, there has been no material adverse change in the Company's
business, financial condition or affairs not disclosed in the Reports. The
Reports and Other Written Information do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(l) Dilution. The number of Shares issuable upon conversion of the
Note may increase substantially in certain circumstances, including, but not
necessarily limited to, the circumstance wherein the trading price of the Common
Stock declines prior to conversion of the Note. The Company's executive officers
and directors have studied and fully understand the nature of the Securities
being sold hereby and recognize that they have a potential dilutive
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effect. The board of directors of the Company has concluded, in its good faith
business judgment that such issuance is in the best interests of the Company.
The Company specifically acknowledges that its obligation to issue the Shares
upon conversion of the Note and exercise of the Warrants is binding upon the
Company and enforceable, except as otherwise described in this Subscription
Agreement or the Note, regardless of the dilution such issuance may have on the
ownership interests of other shareholders of the Company.
(m) Stop Transfer. The Securities are restricted securities as of the
date of this Agreement. The Company will not issue any stop transfer order or
other order impeding the sale and delivery of the Securities, except as may be
required by federal securities laws.
(n) Defaults. Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or ByLaws. Neither the Company nor
any of its subsidiaries is (i) in default under or in violation of any other
material agreement or instrument to which it is a party or by which it or any of
its properties are bound or affected, which default or violation would have a
material adverse effect on the Company, (ii) in default with respect to any
order of any court, arbitrator or governmental body or subject to or party to
any order of any court or governmental authority arising out of any action, suit
or proceeding under any statute or other law respecting antitrust, monopoly,
restraint of trade, unfair competition or similar matters, or (iii) to its
knowledge in violation of any statute, rule or regulation of any governmental
authority which violation would have a material adverse effect on the Company.
(o) 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 that would cause the offering of the
Securities pursuant to this Agreement to be integrated with prior offerings by
the Company for purposes of the 1933 Act or any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of
The NASDAQ National Market ("NASDAQ National Market"), as applicable, nor will
the Company or any of its affiliates or subsidiaries take any action or steps
that would cause the offering of the Securities to be integrated with other
offerings. The Company has not conducted and will not conduct any offering other
than the transactions contemplated hereby that will be integrated with the
issuance of the Securities for purposes of Rule 4310 of the NASDAQ Stock Market,
Inc.'s Marketplace Rules.
(p) No General Solicitation. Neither the Company, nor any of its
affiliates, nor to its knowledge, any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Act) in connection with the offer or sale of
the Securities.
(q) Listing. The Company's common stock is quoted on, and listed for
trading on NMS. Except as disclosed in the Other Written Information, the
Company has not received any oral or written notice from NASDAQ that its Common
Stock will be delisted from NMS or that the Common Stock does not meet all
requirements for the continuation of such listing, except as described on
Schedule 2(q) hereto.
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(r) No Undisclosed Liabilities. The Company has no liabilities or
obligations which are material, individually or in the aggregate, which are not
disclosed in the Reports and Other Written Information, other than those
incurred in the ordinary course of the Company's businesses since December 31,
2000 and which, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on the Company's financial condition.
(s) No Undisclosed Events or Circumstances. Since December 31, 2000,
no event or circumstance has occurred or exists with respect to the Company or
its businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed in the Reports.
(t) Capitalization. The authorized and outstanding capital stock of
the Company as of the date of this Agreement and the Closing Date are set forth
on Schedule 2(t) hereto. Except as set forth in the Reports and Other Written
Information, there are no options, warrants, or rights to subscribe to,
securities, rights or obligations convertible into or exchangeable for or giving
any right to subscribe for any shares of capital stock of the Company. All of
the outstanding shares of Common Stock of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable.
(u) Correctness of Representations. The Company represents that the
foregoing representations and warranties are true and correct as of the date
hereof in all material respects, will be true and correct as of the Closing
Date, and, unless the Company otherwise notifies the Subscriber prior to the
Closing Date, shall be true and correct in all material respects as of the
Closing Date. The foregoing representations and warranties shall survive the
Closing Date.
3. Regulation D Offering. This Offering is being made pursuant to the
exemption from the registration provisions of the Securities Act of 1933, as
amended, afforded by Rule 506 of Regulation D promulgated thereunder. On the
Closing Date, the Company will provide an opinion acceptable to Subscriber from
the Company's legal counsel opining on the availability of the Regulation D
exemption as it relates to the offer and issuance of the Securities. A form of
the legal opinion is annexed hereto as Exhibit C. The Company will provide, at
the Company's expense, such other legal opinions in the future as are reasonably
necessary for the conversion of the Note and exercise of the Warrants.
4. Reissuance of Securities. The Company agrees to reissue certificates
representing the Securities without the legends set forth in Sections 1(e) and
1(f) above at such time as (a) the holder thereof is permitted to and disposes
of such Securities pursuant to Rule 144(d) and/or Rule 144(k) under the 1933 Act
in the opinion of counsel reasonably satisfactory to the Company, or (b) upon
resale subject to an effective registration statement after the Securities are
registered under the 0000 Xxx. The Company agrees to cooperate with the
Subscriber in connection with all resales pursuant to Rule 144(d) and Rule
144(k) and provide legal opinions necessary to allow such resales provided the
Company and its counsel receive all reasonably requested written representations
from the Subscriber and selling broker, if any. If
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the Company fails to remove any legend as required by this Section 4 (a "Legend
Removal Failure"), then beginning on the tenth (10th) day following the date
that the Subscriber has requested the removal of the legend and delivered all
items reasonably required to be delivered by the Subscriber, the Company
continues to fail to remove such legend, the Company shall pay to each
Subscriber or assignee holding shares subject to a Legend Removal Failure an
amount equal to one percent (1%) of the Purchase Price of the shares subject to
a Legend Removal Failure per day that such failure continues. If during any
twelve (12) month period, the Company fails to remove any legend as required by
this Section 4 for an aggregate of thirty (30) days, each Subscriber or assignee
holding Securities subject to a Legend Removal Failure may, at its option,
require the Company to purchase all or any portion of the Securities subject to
a Legend Removal Failure held by such Subscriber or assignee at a price per
share equal to 120% of the applicable Purchase Price.
5. Redemption. The Company may not redeem the Securities without the
consent of the holder of the Securities except as otherwise described herein.
