EXHIBIT 4.9
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
December 18, 2003, by and among CAMINOSOFT CORP., a corporation organized under
the laws of the State of California (the "COMPANY"), and the purchasers (the
"PURCHASERS") set forth on the execution pages hereof (the "EXECUTION PAGES").
WITNESSETH:
A. The Company and each Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by 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 "SECURITIES ACT").
B. Each Purchaser desires to purchase, severally and not jointly, subject
to the terms and conditions stated in this Agreement, (i) shares of the
Company's common stock, no par value (the "COMMON STOCK"), in the respective
denominations described on EXHIBIT A attached hereto (the "SCHEDULE OF
PURCHASERS"), and (ii) warrants (in each of the forms attached hereto as EXHIBIT
B-1 and EXHIBIT B-2, including any warrants issued in replacement thereof, the
"WARRANTS"), to acquire shares of Common Stock in the respective denominations
and types described on the Schedule of Purchasers. The shares of Common Stock
issuable upon exercise of or otherwise pursuant to the Warrants are referred to
herein as the "WARRANT SHARES."
C. Contemporaneous with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement in
the form attached hereto as EXHIBIT C (the "REGISTRATION RIGHTS AGREEMENT")
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW, THEREFORE, the Company and each Purchaser hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"AFFILIATE" or "AFFILIATES" means, with respect to any Person, any other
Person that directly or indirectly controls, is controlled by, or is under
common control with, such Person.
"BUSINESS DAY" shall mean any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded is open for business.
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested in the
Company at the Closing pursuant to this Agreement by a Purchaser, as set forth
on the Schedule of Purchasers.
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"LIEN" means any lien, charge, claim, security interest, encumbrance,
right of first refusal or other restriction.
"MATERIAL ADVERSE EFFECT" shall mean an event that (i) adversely affects
the validity, legality or enforceability of any Transaction Document, (ii) has
or results in a material adverse effect on the results of operations, assets,
prospects, business or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) adversely impairs the Company's ability
to perform fully on a timely basis its obligations under any of the Transaction
Documents; provided, that none of the following alone shall be deemed, in and of
itself, to constitute a Material Adverse Effect: (i) a change in the market
price or trading volume of the Common Stock, or (ii) changes in general economic
conditions or changes affecting the industry in which the Company operates
generally (as opposed to Company-specific changes) so long as such changes do
not have a disproportionate effect on the Company and its Subsidiaries taken as
a whole.
"OPTIONS" means any rights, warrants or options to subscribe for or
purchase Common Stock.
"PERSON" means an individual, corporation, partnership, limited liability
company, trust, business trust, association, joint stock company, joint venture,
sole proprietorship, unincorporated organization, governmental authority or any
other form of entity not specifically listed herein.
"PROCEEDING" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"SECURITIES" shall mean the Shares, the Warrants and the Warrant Shares.
"SHARES" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers at the Closing.
"SUBSIDIARY" or "SUBSIDIARIES," when used with respect to subsidiaries of
the Company in Sections 3 or 4 of this Agreement, means or includes only a
"Significant Subsidiary" as defined in Rule 405 of Regulation C under the
Securities Act.
"TRANSACTION DOCUMENTS" means this Agreement (and its Exhibits and
Schedules), the Warrants, the Registration Rights Agreement and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
"TRANSFER AGENT" shall mean the Company's transfer agent (currently US
Stock Transfer Corporation).
2. PURCHASE AND SALE OF SHARES AND WARRANTS.
a. GENERALLY. Except as otherwise provided in this Section 2 and subject
to the satisfaction (or waiver) of the conditions set forth in Section 6 and
Section 7 below, each Purchaser shall purchase from the Company the number of
Shares and Warrants determined as provided in this Section 2, and the Company
shall issue and sell such number of Shares and Warrants to each Purchaser for
such Purchaser's Investment Amount as provided below. The Company's agreement
with each of the Purchasers is a separate agreement, and the sale of the
Securities to each of the Purchasers is a separate sale.
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b. NUMBER OF CLOSING SHARES AND WARRANTS; FORM OF PAYMENT; CLOSING DATE.
(i) On the Closing Date (as defined below), the Company shall sell
and each Purchaser shall buy (A) the number of Shares set forth on the Schedule
of Purchasers for the purchase prices set forth on the Schedule of Purchasers,
and (B) Warrants exercisable for shares of Common Stock equal to the number of
Shares set forth on the Schedules of Purchasers and in the respective forms set
forth thereon. On the Closing Date, each Purchaser shall pay the Company an
amount equal to such Purchaser's Investment Amount.
(ii) On the Closing Date, each Purchaser shall pay its Investment
Amount by wire transfer to the Company, in accordance with the Company's written
wiring instructions (PROVIDED, HOWEVER, that BFSUS Special Opportunities Trust
plc shall have until the close of business on December 23, 2003 to pay its
Investment Amount), against delivery to Xxxxxxxxxxx & Xxxxxxxx LLP of
certificates representing the Shares (no later than the close of business on
December 24, 2003) and duly executed Warrants being purchased by such Purchaser,
and the Company shall deliver such Shares and Warrants against delivery of such
Purchaser's Investment Amount.
