STOCK PURCHASE AGREEMENT
Exhibit
6.2
This
Stock Purchase Agreement (this “Agreement”)
is
entered into effective as of February 21, 2006, by and among CaminoSoft Corp.,
a
California corporation (the “Company”),
The
Frost National Bank FBO Renaissance US Growth Investment Trust PLC, a public
limited company registered in England and Wales, Trust No. W00740100
(“RUSGIT”),
The
Frost National Bank, FBO BFS US Special Opportunities Trust PLC, a public
limited company registered in England and Wales, Trust No. W00118000
(“BFS”
and
together with RUSGIT, collectively, the “Purchasers”),
and
XXXX Capital Group, Inc., a Texas corporation, solely as agent for the
Purchasers and not on its own behalf (the “Agent”,
and
together with the Company and the Purchasers, collectively, the “Parties”).
RECITAL
The
Purchasers desire to purchase from the Company, and the Company desires to
issue
and sell to the Purchasers, shares of common stock of the Company, without
par
value (the “Common
Stock”),
for
the purchase price and subject to the other terms and conditions set forth
herein.
AGREEMENT
Based
on
the foregoing and the mutual promises contained herein, the Parties agree as
follows:
1. Purchase
and Sale.
1.1 The
Company hereby agrees to sell to the Purchasers, and each Purchaser, severally
and not jointly, hereby agrees to purchase from the Company, that number of
shares of Common Stock (collectively, the “Shares”)
set
forth opposite such Purchaser’s name on Exhibit
A
attached
hereto, at $0.86 per share (the “Purchase
Price”).
The
Company’s agreement with each of the Purchasers is a separate agreement, and the
sale of Shares to each of the Purchasers is a separate sale.
2. Closing
Deliveries.
2.1 Company
Deliveries.
Contemporaneously with the execution and delivery of this Agreement, and against
payment for the Shares as set forth in Section
2.2
below,
the Company is delivering to each Purchaser a certificate representing the
number of Shares set forth opposite such Purchaser’s name on Exhibit
A
attached
hereto.
2.2 The
Purchasers’ Deliveries.
Contemporaneously with the execution and delivery of this Agreement, each
Purchaser is delivering to the Company a certified or bank cashier’s check, or a
wire transfer of immediately available funds to an account designated by the
Company, in the amount of the Purchase Price for the number of Shares set forth
opposite such Purchaser’s name on Exhibit
A
attached
hereto.
3. Representations
and Warranties of the Purchasers.
Each
Purchaser represents and warrants to the Company, severally and not jointly,
for
itself only and not with respect to any other Purchaser, as
follows:
3.1 Investment
Representations.
(a) Suitability
as an Investor.
The
Purchaser (i) is an “accredited investor,” as that term is defined in Regulation
D under the Securities Act of 1933, as amended (the “Securities
Act”),
and
has such knowledge, skill and experience in business and financial matters
that
it is capable of evaluating the merits and risks of an investment in the Company
and the suitability thereof as an investment for it, (ii) understands that
an investment in the Shares involves a risk of financial loss, and (iii) has
received such documents and information as it has requested and has had an
opportunity to ask questions of Company officials and to receive satisfactory
answers concerning the terms and conditions of the investment proposed herein,
and based thereon, such Purchaser believes it can make an informed investment
decision.
(b) Investment.
The
Purchaser has not entered into any agreement to exchange the Shares with any
other party. The Purchaser is acquiring the Shares for investment for its own
account and not with a view to, or for resale in connection with, any
distribution thereof in violation of federal and state securities
laws.
(c) Restricted
Securities.
The
Purchaser understands that the Shares will be characterized as “restricted
securities” under the 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. In this connection, the Purchaser represents that it is familiar
with Rule 144 promulgated under the Securities Act, as presently in effect,
and
understands the resale limitations imposed thereby and by the Securities Act.
The Purchaser acknowledges that the certificates evidencing the Shares will
bear
a legend in substantially the following form:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE
ABSENCE OF A REGISTRATION STATEMENT THEN IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT
TO
RULE 144 OF SUCH ACT.”
3.2 Authorization;
Valid and Binding.
The
Purchaser has the requisite power and authority to enter into and perform its
obligations under this Agreement and to purchase the Shares in accordance with
the terms hereof. This Agreement has been duly and validly authorized, executed
and delivered on behalf of the Purchaser and is the valid and binding obligation
of the Purchaser, enforceable against Purchaser according to its terms, except
as may be limited by (i) applicable bankruptcy, insolvency, reorganization
or
other similar laws of general application relating to or affecting the
enforcement of creditor rights, (ii) laws and judicial decisions regarding
indemnification for violations of securities laws, and (iii) the availability
of
specific performance or other equitable remedies.
3.3 Advisors.
The
Purchaser has had an opportunity to consult with its own advisors, including
its
legal, accounting and tax advisors, and has assumed full responsibility for
determining on its own behalf whether the transactions contemplated by this
Agreement are satisfactory to such Purchaser.
3.4 No
Brokers or Finders.
No
person or entity had, has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or valid claim against
or
upon the Company or any Purchaser for any commission, fee or other compensation
as a finder or broker because of any act or omission by the Purchaser or any
of
its agents.