6. Fees/Warrants.
(a) The Company shall pay to counsel to the Subscriber its fees of
$15,000 for services rendered to Subscribers in connection with this Agreement
and the other Subscription Agreements for aggregate subscription amounts of up
to $750,000 (the "Offering"). The Company will pay to the Finders identified on
Schedule B hereto in the aggregate 30,000 shares of the common stock of the
Company ("Finder's Shares"). The Finder's Shares must be delivered on the
Closing Date. The legal fees will be payable out of funds held pursuant to a
Funds Escrow Agreement to be entered into by the Company, Subscriber and an
Escrow Agent.
(b) The Company will also issue and deliver on the Closing Date to
the parties identified on Schedule B (sometimes referred to as "Warrant
Recipients") the amount of Warrants set forth on Schedule B. A form of Warrant
is annexed hereto as Exhibit D. The per share "Purchase Price" of Common Stock
as defined in the Warrant shall be $1.56.
(c) All the representations, covenants, warranties, undertakings,
remedies, liquidated damages, indemnification, rights in Section 9 hereof, and
other rights including but not limited to registration rights made or granted to
or for the benefit of the Subscriber are hereby also made and granted to the
Subscribers, Finders and Warrant Recipients in respect of the Finder's Shares,
Warrants and Company Shares issuable upon exercise of the Warrants.
(d) The Company on the one hand, and the Subscriber on the other
hand, agree to indemnify the other against and hold the other harmless from any
and all liabilities to any other persons claiming brokerage commissions or fund
manager's fees except as identified on Schedule B hereto on account of services
purported to have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated hereby and
arising out of such party's actions. Except as set forth on Schedule B hereto,
the Company represents that there are no other parties entitled to receive fees,
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commissions, or similar payments in connection with the offering described in
the Subscription Agreement.
7. Covenants of the Company. The Company covenants and agrees with the
Subscriber as follows:
(a) The Company will advise the Subscriber, promptly after it
receives notice of issuance by the Securities and Exchange Commission, any state
securities commission or any other regulatory authority of any stop order or of
any order preventing or suspending any offering of any securities of the
Company, or of the suspension of the qualification of the Common Stock of the
Company for offering or sale in any jurisdiction, or the initiation of any
proceeding for any such purpose.
(b) The Company shall promptly secure the listing of the Company
Shares, Finder's Shares, and Common Stock issuable upon the exercise of the
Warrants 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 such listing so long as any other shares
of Common Stock shall be so listed. The Company will maintain the listing of its
Common Stock on a Principal Market, and will comply in all respects with the
Company's reporting, filing and other obligations under the bylaws or rules of
the National Association of Securities Dealers ("NASD") and such exchanges, as
applicable. The Company will provide the Subscriber copies of all notices it
receives notifying the Company of the threatened and actual delisting of the
Common Stock from any Principal Market.
(c) The Company shall notify the SEC, NASD and applicable state
authorities, in accordance with their requirements, if any, of the transactions
contemplated by this Agreement, and shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Securities to the Subscriber
and promptly provide copies thereof to Subscriber.
(d) From the Closing Date and until at least two (2) years after the
effectiveness of the Registration Statement on Form S-1 or Form SB-2 or such
other Registration Statement described in Section 10.1(iv) hereof, the Company
will (i) cause its Common Stock to continue to be registered under Sections
12(b) or 12(g) of the Exchange Act, (ii) comply in all respects with its
reporting and filing obligations under the Exchange Act, (iii) comply with all
reporting requirements that is applicable to an issuer with a class of Shares
registered pursuant to Section 12(g) of the Exchange Act, and (iv) comply with
all requirements related to any registration statement filed pursuant to this
Agreement. The Company will not take any action or file any document (whether or
not permitted by the Act or the Exchange Act or the rules thereunder) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under said Acts until the later of(y) two (2) years after
the actual effective date of the Registration Statement on Form SB-2 or such
other Registration Statement described in Section 10.l(iv) hereof, or (z) the
sale by the Subscribers and Subscribers of all the Company Shares and Securities
issuable by the Company pursuant to this Agreement. Until at least two (2) years
after the Warrants have been exercised, the Company will use its commercial best
efforts
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to continue the listing of the Common Stock on the NMS and will comply in all
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of the NASD and NASDAQ.
(e) The Company undertakes to use the proceeds of the Subscriber's
funds for general working capital purposes only, and will not be used as a
dividend, distribution or repayment of any indebtedness owed to any shareholder
or affiliate of the Company nor will the proceeds be used to pay any accrued, or
outstanding salary or compensation. A deviation from such use of proceeds shall
be deemed a material breach of the Company's obligations hereunder.
(f) The Company undertakes to reserve pro rata on behalf of each
holder of a Note or Warrant, from its authorized but unissued Common Stock, at
all times that Notes or Warrants remain outstanding, a number of Common Shares
equal to not less than 200% of the amount of Common Shares necessary to allow
each such holder to be able to convert all such outstanding Notes, at the then
applicable Conversion Price and one Common Share for each Common Share issuable
upon exercise of the Warrants.
(g) The Company and Subscriber agree that until the Company either
obtains shareholder approval of the issuance of the Securities, or an exemption
from NASDAQ's corporate governance rules as they may apply to the Securities,
and an opinion of counsel reasonably acceptable to Subscriber that NASDAQ's
corporate governance rules do not conflict with nor may result in a delisting of
the Company's common stock from the NMS ("xxx Xxxxxxxx") upon the conversion of
the Notes, each Subscriber may not receive upon conversion of the Notes more
than the number of common shares designated on the Signature Page hereto
("Section 7 Shares"). The Company represents that this number of Company Shares
together with the aggregate of such amounts designated for all investors in the
Offering is not greater than 19.9% of the shares of Company's common stock
outstanding on the Closing Date. The Company covenants to obtain the Approval
required pursuant to the NASDAQ's corporate governance rules to allow conversion
of all the Notes and interest thereon. The Company further covenants to file the
preliminary proxy statement relating to the Approval with the Commission on or
before thirty days after the Closing Date ("Proxy Filing Date"). The Company
further covenants to obtain the Approval no later than ninety days after the
Closing Date ("Approval Date"). The Company's failure to (i) file the proxy on
or before the Proxy Filing Date; or (ii) the Company's failure to obtain the
Approval on or before the Approval Date (each being an "Approval Default") shall
be deemed an Event of Default under the Note, but only to the extent the Notes
and interest thereon that may not be converted due to the Company's failure to
obtain such Approval. Anything to the contrary in this Section 7(g)
notwithstanding, there shall be no limitation on the amount of Notes that may be
converted by the Subscriber and the amount of Company Shares that may be issued
upon conversion of the Notes provided the Subscriber elects a Conversion Price
(as defined in the Note) equal to the closing price of the Common Stock on the
Closing Date. The Section 7 Shares shall be allocated first to the Company
Shares issuable upon conversion of the Note and thereafter to the shares
issuable upon exercise of the Warrant.