(iii) Subject to the satisfaction (or waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of the
sale of the Shares and the Warrants pursuant to this Agreement (the "CLOSING")
shall be 3:00 p.m. Dallas time on December 18, 2003 or such other date or time
as the Purchasers and the Company may mutually agree ("CLOSING DATE"). The
Closing shall he held at the offices of Xxxxxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 or at such other place as
Purchasers and the Company may otherwise mutually agree.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Each Purchaser jointly and not severally represents and warrants to the
Company as follows:
a. PURCHASE FOR OWN ACCOUNT. The Purchaser is purchasing the Securities
for the Purchaser's own account and not with a present view towards the
distribution thereof. The Purchaser understands that the Purchaser must bear the
economic risk of this investment, unless the Securities are registered pursuant
to the Securities Act and any applicable state securities or blue sky laws or an
exemption from such registration is available, and that the Company has no
present intention of registering any such Securities. Notwithstanding anything
in this Section 3(a) to the contrary, by making the foregoing representation,
the Purchaser does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption from
registration under the Securities Act and any applicable state securities laws;
provided, that in the case of any transfer of the Securities pursuant to an
exemption, such transfer is made in accordance with the provisions of Section
3(e).
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b. INFORMATION. The Purchaser has been furnished all materials (excluding
any material nonpublic information) relating to the business, finances and
operations of the Company and its Subsidiaries and materials relating to the
offer and sale of the Securities that have been requested by the Purchaser. The
Purchaser has been afforded the opportunity to ask questions of the Company.
c. GOVERNMENTAL REVIEW. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
d. AUTHORIZATION; ENFORCEMENT. The Purchaser has the requisite power and
authority to enter into and perform its obligations under this Agreement and to
purchase the Shares and the Warrants in accordance with the terms hereof. This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Purchaser and is a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
e. TRANSFER OR RESALE. The Purchaser understands that (i) the Securities
have not been registered under the Securities Act or any state securities laws,
and except as provided in the Registration Rights Agreement, the Securities are
not being registered under the Securities Act or any state securities laws, and
may not be transferred unless (a) subsequently registered thereunder or sold
pursuant to and in accordance with Rule 144 under the Securities Act, or (b) the
Purchaser shall have delivered to the Company an opinion of counsel reasonably
acceptable to the Company (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the effect that
the Securities to be sold or transferred may be sold or transferred under an
exemption from such registration, and (ii) neither the Company nor any other
Person is under any obligation to register such Securities under the Securities
Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder, in each case, other than pursuant to the Registration
Rights Agreement.
f. LEGENDS. The Purchaser understands that the Shares, and until such time
as the Warrants convert to Warrant Shares, the Warrants, may bear a restrictive
legend in substantially the following form:
NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE
SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN
RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), or the securities
laws of any state of the United States. The securities represented
hereby may not be offered or sold in the absence of an effective
registration statement for the securities under applicable
securities laws unless offered, sold or transferred under an
available exemption from the registration requirements of those
laws. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY SUCH SECURITIES.
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Certificates evidencing Securities shall not be required to contain such
legend or any other legend (i) while a registration statement covering the
resale of such Securities is effective under the Securities Act provided the
Purchasers at the time any of the Purchasers request a removal of the legend on
any certificate evidencing all or any portion of such Securities or to transfer
any of the same (or a broker acting on such Purchaser's behalf) provides to the
Company (or to the TRANSFER AGENT on the Company's behalf) reasonable written
assurances to the effect that any of the Shares or Warrant Shares, as the case
may be, sold or to be sold by such Purchasers have been, or will be, sold in
accordance with the plan of distribution set forth in the prospectus and in
compliance with the prospectus delivery requirements under the Securities Act,
or (ii) following any sale of such Securities pursuant to and in accordance with
Rule 144, or (iii) if such Securities are eligible for sale under Rule 144(k),
or (iv) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by
the Staff of the SEC). Following the effective date or at such earlier time as a
legend is no longer required for such Securities, the Company will no later than
three (3) Business Days following the delivery by a Purchaser to the Company or
the TRANSFER AGENT of a legended certificate representing such Securities,
deliver or cause to be delivered to such Purchaser a certificate representing
such Securities that is free from all restrictive and other legends. The Company
may not make any notation on its records or give instructions to any TRANSFER
AGENT of the Company that enlarge the restrictions on transfer set forth in this
Section 3(f).
The Company acknowledges and agrees that a Purchaser may from time to time
pledge or grant a security interest in some or all of the Securities in
connection with a bona fide margin agreement or other loan or financing
arrangement secured by the Securities and, if required under the terms of such
agreement, loan or arrangement, such Purchaser may transfer pledged or secured
Securities to the pledgees or secured parties. Such a pledge or transfer would
not be subject to approval of the Company and no legal opinion of the pledgee,
secured party or pledgor shall be required in connection therewith, but such
legal opinion may be required in connection with a subsequent transfer following
default by the Purchaser transferee of the pledge. Further, no notice shall be
required of such pledge. At the appropriate Purchaser's expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured
party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) of the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.