8. Covenants of the Company and Subscriber Regarding Indemnification.
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(a) The Company agrees to indemnify, hold harmless, reimburse and
defend Subscriber, Subscriber's officers, directors, agents, affiliates, control
persons, and principal shareholders, against any claim, cost, expense,
liability, obligation, loss or damage (including reasonable legal fees) of any
nature, incurred by or imposed upon Subscriber or any such person which results,
arises out of or is based upon (i) any misrepresentation by Company or breach of
any warranty by Company in this Agreement or in any Exhibits or Schedules
attached hereto, or other agreement delivered pursuant hereto; or (ii) after any
applicable notice and/or cure periods, any breach or default in performance by
the Company of any covenant or undertaking to be performed by the Company
hereunder, or any other agreement entered into by the Company and Subscribers
relating hereto.
(b) Subscriber agrees to indemnify, hold harmless, reimburse and
defend the Company and each of the Company's officers and directors at all times
against any claim, cost, expense, liability, obligation, loss or damage
(including reasonable legal fees) of any nature, incurred by or imposed upon the
Company or any such person which results, arises out of or is based upon (i) any
misrepresentation by Subscriber in this Agreement or in any Exhibits or
Schedules attached hereto, or other agreement delivered pursuant hereto; or (ii)
after any applicable notice and/or cure periods, any breach or default in
performance by Subscriber of any covenant or undertaking to be performed by
Subscriber hereunder, or any other agreement entered into by the Company and
Subscribers relating hereto.
(c) The procedures set forth in Section 10.6 shall apply to the
indemnifications set forth in Sections 8(a) and 8(b) above.
9.1. Conversion of Note.
(a) Upon the conversion of the Note or part thereof, the Company
shall, at its own cost and expense, take all necessary action (including the
issuance of an opinion of counsel) to assure that the Company's transfer agent
shall issue stock certificates in the name of Subscriber (or its nominee) or
such other persons as designated by Subscriber and in such denominations to be
specified at conversion representing the number of shares of common stock
issuable upon such conversion. The Company warrants that no instructions other
than these instructions have been or will be given to the transfer agent of the
Company's Common Stock and that the Shares will be unlegended, free-trading, and
freely transferable, and will not contain a legend restricting the resale or
transferability of the Company Shares provided the Shares are being sold
pursuant to an effective registration statement covering the Shares to be sold
or are otherwise exempt from registration when sold.
(b) Subscriber will give notice of its decision to exercise its right
to convert the Note or part thereof by telecopying an executed and completed
Notice of Conversion (as defined in the Note) to the Company via confirmed
telecopier transmission. The Subscriber will not be required to surrender the
Note until the Note has been fully converted or satisfied. Each date on which a
Notice of Conversion is telecopied to the Company in accordance with the
provisions hereof shall be deemed a Conversion Date. The Company will or cause
the transfer agent to transmit the Company's Common Stock certificates
representing the Shares issuable upon conversion of the Note to the Subscriber
via express courier for receipt by such Subscriber
11
within three (3) business days after receipt by the Company of the Notice of
Conversion (the "Delivery Date"). A Note representing the balance of the Note
not so converted will be provided to the Subscriber, if requested by Subscriber.
To the extent that a Subscriber elects not to surrender a Note for reissuance
upon partial payment or conversion, the Subscriber hereby indemnifies the
Company against any and all loss or damage attributable to a third-party claim
in an amount in excess of the actual amount then due under the Note.
(c) The Company understands that a delay in the delivery of the
Shares in the form required pursuant to Section 9 hereof, or the Mandatory
Redemption Amount described in Section 9.2 hereof, beyond the Delivery Date or
Mandatory Redemption Payment Date (as hereinafter defined) could result in
economic loss to the Subscriber. As compensation to the Subscriber for such
loss, the Company agrees to pay late payments to the Subscriber for late
issuance of Shares in the form required pursuant to Section 9 hereof upon
Conversion of the Note or late payment of the Mandatory Redemption Amount, in
the amount of $100 per business day after the Delivery Date or Mandatory
Redemption Payment Date, as the case may be, for each $10,000 of Note principal
amount being converted or redeemed. The Company shall pay any payments incurred
under this Section in immediately available funds upon demand. Furthermore, in
addition to any other remedies which may be available to the Subscriber, in the
event that the Company fails for any reason to effect delivery of the Shares by
the Delivery Date or make payment by the Mandatory Redemption Payment Date, the
Subscriber will be entitled to revoke all or part of the relevant Notice of
Conversion or rescind all or part of the notice of Mandatory Redemption by
delivery of a notice to such effect to the Company whereupon the Company and the
Subscriber shall each be restored to their respective positions immediately
prior to the delivery of such notice, except that late payment charges described
above shall be payable through the date notice of revocation or rescission is
given to the Company.
(d) Nothing contained herein or in any document referred to herein
or delivered in connection herewith shall be deemed to establish or require the
payment of a rate of interest or other charges in excess of the maximum
permitted by applicable law. In the event that the rate of interest or dividends
required to be paid or other charges hereunder exceed the maximum permitted by
such law, any payments in excess of such maximum shall be credited against
amounts owed by the Company to the Subscriber and thus refunded to the Company.