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g. INVESTOR STATUS. The Purchaser is an "ACCREDITED INVESTOR" within the
meaning of Rule 501 Regulation D under the Securities Act. In the normal course
of its business, it invests in or purchases securities similar to the Securities
and it has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of purchasing the Securities.
h. RESTRICTED SECURITIES. The Purchaser understands that the Securities
are characterized as "restricted securities" under the U.S. federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act only
in certain limited circumstances.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. ORGANIZATION AND QUALIFICATION. Each of the Company and its
Subsidiaries is a corporation duly organized and existing under the laws of the
jurisdiction in which it is incorporated, and has the requisite corporate power
to own its properties and to carry on its business as now being conducted. Each
of the Company and its Subsidiaries 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. The Company has no
direct or indirect Subsidiaries other than those listed in SCHEDULE 4(A). Except
as disclosed in SCHEDULE 4(A), the Company owns, directly or indirectly, all of
the capital stock or comparable equity interests of each Subsidiary free and
clear of any Lien, and all the issued and outstanding shares of capital stock or
comparable equity interests of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights.
b. AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, the Warrants and the Registration Rights Agreement, to issue and sell
the Shares and the Warrants in accordance with the terms hereof and to issue the
Warrant Shares upon exercise of the Warrants in accordance with the terms of the
Warrants; (ii) the execution, delivery and performance of this Agreement, the
Warrants and the Registration Rights Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby
(including, without limitation, the reservation for issuance and issuance of the
Shares and the issuance of the Warrants and the reservation for issuance and
issuance of the Warrant Shares) have been duly authorized by the Company's Board
of Directors and no further consent or authorization of the Company, its Board
of Directors or its shareholders is required; (iii) this Agreement has been duly
executed and delivered by the Company; and (iv) this Agreement constitutes, and,
upon execution and delivery by the Company and the other parties thereto to the
extent required of the Registration Rights Agreement and the Warrants, such
agreements will constitute, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity).
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c. CAPITALIZATION. The capitalization of the Company as of the date hereof
is set forth on SCHEDULE 4(C), including the authorized capital stock, the
number of shares issued and outstanding, the number of shares issuable and
reserved for issuance pursuant to the Company's stock option plans, the number
of shares issuable and reserved for issuance pursuant to securities exercisable
for, or convertible into or exchangeable for any shares of capital stock. All of
such outstanding shares of the Company's capital stock have been, or upon
issuance will be, validly issued, fully paid and nonassessable. Except as set
forth on SCHEDULE 4(C), no shares of capital stock of the Company (including the
Shares and the Warrant Shares) or any of the Subsidiaries are subject to
preemptive rights or any other similar rights of the shareholders of the Company
or any liens or encumbrances. Except for the Securities and as disclosed in
SCHEDULE 4(C), as of the date of this Agreement, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever to which the Company or any of its Subsidiaries is a party
relating to the issuance by the Company or any of its Subsidiaries of securities
or rights convertible into or exercisable or exchangeable for 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 such Subsidiaries, and (ii)
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 Securities Act (except the Registration Rights Agreement). Except as
set forth on SCHEDULE 4(C), there are no securities or instruments containing
anti-dilution or similar provisions that may be triggered by the issuance of the
Securities in accordance with the terms of this Agreement, the Warrants or the
Registration Rights Agreement and the holders of the securities and instruments
listed on such SCHEDULE 4(C) have waived any rights they may have under such
anti-dilution or similar provisions in connection with the issuance of the
Securities in accordance with the terms of this Agreement, the Warrants or the
Registration Rights Agreement. The Company has made available to each Purchaser
true and correct copies of the Company's Articles of Incorporation as in effect
on the date hereof ("ARTICLES OF INCORPORATION"), the Company's By-laws as in
effect on the date hereof (the "BY-LAWS") and all other instruments and
agreements governing securities convertible into or exercisable or exchangeable
for capital stock of the Company, except for stock options granted under any
benefit plan of the Company.
d. ISSUANCE OF SHARES. The Shares are duly authorized and when issued and
paid for in accordance with the terms hereof, will be validly issued, fully paid
and non-assessable, and free from all taxes and Liens (other than those imposed
through acts or omissions of the Purchaser thereof) and will not be subject to
preemptive rights or other similar rights of shareholders of the Company. The
Warrant Shares are duly authorized and reserved for issuance, and, upon exercise
of the Warrants in accordance with the terms thereof, will be validly issued,
fully paid and non-assessable and free from all taxes and Liens (other than
those imposed through acts or omissions of the Purchaser thereof) and will not
be subject to preemptive rights or other similar rights of shareholders of the
Company.