9.2. Mandatory Redemption. In the event the Company is prohibited from
issuing Shares, or fails to timely deliver Shares on a Delivery Date, or upon
the occurrence of an Event of Default (as defined in the Note) or for any reason
other than pursuant to the limitations set forth in Section 9.3 hereof, then at
the Subscriber's election, the Company must pay to the Subscriber ten (10)
business days after request by the Subscriber or on the Delivery Date (if
requested by the Subscriber) a sum of money determined by (i) multiplying up to
the outstanding principal amount of the Note designated by the Subscriber by
130%, or (ii) multiplying the number of Shares otherwise deliverable upon
conversion of an amount of Note principal and/or interest designated by the
Subscriber (with the date of giving of such designation being a Deemed
Conversion Date) at the then Conversion Price that would be in effect on the
Deemed Conversion Date by the highest closing price of the Common Stock on the
principal market from the Deemed Conversion Date until the day prior to the
receipt of the Mandatory Redemption Payment, whichever is greater, together with
accrued but unpaid interest thereon ("Mandatory
12
Redemption Payment"). Notwithstanding the foregoing, provided the proxy
statement described in Section 7(g) is filed by the Proxy Filing Date and
further provided all of the Company's officers and directors vote Common Shares
owned by them in favor of the Approval, the Mandatory Redemption Payment shall
be 100% of the principal amount of the Note designated by the Subscriber
together with accrued but unpaid interest if the event giving rise to the
Mandatory Redemption Payment is a consequence exclusively of the Company's
failure to obtain the Approval of its shareholders as contemplated by Section
7(g) hereof. The Mandatory Redemption Payment must be received by the Subscriber
on the same date as the Company Shares otherwise deliverable or within ten (10)
business days after request, whichever is sooner ("Mandatory Redemption Payment
Date"). Upon receipt of the Mandatory Redemption Payment, the corresponding Note
principal and interest will be deemed paid and no longer outstanding.
9.3. Maximum Conversion. The Subscriber shall not be entitled to convert
on a Conversion Date that amount of the Note in connection with that number of
shares of Common Stock which would be in excess of the sum of (i) the number of
shares of Common Stock beneficially owned by the Subscriber and its affiliates
on a Conversion Date, and (ii) the number of shares of Common Stock issuable
upon the conversion of the Note with respect to which the determination of this
provision is being made on a Conversion Date, which would result in beneficial
ownership by the Subscriber and its affiliates of more than 9.99% of the
outstanding shares of Common Stock of the Company on such Conversion Date. For
the purposes of the provision to the immediately preceding sentence, beneficial
ownership shall be determined in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended, and Regulation 13d-3 thereunder. Subject to
the foregoing, the Subscriber shall not be limited to aggregate conversions of
only 9.99% and aggregate conversion by the Subscriber may exceed 9.99%. The
Subscriber may void the conversion limitation described in this Section 9.3 upon
75 days prior written notice to the Company. The Subscriber may allocate which
of the equity of the Company deemed beneficially owned by the Subscriber shall
be included in the 9.99% amount described above and which shall be allocated to
the excess above 9.99%.
9.4. Injunction - Posting of Bond. In the event a Subscriber shall elect
to convert a Note or part thereof, the Company may not refuse conversion based
on any claim that such Subscriber or any one associated or affiliated with such
Subscriber has been engaged in any violation of law, or for any other reason,
unless, an injunction from a court, on notice, restraining and or enjoining
conversion of all or part of said Note shall have been sought and obtained and
the Company posts a surety bond for the benefit of such Subscriber in the amount
of 130% of the amount of the Note, which is subject to the injunction, which
bond shall remain in effect until the completion of arbitration litigation of
the dispute and the proceeds of which shall be payable to such Subscriber to the
extent Subscriber obtains judgment.
9.5. Buy-In. In addition to any other rights available to the Subscriber,
if the Company fails to deliver to the Subscriber such shares issuable upon
conversion of a Note by the Delivery Date and if ten (10) days after the
Delivery Date the Subscriber purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by such
Subscriber of the Common Stock which the Subscriber anticipated receiving upon
such conversion (a "Buy-In"), then the Company shall pay in cash to the
Subscriber (in addition to
13
any remedies available to or elected by the Subscriber) the amount by which (A)
the Subscriber's total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased exceeds (B) the aggregate principal
and/or interest amount of the Note for which such conversion was not timely
honored, together with interest thereon at a rate of 15% per annum, accruing
until such amount and any accrued interest thereon is paid in full (which amount
shall be paid as liquidated damages and not as a penalty). For example, if the
Subscriber purchases shares of Common Stock having a total purchase price of
$11,000 to cover a Buy-In with respect to an attempted conversion of $10,000 of
note principal and/or interest, the Company shall be required to pay the
Subscriber $1,000, plus interest. The Subscriber shall provide the Company
written notice indicating the amounts payable to the Subscriber in respect of
the Buy-In.
9.6 Adjustments. The Conversion Price and amount of Shares issuable upon
conversion of the Notes and Put Notes shall be adjusted consistent with
customary anti-dilution adjustments.
9.7. Optional Redemption.
(a) The Company will have the option of redeeming any outstanding
Notes ("Optional Redemption") by paying to the Subscriber a sum of money equal
to 120% of the principal amount of the Note together with accrued but unpaid
interest thereon and any and all other sums due, accrued or payable to the
Subscriber arising under this Subscription Agreement, Note or any other document
delivered herewith ("Redemption Amount") outstanding on the day notice of
redemption ("Notice of Redemption) is given to a Subscriber ("Redemption Date").
A Notice of Redemption may not be given in connection with any portion of Note
for which notice of conversion has been given by the Subscriber at any time
before receipt of a Notice of Redemption. The Subscriber may elect within five
(5) business days after receipt of a Notice of Redemption to give the Company
Notice of Conversion in connection with some or all of the Note principal and
interest which was the subject of the Notice of Redemption provided the
Conversion Price elected by the Subscriber is the Maximum Base Price set forth
in Section 2.1(b)(i) of the Note. A Notice of Redemption must be accompanied by
a certificate signed by the chief executive officer or chief financial officer
of the Company stating that the Company has on deposit and segregated ready
funds equal to the Redemption Amount. The Redemption Amount must be paid in good
funds to the Subscriber no later than the seventh (7th) business day after the
Redemption Date ("Optional Redemption Payment Date"). On the Optional Redemption
Payment Date, the Company must deliver one common stock purchase warrant for
each $3.00 of Redemption Amount ("Redemption Warrant"). The Redemption Warrant
will be identical to the Warrant except that the "Purchase Price" shall be $1.00
per share of Common Stock and the holder of the Redemption Warrant shall have
only "piggyback" registration rights as described in Section 10.1(ii) of this
Agreement in relation to the shares of Common Stock issuable upon exercise of
the Redemption Warrant. In the event the Company fails to pay the Redemption
Amount by the Optional Redemption Payment Date, then the Redemption Notice will
be null and void and the Company will thereafter have no further right to effect
an Optional Redemption, and at the Subscription's election, the Redemption
Amount will be deemed a Mandatory Redemption Payment and the Optional Redemption
Payment Date will be deemed a Mandatory Redemption Payment Date. Such failure
will also be deemed an
14
Event of Default under the Note. Any Notice of Redemption must be given to all
holders of Notes issued in connection with the Offering, in proportion to their
holdings of Note principal on a Redemption Date. A Notice of Redemption may be
given by the Company, provided (i) no Event of Default, as described in the Note
shall have occurred or be continuing; (ii) the Company Shares issuable upon
conversion of the full outstanding Note principal are included for unrestricted
resale in a registration statement effective as of the Redemption Date; and
(iii) the Conversion Price for each of the ten (10) trading days preceding the
Redemption Date is less than $.80. Note proceeds may not be used to effect an
Optional Redemption.