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e. NO CONFLICTS. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company,
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance and
issuance of the Shares and the Warrant Shares and the issuance of the Warrants)
will not (i) conflict with or result in a violation of the Articles of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of any agreement, indenture or instrument to which the Company or
any of its Subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including (assuming the accuracy of the
representations and warranties of the Purchasers) the United States federal and
state securities laws and regulations) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected (except, with respect to clause (ii), for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect). Neither the Company nor any of its Subsidiaries is in violation
of its Articles of Incorporation, By-laws and 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
instrument to which the Company or any of its Subsidiaries is a party, except
for actual or possible violations, defaults or rights as would not, individually
or in the aggregate, have a Material Adverse Effect. The businesses of the
Company and its Subsidiaries are not being conducted in violation of any law,
ordinance or regulation of any governmental entity, except for actual or
possible violations, if any, the sanctions for which either singly or in the
aggregate would not have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the Securities Act (and the
rules promulgated thereunder) and any applicable state securities laws and
assuming the accuracy of the representations and warranties of the Purchasers,
the Company is not required to obtain any consent, approval, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement (including
without limitation the issuance and sale of the Shares and Warrants as provided
hereby), the Warrants (including without limitation the issuance of the Warrant
Shares) or the Registration Rights Agreement, in each case in accordance with
the terms hereof or thereof.
f. SEC DOCUMENTS; FINANCIAL STATEMENTS; CERTAIN ARRANGEMENTS.
(i) Except as set forth on SCHEDULE 4(F)(I), since November 1, 2002,
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 Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and has filed all
registration statements and other documents required to be filed by it with the
SEC pursuant to the Securities Act (all of the foregoing filed prior to the date
hereof, and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being hereinafter
referred to herein as the "SEC DOCUMENTS"). The Company has made publicly
available via the SEC's Electronic Data Gathering, Analysis and Retrieval
(XXXXX) system 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 Exchange Act or the Securities Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, 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 or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Any statements made in any such SEC Documents that are or were
required to be updated or amended under applicable law have been so updated or
amended. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
applicable with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except in the case of
unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements) and fairly present in all material
respects the consolidated financial position of the Company and its Subsidiaries
as of the dates thereof and the results of their operations and cash flows for
the periods then ended (subject, in the case of unaudited statements, to normal
and recurring year-end audit adjustments). Except as set forth 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 SEC Documents 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 SEC Documents, which
liabilities and obligations referred to in clauses (i) and (ii), individually or
in the aggregate, would not have a Material Adverse Effect.
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(ii) The Company does not have any "off-balance sheet arrangements."
For purposes of the preceding sentence, "off-balance sheet arrangement" means
with respect to any Person, any securitization transaction to which it is party
and any other transaction, agreement or other contractual arrangement to which
an entity unconsolidated with that Person is a party, under which it, whether or
not a party to the arrangement, has, or in the future may have: (a) any
obligation under a direct or indirect guarantee or similar arrangement; (b) a
retained or contingent interest in assets transferred to an unconsolidated
entity or similar arrangement; (c) derivatives to the extent that the fair value
thereof is not fully reflected as a liability or asset in the financial
statements; or (d) any obligation or liability, including a contingent
obligation or liability, to the extent that it is not fully reflected in the
financial statements (excluding the footnotes thereto) (for this purpose,
obligations or liabilities that are not fully reflected in the financial
statements (excluding the footnotes thereto) include, without limitation: (i)
obligations that are not classified as a liability according to generally
accepted accounting principles; (ii) contingent liabilities as to which, as of
the date of the financial statements, it is not probable that a loss has been
incurred or, if probable, is not reasonably estimable; or (iii) liabilities as
to which the amount recognized in the financial statements is less than the
reasonably possible maximum exposure to loss under the obligation as of the date
of the financial statements, but exclude contingent liabilities arising out of
litigation, arbitration or regulatory actions (not otherwise related to
off-balance sheet arrangements)). SCHEDULE 4(F)(II) identifies all outstanding
guarantees, letters of credit, performance bonds, assurance bonds, surety
agreements, indemnity agreements and any other legally binding forms of
assurance or guaranty in connection with the business of the Company.
g. ABSENCE OF CERTAIN CHANGES. Since the date of the latest audited
financial statements included within the SEC Documents, except as specifically
disclosed in the SEC Documents, (i) there has been no event, occurrence or
development that, individually or in the aggregate, has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected
in the Company's financial statements pursuant to generally accepted accounting
principles or required to be disclosed in filings made with the SEC, (iii) the
Company has not altered its method of accounting or the identity of its
auditors, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock, and (v) the
Company has not issued any equity securities to any officer, director or
Affiliate, except pursuant to existing Company stock option and stock purchase
plans.
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h. ABSENCE OF LITIGATION. Except as disclosed in the SEC Documents, there
is no action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company, threatened against or affecting the
Company, or any of its Subsidiaries, or any of their directors or officers in
their capacities as such which would have a Material Adverse Effect.
i. INTELLECTUAL PROPERTY. The Company and each of its Subsidiaries owns or
is licensed to use all patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, permits, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) and
other similar rights and proprietary knowledge (collectively, "INTANGIBLES")
necessary for the conduct of its business as now being conducted and as proposed
to be conducted. Except as disclosed in the SEC Documents, neither the Company
nor any of its Subsidiaries has received written notice that it is infringing
upon or in conflict with any third party Intangibles. Except as disclosed in the
SEC Documents, neither the Company nor any of its Subsidiaries has entered into
any consent, indemnification, forbearance to xxx or settlement agreements with
respect to the validity of the Company's or such Subsidiary's ownership or right
to use its Intangibles. The Intangibles are valid and enforceable, and, without
the Company intending to allow such result, no registration relating thereto has
lapsed, expired or been abandoned or canceled or is the subject of cancellation
or other adversarial proceedings, and all applications therefor are pending and
in good standing. The Company has complied with its contractual obligations
relating to the protection of the Intangibles used pursuant to licenses with
such exceptions that would not and will not have a Material Adverse Effect. To
the Company's knowledge, no Person is infringing on or violating the Intangibles
owned or used by the Company.