(b) In the event the Company obtains a commitment from a
commercial lender to refinance its current bank debt and receive not less than
$4,000,000 of bank financing ("Bank Refinancing"), then the Redemption Amount
shall be 110% of the principal amount of the Note together with accrued but
unpaid interest thereon and any and all other sums due, accrued or payable to
the Subscriber arising under this Subscription Agreement, Note or any other
document delivered herewith outstanding on the Redemption Date. However, the
Subscriber may, within five (5) business days after receipt of the Notice of
Redemption, reject the Notice of Redemption given by the Company in connection
with the Bank Refinancing and instead agree to subordinate the security interest
described in Section 12 hereof to a security interest to be granted to the bank
providing the funds or credit in the Bank Refinancing.
9.8. Redemption. The Company may not redeem the Securities without the
consent of the holder of the Securities except as otherwise described herein.
10.1. Registration Rights. The Company hereby grants the following
registration rights to holders of the Securities.
(i) On one occasion, for a period commencing 91 days after the
Closing Date, but not later than three years after the Closing Date ("Request
Date"), the Company, upon a written request therefor from any record holder or
holders of more than 50% of the aggregate of the Company's Shares issued and
issuable upon Conversion of the Notes (the Common Stock issued or issuable upon
conversion of the Notes or issuable by virtue of ownership of the Note, issuable
upon exercise of the Warrants and the Finder's Shares being, the "Registrable
Securities"), shall prepare and file with the SEC a registration statement under
the Act covering the Registrable Securities which are the subject of such
request, unless such Registrable Securities are the subject of an effective
registration statement. In addition, upon the receipt of such request, the
Company shall promptly give written notice to all other record holders of the
Registrable Securities that such registration statement is to be filed and shall
include in such registration statement Registrable Securities for which it has
received written requests within 10 days after the Company gives such written
notice. Such other requesting record holders shall be deemed to have exercised
their demand registration right under this Section 10.1(i). As a condition
precedent to the inclusion of Registrable Securities, the holder thereof shall
provide the Company with such information as the Company reasonably requests.
The obligation of the Company under this Section 10.1(i) shall be limited to one
registration statement.
15
(ii) If the Company at any time proposes to register any of its
securities under the Act for sale to the public, whether for its own account or
for the account of other security holders or both, except with respect to
registration statements on Forms X-0, X-0 or another form not available for
registering the Registrable Securities for sale to the public, provided the
Registrable Securities are not otherwise registered for resale by the Subscriber
or Holder pursuant to an effective registration statement, each such time it
will give at least 30 days' prior written notice to the record holder of the
Registrable Securities of its intention so to do. Upon the written request of
the holder, received by the Company within 20 days after the giving of any such
notice by the Company, to register any of the Registrable Securities, the
Company will cause such Registrable Securities as to which registration shall
have been so requested to be included with the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
required to permit the sale or other disposition of the Registrable Securities
so registered by the holder of such Registrable Securities (the "Seller"). In
the event that any registration pursuant to this Section 10.1(ii) shall be, in
whole or in part, an underwritten public offering of common stock of the
Company, the number of shares of Registrable Securities to be included in such
an underwriting may be reduced by the managing underwriter if and to the extent
that the Company and the underwriter shall reasonably be of the opinion that
such inclusion would adversely affect the marketing of the securities to be sold
by the Company therein; provided, however, that the Company shall notify the
Seller in writing of any such reduction. Notwithstanding the foregoing
provisions, or Section 10.4 hereof, the Company may withdraw or delay or suffer
a delay of any registration statement referred to in this Section 10.1(ii)
without thereby incurring any liability to the Seller.
(iii) If, at the time any written request for registration is
received by the Company pursuant to Section 10.1(i), the Company has determined
to proceed with the actual preparation and filing of a registration statement
under the 1933 Act in connection with the proposed offer and sale for cash of
any of its securities for the Company's own account, such written request shall
be deemed to have been given pursuant to Section 10.1(ii) rather than Section
10.1(i), and the rights of the holders of Registrable Securities covered by such
written request shall be governed by Section 10.1(ii).
(iv) The Company shall file with the Commission within 30 days
after the Closing Date (the "Filing Date"), and use its reasonable commercial
efforts to cause to be declared effective Form S-1 or SB-2 registration
statement (or such other form that it is eligible to use) in order to register
the Registrable Securities for resale and distribution under the Act. The
registration statement described in this paragraph must be declared effective by
the Commission within 90 days of the Closing Date (as defined herein)
("Effective Date"). The Company will register not less than a number of shares
of Common Stock in the aforedescribed registration statement that is equal to
200% of the Company Shares issuable at the Conversion Price that would be in
effect on the Closing Date or the date of filing of such registration statement
(employing the Conversion Price which would result in the greater number of
Shares), assuming the conversion of 100% of the Notes and one share of Common
Stock for each of the Finder's Shares and shares issuable upon exercise of the
Warrants. The Registrable Securities shall be reserved and set aside exclusively
for the benefit of the Subscriber, Finders and Warrant Recipients, and not
issued, employed or reserved for anyone other than the Subscriber, Finders and
Warrant Recipients. Such registration statement will immediately be amended or
additional
16
registration statements will be immediately filed by the Company as necessary to
register additional Company Shares to allow the public resale of all Common
Stock included in and issuable by virtue of the Registrable Securities. No
securities of the Company other than the Registrable Securities will be included
in the registration statement described in this Section 10.1(iv) except as set
forth in Schedule Section 10.1(iv) hereto.
10.2. Registration Procedures. If and whenever the Company is required by
the provisions hereof to effect the registration of any shares of Registrable
Securities under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as herein provided), and promptly
provide to the holders of Registrable Securities ("Sellers") copies of all
filings and Commission letters of comment;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the latest of: (i) twelve months after the latest Maturity Date of a Note;
(ii) thirty months after the Closing Date; or (iii) until such registration
statement has been effective for a period of not less than 270 days, and comply
with the provisions of the Act with respect to the disposition of all of the
Registrable Securities covered by such registration statement in accordance with
the Seller's intended method of disposition set forth in such registration
statement for such period;
(c) furnish to the Seller, and to each underwriter if any, such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or their disposition of the
securities covered by such registration statement;
(d) use its best efforts to register or qualify the Seller's
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the Seller and in the
case of an underwritten public offering, the managing underwriter shall
reasonably request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such registration
statement with any securities exchange on which the Common Stock of the Company
is then listed;
(f) immediately notify the Seller and each underwriter under such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act, of the happening of any event of which
the Company has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an
17
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(g) make available for inspection by the Seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by the Seller or underwriter,
all publicly available, non-confidential financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all publicly available, non-
confidential information reasonably requested by the seller, underwriter,
attorney, accountant or agent in connection with such registration statement.
10.3. Provision of Documents.
(a) At the request of the Seller, provided a demand for
registration has been made pursuant to Section 10.1(i) or a request for
registration has been made pursuant to Section 10.1(ii), the Registrable
Securities will be included in a registration statement filed pursuant to this
Section 10.
(b) In connection with each registration hereunder, the Seller
will furnish to the Company in writing such information and representation
letters with respect to itself and the proposed distribution by it as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws. In connection with each registration pursuant to Section
10.1(i) or 10.1(ii) covering an underwritten public offering, the Company and
the Seller agree to enter into a written agreement with the managing underwriter
in such form and containing such provisions as are customary in the securities
business for such an arrangement between such underwriter and companies of the
Company's size and investment stature.
10.4. Non-Registration Events. The Company and the Subscriber agree that
the Seller will suffer damages if any registration statement required under
Section 10.1(i) or 10.1(ii) above is not filed within 30 days after written
request by the Holder and not declared effective by the Commission within 90
days after such request [or the Filing Date and Effective Date, respectively, in
reference to the Registration Statement on Form SB-2 or such other form
described in Section 10.1(iv)], and maintained in the manner and within the time
periods contemplated by Section 10 hereof, and it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, if (i) the
Registration Statement described in Sections 10.1(i) or 10.1(ii) is not filed
within 30 days of such written request, or is not declared effective by the
Commission on or prior to the date that is 90 days after such request, or (ii)
the registration statement on Form SB-2 or such other form described in Section
10.1(iv) is not filed on or before the Filing Date or not declared effective on
or before the sooner of the Effective Date, or within five business days of
receipt by the Company of a written or oral communication from the Commission
that the registration statement described in Section 10.1(iv) will not be
reviewed, or (iii) any registration statement described in Sections 10.1(i),
10.1(ii) or 10.1(iv) is filed and declared effective but shall thereafter cease
to be effective (without being succeeded immediately by an additional
registration statement filed and declared effective) for a period of
18
time which shall exceed 30 days in the aggregate per year but not more than 20
consecutive calendar days (defined as a period of 365 days commencing on the
date the Registration Statement is declared effective) (each such event referred
to in clauses (i), (ii) and (iii) of this Section 10.4 is referred to herein as
a "Non-Registration Event"), then, for so long as such Non-Registration Event
shall continue, the Company shall pay, at the Subscriber's option, in cash or
stock at the applicable Conversion Price, as Liquidated Damages to each holder
of any Registrable Securities an amount equal to two (2%) percent per month or
part thereof during the pendency of such Non-Registration Event, of the
principal of the Notes issued in connection with the Offering, whether or not
converted, whether or not converted, then owned of record by such holder or
issuable as of or subsequent to the occurrence of such Non-Registration Event.
Payments to be made pursuant to this Section 10.4 shall be due and payable
within five (5) business days after demand in immediately available funds. In
the event a Mandatory Redemption Payment is demanded from the Company by the
Holder pursuant to Section 9.2 of this Subscription Agreement, then the
Liquidated Damages described in this Section 10.4 shall no longer accrue on the
portion of the Purchase Price underlying the Mandatory Redemption Payment, from
and after the date the Holder receives the Mandatory Redemption Payment. It
shall also be deemed a Non-Registration Event if at any time a Note is
outstanding, there is less than 125% of the amount of Common Shares necessary to
allow full conversion of such Note at the then applicable Conversion Price
registered for unrestricted resale in an effective registration statement.
10.5. Expenses. All expenses incurred by the Company in complying with
Section 10, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including reasonable counsel
fees) incurred in connection with complying with state securities or "blue sky"
laws, fees of the National Association of Securities Dealers, Inc., transfer
taxes, fees of transfer agents and registrars, and costs of insurance are called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of Registrable Securities, including any fees and
disbursements of any special counsel to the Seller, are called "Selling
Expenses". The Seller shall pay the fees of its own additional counsel, if any.
The Company will pay all Registration Expenses in connection with the
registration statement under Section 10. All Selling Expenses in connection with
each registration statement under Section 10 shall be borne by the Seller and
may be apportioned among the Sellers in proportion to the number of shares sold
by the Seller relative to the number of shares sold under such registration
statement or as all Sellers thereunder may agree.