j. ENVIRONMENT. Except as disclosed in the SEC Documents (i) there is no
environmental liability, nor factors likely to give rise to any environmental
liability, affecting any of the properties of the Company or any of its
Subsidiaries that, individually or in the aggregate, would have a Material
Adverse Effect and (ii) neither the Company nor any of its Subsidiaries has
violated any environmental law applicable to it now or previously in effect,
other than such violations or infringements that, individually or in the
aggregate, have not had and will not have a Material Adverse Effect.
k. TITLE. The Company and each of its Subsidiaries has good title in fee
simple to all real property and good title to all personal property owned by it
which is material to its business, free and clear of all liens, encumbrances and
defects except for such defects in title that, individually or in the aggregate,
would not have a Material Adverse Effect. Any real property and facilities held
under lease by the Company or any of its Subsidiaries are held by the Company or
such Subsidiary under valid, subsisting and enforceable leases with such
exceptions which have not had and will not have a Material Adverse Effect.
10
l. INSURANCE. Except as disclosed in the SEC Documents, the Company and
its Subsidiaries maintain such insurance relating to their business, operations,
assets, key-employees and officers and directors as is appropriate to their
business, assets and operations, in such amounts and against such risks as are
customarily carried and insured against by owners of comparable businesses,
assets and operations, and such insurance coverage will be continued in full
force and effect to and including the Closing Date other than insurance coverage
in respect of which the failure to continue in full force and effect would not
reasonably be expected to have a Material Adverse Effect.
m. NO BROKERS. No brokerage or finder's fees or commissions are or will be
payable by the Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with respect to the
transactions contemplated by this Agreement and the Company has not taken any
action that would cause any Purchaser to be liable for any such fees or
commissions.
n. TAX STATUS. The Company and each of its Subsidiaries has made or filed
all material federal, state and local income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject (unless and
only to the extent that the Company or the applicable Subsidiary has set aside
on its books provisions adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and has set
aside on its books provisions adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no material unpaid taxes claimed to be due by the taxing authority of
any jurisdiction. The Company has not executed a waiver with respect to any
statute of limitations relating to the assessment or collection of any federal,
state or local tax. None of the Company's tax returns have been or is being
audited by any taxing authority.
o. NO GENERAL SOLICITATION. Neither the Company nor to the knowledge of
the Company any Person participating on the Company's behalf in the transactions
contemplated hereby has conducted any "general solicitation" or "general
advertising" as such terms are used in Regulation D, with respect to any of the
Securities being offered hereby.
p. SECURITIES LAWS. Neither the Company, nor any Affiliate of the Company,
nor any Person acting on its behalf or on behalf of such Affiliate, has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security under circumstances that would require
registration of the Securities being offered hereby under the Securities Act or
cause this offering of Securities to be integrated with any prior offering of
securities of the Company for purposes of the Securities Act. Assuming the truth
and accuracy of the Purchasers' representations and warranties, the offer, sale
and delivery of shares of Common Stock upon exercise of the Warrants will be
exempt from the registration requirements of Section 5 of the Securities Act.
q. INTENTIONALLY DELETED.
11
r. DISCLOSURE. All disclosure provided to the Purchasers regarding the
Company, its business and the transactions anticipated hereby, including the SEC
Documents and the Schedules and Exhibits to this Agreement, furnished by or on
behalf of the Company or filed with the SEC, are true and correct and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. No event or
circumstance has occurred or information exists with respect to the Company or
any of its Subsidiaries or its or their business, properties, prospects,
operations or financial conditions, which, under applicable law, rule or
regulation, requires public disclosure or announcement by the Company but which
has not been so publicly announced or disclosed. The Company acknowledges and
agrees that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3.
s. INTERNAL ACCOUNTING CONTROLS. The Company and the Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles consistently applied and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
t. TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. Except as set forth on
SCHEDULE 4(T) or as disclosed in the SEC Documents, none of the officers or
directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner. Since November 1, 2002, the Company
has not (i) extended or maintained credit, arranged for the extension of credit,
or renewed an extension of credit, in the form of a personal loan to or for any
director or executive officer (or equivalent thereof) of the Company, or (ii)
materially modified any term of any such extension or maintenance of credit.
Schedule 4(t) identifies any loan or extension of credit maintained by the
Company or any of its Subsidiaries to which the second sentence of Section
13(k)(1) of the Exchange Act applies.