10.6. Indemnification and Contribution.
(a) In the event of a registration of any Registrable Securities
under the Act pursuant to Section 10, the Company will indemnify and hold
harmless the Seller, each officer of the Seller, each director of the Seller,
each underwriter of such Registrable Securities thereunder and each other
person, if any, who controls such Seller or underwriter within the meaning of
the 1933 Act, against any losses, claims, damages or liabilities, joint or
several, to which the Seller, or such underwriter or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
19
fact contained in any registration statement under which such Registrable
Securities was registered under the Act pursuant to Section 10, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable to the Seller to the extent that any such damages
arise out of or are based upon an untrue statement or omission made in any
preliminary prospectus if (i) the Seller failed to send or deliver a copy of the
final prospectus delivered by the Company to the Seller with or prior to the
delivery of written confirmation of the sale by the Seller to the person
asserting the claim from which such damages arise, (ii) the final prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (iii) to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any such Seller, or any such controlling person in
writing specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Registrable
Securities under the Act pursuant to Section 10, the Seller will indemnify and
hold harmless the Company, and each person, if any, who controls the Company
within the meaning of the Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Registrable Securities were
registered under the Act pursuant to Section 10, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company and each such
officer, director, underwriter and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Seller, as such, furnished in writing to the Company by such Seller
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of the Seller hereunder shall be limited to
the gross proceeds received by the Seller from the sale of Registrable
Securities covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is
20
to be made against the indemnifying party hereunder, notify the indemnifying
party in writing thereof, but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to such indemnified
party other than under this Section 10.6(c) and shall only relieve it from any
liability which it may have to such indemnified party under this Section
10.6(c), except and only if and to the extent the indemnifying party is
prejudiced by such omission. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate in
and, to the extent it shall wish, to assume and undertake the defense thereof
with counsel satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 10.6(c) for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected, provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified parties shall have the right to select one separate
counsel and to assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) In order to provide for just and equitable contribution in the
event of joint liability under the Act in any case in which either (i) the
Seller, or any controlling person of the Seller, makes a claim for
indemnification pursuant to this Section 10.6 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this Section 10.6 provides for indemnification in such case, or (ii)
contribution under the Act may be required on the part of the Seller or
controlling person of the Seller in circumstances for which indemnification is
provided under this Section 10.6; then, and in each such case, the Company and
the Seller will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion so that the Seller is responsible only for the portion
represented by the percentage that the public offering price of its securities
offered by the registration statement bears to the public offering price of all
securities offered by such registration statement, provided, however, that, in
any such case, (y) the Seller will not be required to contribute any amount in
excess of the public offering price of all such securities offered by it
pursuant to such registration statement; and (z) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
10.7. Underwriter Liability. Nothing contained in this Agreement or any
document delivered herewith shall require or imply that the Subscriber is or be
an Underwriter as defined in the 1933 Act of 1934 Act, nor a "statutory
underwriter." The Subscriber shall not be
21
required to take any action or assume any liability or obligation which would or
could impose Underwriter or "statutory underwriter" status or liability on the
Subscriber.
11. Offering Restrictions. Except (1) as disclosed in the Reports or
Other Written Information prior to the date of this Subscription Agreement, (ii)
stock or stock options granted to employees or directors of the Company pursuant
to a plan which has been approved by the shareholders of the Company, (iii) non-
financing equity or debt issued in connection with an acquisition of a business
or assets by the Company, and (iv) the issuance by the Company of stock in
connection with the establishment of a joint venture, partnership or licensing
arrangement relating to its business (these exceptions hereinafter referred to
as the "Excepted Issuances"), without the prior written consent of the holders
of a majority of the principal amount of the Notes issued in the Offering, the
Company will not issue any equity, convertible debt or other securities, prior
to the expiration of the later of a period equal to 120 days during which the
registration statement described in Section 10.1(iv) above has been effective.
The Excepted Issuances (other than [i] above) may be issued during the above
described time periods provided such securities are not transferable until after
a time period equal to 120 days during which the registration statement
described in Section 10.1 (iv) above has been effective. The above offering
restriction notwithstanding, the Company may offer and sell within thirty days
of the Closing Date Notes in the principal amount of $250,000 on the same terms
and conditions as the Notes sold in the Offering.
12. Security Interest. The Subscribers will be granted a security
interest in certain assets of the Company to be memorialized in a Security
Agreement. The Company will execute Forms UCC-1 to be filed at the Company's
expense with such states and counties designated by the Subscribers. The Company
will also execute all such documents reasonably necessary in the opinion of
Subscriber to memorialize and further protect the security interest described
above.
13. Miscellaneous.
(a) Notices. All notices or other communications given or made
hereunder shall be in writing and shall be personally delivered or deemed
delivered the first business day after being telecopied (provided that a copy is
delivered by first class mail) to the party to receive the same at its address
set forth below or to such other address as either party shall hereafter give to
the other by notice duly made under this Section: (i) if to the Company, to Team
Communications Group, Inc., 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX
00000, telecopier number: (000) 000-0000, with a copy by telecopier only to
Xxxxxxxxx Xxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx
Xxxxx, Esq., telecopier number: (000) 000-0000, and (ii) if to the Subscriber,
to the name, address and telecopy number set forth on the signature page hereto,
with a copy by telecopier only to Grushko & Xxxxxxx, P.C., 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, telecopier number: (000) 000-0000. Any
notice that may be given pursuant to this Agreement, or any document delivered
in connection with the foregoing may be given by the Subscriber on the first
business day after the observance dates in the United States of America by
Orthodox Jewry of Rosh Hashanah, Yom Kippur, the first two days of the Feast of
Tabernacles, Shemini Atzeret, Simchat Torah, the first two and final two days of
Passover and Pentecost, with such notice to be deemed given and
22
effective, at the election of the Subscriber on a holiday date that precedes
such notice. Any notice received by the Subscriber on any of the aforedescribed
holidays may be deemed by the Subscriber to be received and effective as if such
notice had been received on the first business day after the holiday.
(b) Closing. The consummation of the transactions contemplated
herein shall take place at the offices of Grushko & Xxxxxxx, P.C., 000 Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, upon the satisfaction of all
conditions to Closing set forth in this Agreement. The closing date shall be the
date that subscriber funds representing the net amount due the Company from the
Purchase Price are transmitted by wire transfer to the Company (the "Closing
Date").
(c) Entire Agreement; Assignment. This Agreement represents the
entire agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both parties. No right
or obligation of either party shall be assigned by that party without prior
notice to and the written consent of the other party.
(d) Execution. This Agreement may be executed by facsimile
transmission, and in counterparts, each of which will be deemed an original.
(e) Law Governing this Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to principles of conflicts of laws. Any action brought by either party
against the other concerning the transactions contemplated by this Agreement
shall be brought only in the state courts of New York or in the federal courts
located in the state of New York. Both parties and the individuals executing
this Agreement and other agreements on behalf of the Company agree to submit to
the jurisdiction of such courts and waive trial by jury. The prevailing party
shall be entitled to recover from the other party its reasonable attorney's fees
and costs. In the event that any provision of this Agreement or any other
agreement delivered in connection herewith is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of any agreement.
(f) Specific Enforcement, Consent to Jurisdiction. The Company and
Subscriber acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof or thereof, this being
in addition to any other remedy to which any of them may be entitled by law or
equity. Subject to Section 13(e) hereof, each of the Company and Subscriber
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of such court,
that the suit, action or proceeding is brought in an inconvenient forum or that
the venue of the
23
suit, action or proceeding is improper. Nothing in this Section shall affect or
limit any right to serve process in any other manner permitted by law.
(g) Confidentiality. The Company agrees that it will not disclose
publicly or privately the identity of the Subscriber unless expressly agreed to
in writing by the Subscriber or only to the extent required by law.
(h) Automatic Termination. This Agreement shall automatically
terminate without any further action of either party hereto if the Closing shall
not have occurred by the tenth (10th) business day following the date this
Agreement is accepted by the Subscriber.
[THIS SPACE INTENTIONALLY LEFT BLANK]
24
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:____________________________
Name:__________________________
Title:_________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $250,000.00
-----------
Section 7 Shares: 955,000
-------
ACCEPTED: Dated as of May ___, 2001
ALPHA CAPITAL AKTIENGESELLSCHAFT - Subscriber
A Lichtenstein corporation
Xxxxxxxxx 0, 0000 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxxxx
Fax: 000-00-00000000
By:____________________________
25
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:____________________________
Name:__________________________
Title:_________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $250,000.00
-----------
Section 7 Shares: 955,000
-------
ACCEPTED: Dated as of May ___, 2001
AMRO INTERNATIONAL, S.A. - Subscriber
c/o Ultra Finanz Ltd.
Xxxxxxxxxxxxxxxxxx 0
X.X. Xxx 0000
Xxxxxx, XX-0000, Xxxxxxxxxxx
Fax: 000-000-000-0000
By:____________________________
26
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:_____________________________
Name:___________________________
Title:__________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $125,000.00
-----------
Section 7 Shares: 477,500
-------
ACCEPTED: Dated as of May ___, 2001
THE XXXXXX AND XXXXX XXXXXXXXXX
FAMILY TRUST - Subscriber
A Trust organized in the State of California
0000 Xxxxxxxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
By:___________________________
27
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:____________________________
Name:__________________________
Title:_________________________
Dated: May ___, 2001
ATTEST:
By:___________________________
--------------------------------------------------------------------------------
Purchase Price: $20,000.00
----------
Section 7 Shares: 76,400
------
ACCEPTED: Dated as of May ___, 2001
XXXX XXXX XXXXXXX
00 Xxxxx xxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
By:____________________________
28
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:_____________________________
Name:___________________________
Title:__________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $100,000.00
-----------
Section 7 Shares: 382,000
-------
ACCEPTED: Dated as of May ___, 2001
ARAB COMMERCE BANK LIMITED - Subscriber
X.X. Xxx 000
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
By:____________________________
29
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:_____________________________
Name:___________________________
Title:__________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $120,000.00
-----------
Section 7 Shares: 458,400
-------
ACCEPTED: Dated as of June 14, 2001
XXXXXX VAN VLASSELAER - Subscriber
000/0 Xxxxxx xx X'Xxxxxxxxxxxx
X 0000 Xxxxxxxx - Xxxxxxx
By:____________________________
30
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:_____________________________
Name:___________________________
Title:__________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $120,000.00
-----------
Section 7 Shares: 458,400
-------
ACCEPTED: Dated as of June 14, 2001
GEOFFROY DEL MARMOL - Subscriber
000, xxx Xxxxxxxx Xxx
X 0000 - Xxxxxxxx - Xxxxxxx
By:____________________________
31
Please acknowledge your acceptance of the foregoing Subscription Agreement
by signing and returning a copy to the undersigned whereupon it shall become a
binding agreement between us.
TEAM COMMUNICATIONS GROUP,
INC., A California Corporation
By:_____________________________
Name:___________________________
Title:__________________________
Dated: May ___, 2001
ATTEST:
By:____________________________
--------------------------------------------------------------------------------
Purchase Price: $60,000.00
----------
Section 7 Shares: 229,200
-------
ACCEPTED: Dated as of June 14, 2001
SYBILLE VAN ZUYLEN - Subscriber
000, xxx Xxxxxxxx Xxx
X 0000 Xxxxxxxx - Xxxxxxx
By:____________________________
32
SCHEDULE B TO SUBSCRIPTION AGREEMENT
--------------------------------------------------------------------------------------------------------
FINDERS FINDER'S SHARES
--------------------------------------------------------------------------------------------------------
LIBRA FINANCE, S.A. 20,000 Finder's Shares
X. X. Xxx 0000
Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
--------------------------------------------------------------------------------------------------------
OCEAN MARKETING, INC. 10,000 Finder's Shares
A Florida corporation
c/o Xxxxxxx Xxxxxxx
000 X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxx Xxxxx, XX 00000
Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
WARRANT RECIPIENT SHARES PURCHASABLE UPON
EXERCISE OF WARRANTS
--------------------------------------------------------------------------------------------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT 266,666
A Lichtenstein corporation
Xxxxxxxxx 0, 0000 Xxxxxxxxxxx
Vaduz, Lichtenstein
Fax: 000-00-00000000
--------------------------------------------------------------------------------------------------------
AMRO INTERNATIONAL, S.A. 266,666
c/o Ultra Finanz Ltd.
Xxxxxxxxxxxxxxxxxx 0
X.X. Xxx 0000
Xxxxxx, XX-0000, Xxxxxxxxxxx
Fax: 000-000-000-0000
--------------------------------------------------------------------------------------------------------
THE XXXXXX AND XXXXX XXXXXXXXXX FAMILY TRUST 133,333
A Trust organized in the State of California
0000 Xxxxxxxxx Xxxxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------
OCEAN MARKETING, INC. 200,000
c/o Xxxxxxx Xxxxxxx
000 X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxx Xxxxx, XX 00000
Fax: 000-000-0000
--------------------------------------------------------------------------------------------------------
XXXX XXXX XXXXXXX 21,333
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
--------------------------------------------------------------------------------------------------------
ARAB COMMERCE BANK LIMITED 106,666
X. X. Xxx 000
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------
XXXXXX VAN VLASSELAER 128,000
000/0 Xxxxxx xx X'Xxxxxxxxxxxx
X 0000 Xxxxxxxx - Xxxxxxx
--------------------------------------------------------------------------------------------------------
33
-------------------------------------------------------------------------------------------------------
GEOFFROY DEL MARMOL 128,000
000 Xxx Xxxxxxxx Gay
B 1150 - Brussels - Belgium
--------------------------------------------------------------------------------------------------------
SYBILLE VAN ZUYLEN 64,000
000 Xxx Xxxxxxxx Gay
B 1150 - Brussels - Belgium
--------------------------------------------------------------------------------------------------------
34
Schedule 2(t)
The authorized capital stock of the Company consists of 10,000,000 shares
of preferred stock, no par value, of which no shares are issued and outstanding
and 40,000,000 shares of common stock without par value. As at May 17, 2001, an
aggregate of 14,401,339 shares of common stock are issued and outstanding.
35