5. COVENANTS AND OTHER AGREEMENTS.
a. SATISFACTION OF CONDITIONS. The parties shall use their reasonable
efforts to satisfy in a timely manner each of the conditions set forth in
Section 6 and Section 7 of this Agreement.
b. FORM D; BLUE SKY LAWS. The Company agrees to file a Form D with respect
to the Securities as required under Regulation D and to provide a copy thereof
to each Purchaser promptly after such filing. The Company shall, on or before
the Closing Date, take such action as the Company shall reasonably determine is
necessary to qualify the Securities for sale to the Purchasers pursuant to this
Agreement under applicable securities or "blue sky" laws of the states of the
United States or obtain exemption therefrom, and shall provide evidence of any
such action so taken to each Purchaser on or prior to the Closing Date.
12
c. REPORTING STATUS. So long as a Purchaser beneficially owns any
Securities or has the right to acquire any Securities pursuant to this
Agreement, the Company shall use all reasonable efforts to timely file all
reports required to be filed with the SEC pursuant to the Exchange Act and shall
not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder
would permit such termination (except to the extent all Purchasers can freely
resell the Securities under Rule 144(k) under the Securities Act).
d. USE OF PROCEEDS. The Company shall use the net proceeds from the sale
of the Shares and the Warrants for general corporate purposes and working
capital, but in no event shall the Company use such net proceeds to repurchase
any outstanding securities of the Company.
e. FINANCIAL INFORMATION.
(i) During the Registration Period (as defined in the
Registration Rights Agreement), the Company agrees to send to each
Purchaser within ten days after the filing with the SEC, to the
extent not available through the SEC's XXXXX system, a copy of its
Annual Report on Form 10-K, its Quarterly Reports on Form 10-Q, its
proxy and information statements and any Current Reports on Form
8-K.
(ii) Beginning the date hereof, the Company will provide XXXX
Capital Group, Inc., an affiliate of the Purchasers ("XXXX"), with a
weekly report showing the balance of cash available plus accounts
receivable under 120 days.
f. RESERVATION OF SHARES. The Company has and shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the issuance of the Shares as provided in
Section 2 hereof, and the full exercise of the Warrants and the issuance of the
Warrant Shares in connection therewith and as otherwise required hereby and by
the Warrants. The Company shall not reduce the number of shares of Common Stock
reserved for issuance under this Agreement (except as a result of the issuance
of the Shares hereunder) or the Warrants (except as a result of the issuance of
the Warrant Shares upon the exercise of the Warrants) or the Registration Rights
Agreement, without the consent of the Purchasers.
g. LISTING. The Company will apply for the listing of the Shares and
Warrant Shares, in each case, upon each national securities exchange and
automated quotation system, if any, upon which shares of Common Stock are then
listed or quoted and shall maintain, so long as any other shares of Common Stock
shall be so listed, such listing of all Shares from time to time issuable
hereunder and all Warrant Shares from time to time issuable upon exercise of the
Warrants.
h. NO INTEGRATED OFFERINGS. The Company shall not make any offers or sales
of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the
Securities Act or cause this offering of Securities to be integrated with any
other non-exempt offering of securities.
13
i. FURNISHING OF INFORMATION. As long as any Purchaser owns Securities,
the Company covenants to timely file (or obtain extensions in respect thereof
and file within the applicable grace period) all reports required to be filed by
the Company after the date hereof pursuant to the Exchange Act. Upon the request
of any Purchaser, the Company shall deliver to such Purchaser a written
certification of a duly authorized officer as to whether it has complied with
the preceding sentence. During the earlier of (i) the date two (2) years from
the Closing Date or (ii) as long as any Purchaser owns Securities, if the
Company is not required to file reports pursuant to such laws, it will prepare
and furnish to the Purchasers and make publicly available in accordance with
paragraph (c) of Rule 144 such information as is required for the Purchasers to
sell the Securities under Rule 144. The Company further covenants that it will
take such further action as any holder of Securities may reasonably request to
satisfy the provisions of Rule 144 applicable to the issuer of securities
relating to transactions for the sale of securities pursuant to Rule 144.
j. INTEGRATION. The Company shall not, and shall use its best efforts to
ensure that no Affiliate of the Company shall, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers.
k. INDEMNIFICATION. If any Purchaser or any of its Affiliates or any
officer, director, partner, controlling Person, employee or agent of a Purchaser
or any of its Affiliates (a "RELATED PERSON") becomes involved in any capacity
in any Proceeding brought by or against any Person in connection with or as a
result of any misrepresentation, breach or inaccuracy of any representation,
warranty, covenant or agreement made by the Company in any Transaction Document,
the Company will indemnify and hold harmless such Purchaser or Related Person
for its reasonable legal and other expenses (including the costs of any
investigation, preparation and travel) and for any losses incurred in connection
therewith, as such expenses or losses are incurred, excluding only losses that
result directly from such Purchaser's or Related Person's gross negligence or
willful misconduct. The indemnification obligations of the Company under this
paragraph shall be in addition to any liability that the Company may otherwise
have and shall be binding upon and inure to the benefit of any successors,
assigns, heirs and personal representatives of the Purchasers and any Related
Persons. The Company also agrees that neither the Purchasers nor any Related
Persons shall have any liability to the Company or any Person asserting claims
on behalf of or in right of the Company in connection with or as a result of the
transactions contemplated by the Transaction Documents, except to the extent
that any losses incurred by the Company result from the gross negligence or
willful misconduct of the applicable Purchaser or Related Person in connection
with such transactions. If the Company breaches its obligations under any
Transaction Document, then, in addition to any other liabilities the Company may
have under any Transaction Document or applicable law, the Company shall pay or
reimburse the Purchasers on demand for all costs of collection and enforcement
(including reasonable attorneys fees and expenses). Without limiting the
generality of the foregoing, the Company specifically agrees to reimburse the
Purchasers on demand for all costs of enforcing the indemnification obligations
in this paragraph.
l. BOARD OF DIRECTORS. The Company shall cause up to two (2) additional
members of the Board of Directors of the Company designated by the Purchasers to
be elected as members of the Company's Board of Directors at any such time as
the Purchasers notify the Company of their intention to designate directors.
14
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Shares and
Warrants to a Purchaser at the Closing hereunder is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions thereto;
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. Each Purchaser shall have executed the signature pages to this
Agreement and the Registration Rights Agreement and delivered the same to the
Company.
b. Each Purchaser shall have delivered to the Company such Purchaser's
Investment Amount in accordance with Section 2(b) above.
c. The representations and warranties of each Purchaser shall be true and
correct in all material respects as of the Closing Date and each Purchaser 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 such Purchaser at or prior to the Closing Date.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND WARRANTS.
The obligation of each Purchaser hereunder to purchase Shares and Warrants
to be purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, PROVIDED, HOWEVER, that these
conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
a. The Company shall have executed the signature pages to this Agreement
and the Registration Rights Agreement and delivered the same to the Purchaser.
b. The Company shall have delivered duly executed Transfer Agent
Instructions executed by the Company and delivered to and acknowledged in
writing by the Transfer Agent in the form attached hereto as EXHIBIT D in order
to ensure delivery to Xxxxxxxxxxx & Xxxxxxxx LLP of duly executed certificates
representing the number of Shares and duly executed Warrants as provided in
Section 2(b) hereof.
c. The representations and warranties of the Company shall be true and
correct in all material respects as of the Closing 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
Purchaser shall have received a certificate, executed on behalf of the Company
by its Chief Executive Officer or Chief Financial Officer, dated as of the
Closing Date, to the foregoing effect and attaching true and correct copies of
the resolutions adopted by the Company's Board of Directors authorizing the
execution, delivery and performance by the Company of its obligations under this
Agreement, the Registration Rights Agreement and the Warrants.
15
8. GOVERNING LAW MISCELLANEOUS.
a. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. All questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Texas. The Company and Purchasers hereby irrevocably submit to the
exclusive jurisdiction of the state and federal courts sitting in Dallas, Texas
for the adjudication of any dispute brought by the Company or any Purchaser
hereunder, in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of any of the
transaction documents), and hereby irrevocably waive, and agree not to assert in
any suit, action or proceeding brought by the Company or any Purchaser, any
claim that is not personally subject to the jurisdiction of any such court, or
that such suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. The Company and Purchasers
hereby waive all rights to a trial by jury.
b. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other parties. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
c. HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and by the Purchasers. Any waiver
by the Purchasers, on the one hand, or the Company, on the other hand, of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of such provision of or any breach of any
other provision of this Agreement. The failure of any one or more of the
Purchasers, on the one hand, or the Company, on the other hand to insist upon
strict adherence to any term of this Agreement on one or more occasions shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
16
f. NOTICES. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five (5) days after being placed in the mail, if mailed, or
upon receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company: CaminoSoft Corp.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to: Loeb & Loeb LLP
101000 Santa Xxxxxx Boulevard., Suite 2200
Los Angeles, California 90067-4164
Attn: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Purchaser, to the address set forth under the Purchaser's name on the
Execution Page hereto executed by such Purchaser. Each party hereto may from
time to time change its address or facsimile number for notices under this
Section 8 by giving at least ten (10) days' prior written notice of such changed
address or facsimile number, in the case of the Purchasers to the Company, with
a copy to Xxxxx Xxxxxxxx, Esq., at the address specified above in this Section
8(f) and in the case of the Company to all of the Purchasers.
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
g. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and permitted assigns. The
Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers. Any Purchaser may assign
its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided such transferee agrees in writing to be
bound, with respect to the transferred Securities, by the provisions hereof that
apply to such "Purchaser." Notwithstanding anything to the contrary herein,
Securities may be assigned to any Person in connection with a bona fide margin
account or other loan or financing arrangement secured by such Securities.
17
h. THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit
of the parties hereto and their respective successors and permitted assigns and
is not for the benefit of, nor may any provision hereof be enforced by, any
other Person, except that each Related Person is an intended third party
beneficiary and (in each case) may enforce the indemnity provisions directly
against the parties with obligations thereunder.
i. SURVIVAL. The representations and warranties of the Company and the
agreements and covenants of the Company shall survive the Closing
notwithstanding any due diligence investigation conducted by or on behalf of the
Purchasers. Moreover, none of the representations and warranties made by the
Company herein shall act as a waiver of any rights or remedies a Purchaser may
have under applicable federal or state securities laws.
j. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
k. JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement, the Registration
Rights Agreement and the Warrants. As such, the language used herein and therein
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party to this Agreement or the Warrants.
l. DETERMINATIONS. All consents, approvals and other determinations to be
made by the Purchasers pursuant to this Agreement and all waivers and amendments
to or of any provisions in this Agreement to be binding upon a Purchaser shall
be made by Purchasers that have invested more than fifty percent (50%) of the
aggregate Investment Amounts invested by all Purchasers hereunder.
m. FEES AND EXPENSES. At the Closing, the Company shall pay to XXXX
Capital Group, Inc. its legal fees and expenses incurred in connection with the
preparation and negotiation of the Transaction Documents, which fees and
expenses are estimated at $7,000. In lieu of the foregoing payment, XXXX Capital
Group, Inc. may retain such amount at the Closing or require the Company to pay
such amount directly to Xxxxxxxxxxx & Xxxxxxxx LLP. Except as expressly set
forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied
in connection with the issuance of the Securities.
n. REPLACEMENT OF SECURITIES. If any certificate or instrument evidencing
any Securities is mutilated, lost, stolen or destroyed, the Company shall issue
or cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
18
o. REMEDIES. In addition to being entitled to exercise all rights provided
herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
described in the foregoing sentence and hereby agree to waive in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
p. ADJUSTMENTS IN SHARE NUMBERS AND PRICES. In the event of any stock
split, subdivision, dividend or distribution payable in shares of Common Stock
(or other securities or rights convertible into, or entitling the holder thereof
to receive directly or indirectly shares of Common Stock), combination or other
similar recapitalization or event occurring after the date hereof, each
reference in any Transaction Document to a number of shares or a price per share
shall be amended to appropriately account for such event.
q. INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser under any Transaction Document are joint and not
several with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. The decision of each Purchaser to
purchase Shares pursuant to this Agreement has been made by such Purchaser
independently of any other Purchaser and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or of the Subsidiary which may have been
made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser or any of its agents or employees shall have any
liability to any other Purchaser (or any other Person) relating to or arising
from any such information, materials, statements or opinions. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser acknowledges that no other Purchaser has
acted as agent for such Purchaser in connection with making its investment
hereunder and that no other Purchaser will be acting as agent of such Purchaser
in connection with monitoring its investment hereunder. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
EXHIBIT 4.8
IN WITNESS WHEREOF, the undersigned Purchasers and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
CAMINOSOFT CORP.,
a California corporation
By:
-------------------------------------------
Xxxxxxx Xxxxxxx, Chief Executive Officer
20
THE PURCHASERS:
BFSUS SPECIAL OPPORTUNITIES TRUST PLC
By:
-------------------------------------------
Xxxxxxx Xxxxxxxxx, Director
Address for notices:
c/o RENN Capital Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
21
RENAISSANCE US GROWTH & INVESTMENT TRUST PLC
By:
-------------------------------------------
Xxxxxxx Xxxxxxxxx, Director
Address for notices:
c/o RENN Capital Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
00
XXXXXXXXXXX XXXXXXX XXXXXX & INCOME
FUND III, INC.
By: Renaissance Capital Group, Inc.,
Investment Adviser
By:
-------------------------------------------
Xxxxxxx Xxxxxxxxx
President and CEO
Address for notices:
c/o RENN Capital Group, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000-XX00
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
23
EXHIBIT A
SCHEDULE OF PURCHASERS
PURCHASER NO. OF SHARES PRICE PER SHARE INVESTMENT AMOUNT
--------- ------------- --------------- -----------------
BFSUS Special Opportunities Trust Plc 1,081,081 $0.37 $399,999.97
Renaissance US Growth & Investment Trust plc 1,081,081 $0.37 $399,999.97
Renaissance Capital Growth & Income Fund III, Inc. 1,081,081 $0.37 $399,999.97
PURCHASER XX. XX 0X XXXXXXXX XX. XX 0X XXXXXXXX
--------- ------------------ ------------------
BFSUS Special Opportunities Trust Plc 540,541 540,540
Renaissance US Growth & Investment Trust plc 540,541 540,540
Renaissance Capital Growth & Income Fund III, Inc. 540,541 540,540
24
EXHIBIT B-1
Form of 2X Warrant
25
EXHIBIT B-2
Form of 3X Warrant
26
EXHIBIT C
Form of Registration Rights Agreement
27
EXHIBIT D
Transfer Agent Instructions
28
SCHEDULE 4(A)
Organization and Qualification
29
SCHEDULE 4(B)
Authorization; Enforcement
30
SCHEDULE 4(C)
Capitalization
31
SCHEDULE 4(D)
Issuance of Shares
32
SCHEDULE 4(F)(I)
SEC Documents; Financial Statements; Certain Arrangements
33
SCHEDULE 4(F)(II)
Off-Balance Sheet Arrangements
34
SCHEDULE 4(G)
Absence of Certain Changes
35
SCHEDULE 4(L)
Insurance
36
SCHEDULE 4(T)
Transactions With Affiliates and Employees
37