2
4. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to each Purchaser as
follows:
4.1 Organization;
Power and Authority.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of California. The Company has all requisite
corporate power and authority to own its properties and to carry on its business
as presently conducted. The Company has all requisite power and authority to
enter into and perform this Agreement and to carry out the transactions
contemplated hereby.
4.2 Authorization;
Valid and Binding.
This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Company and is the valid and binding obligation of the Company,
enforceable against the Company according to its terms, except as may be limited
by (i) applicable bankruptcy, insolvency, reorganization or other similar laws
of general application relating to or affecting the enforcement of creditor
rights, (ii) laws and judicial decisions regarding indemnification for
violations of securities laws, and (iii) the availability of specific
performance or other equitable remedies.
4.3 Issuance
of the 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, security interests, liens (xxxxxx or inchoate), encumbrances,
mortgages, pledges, equities, options, rights of first refusal, charges,
assessments, restrictions, reservations, defects in title and other burdens
and
interests of other persons, whether arising by contract or under law or equity,
and will not be subject to preemptive rights or other similar rights of
shareholders of the Company.
4.4 No
Conflicts.
The
execution, delivery and performance of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated hereby (including,
without limitation, the sale and issuance of the Shares) will not (i) conflict
with or result in a violation of the Articles of Incorporation or Bylaws 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 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 by which any property or asset of the Company is bound. 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 for it to execute, deliver or perform any of its obligations
under this Agreement.
4.5 SEC
Reports and Financial Statements.
Since
January 1, 2003, the Company has filed all proxy statements, reports and other
documents required to be filed by it under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder, and has filed
all registration statements and other documents required to be filed by it
under
the Securities Act (all of the foregoing, and all exhibits and financial
statements included therein and schedules thereto, the “SEC
Reports”).
Each
SEC Report was, at the time of its filing, in substantial compliance with the
requirements of its respective form and none of the SEC Reports, as of their
respective filing dates, contained any untrue statement of a material fact
or
omitted to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading. The financial statements included in the SEC Reports
have
been prepared in accordance with United States generally accepted accounting
principles applied on a consistent basis during the periods involved (except
(i)
as may be otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they may
not
include footnotes or may be condensed) and fairly present in all material
respects the financial condition, the results of operations and cash flows
of
the Company and its subsidiaries, on a consolidated basis, as of, and for,
the
periods presented in each such SEC Report.
3
4.6 Listing.
The
Common Stock is quoted on the OTC Bulletin Board and satisfies all requirements
for the continuation of such quotation, and the Company shall do all things
necessary for the continuation of such quotation. The Company has not received
any notice that the Common Stock will be no longer quoted on the OTC Bulletin
Board or that the Common Stock does not meet all requirements for
quotation.
4.7 No
Brokers or Finders.
No
person or entity had, has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or valid claim against
or
upon the Company or any Purchaser for any commission, fee or other compensation
as a finder or broker because of any act or omission by the Company or any
of
its agents.
5. Agency.
5.1 Each
of
the Purchasers hereby designates and appoints the Agent as its agent under
this
Agreement and all agreements, documents or other instruments executed by such
Purchaser in connection with the transactions contemplated hereby, or previously
executed by such Purchaser in connection with an investment in the Company
(the
“Ancillary
Agreements”),
and
authorizes the Agent to take such actions on its behalf under the provisions
of
this Agreement and the Ancillary Agreements as the Agent deems necessary and
appropriate, in the sole judgment of the Agent. In performing its functions
and
duties under this Agreement and the Ancillary Agreements, the Agent shall act
solely as agent of the Purchasers and does not assume and shall not be deemed
to
have assumed any obligation toward or relationship of agency or trust with
or
for the Company. The Agent may perform any of its duties by or through its
agents or employees.
5.2 The
Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement or the Ancillary Agreements, and the duties of the Agent shall
be
mechanical and administrative in nature. The Agent shall have and may use its
sole discretion with respect to exercising or refraining from taking any actions
which the Agent is expressly entitled to take or assert under this Agreement
and
the Ancillary Agreements. The Agent shall not have by reason of this Agreement
a
fiduciary relationship with respect to the Purchasers. Nothing in this Agreement
or the Ancillary Agreements, express or implied, is intended to or shall be
construed to impose upon the Agent any obligations in respect of this Agreement
or the Ancillary Agreements except as expressly set forth herein or therein.
If
the Agent seeks the consent or approval of the Purchasers to the taking or
refraining from taking any action hereunder or under the Ancillary Agreements,
the Agent shall send notice thereof to the Purchasers. The Agent shall not
be
responsible to the Purchasers or the Company, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of
any
such agents or attorneys-in-fact selected by it with reasonable care.
5.3 Neither
the Agent nor any of its officers, directors, employees or agents shall be
liable to the Purchasers for any action taken or omitted by it or any of them
under this Agreement or the Ancillary Agreements, except that no person or
entity shall be relieved of any liability imposed by law, intentional tort
or
gross negligence. The Agent shall not be responsible to the Purchasers for
any
recitals, statements, representations or warranties contained in this Agreement
or for the execution, effectiveness, genuineness, validity, enforceability,
or
sufficiency of this Agreement or the Ancillary Agreements, or any of the
transactions contemplated thereby, or for the financial condition of the
Company. The Agent shall not be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions
of
this Agreement or any of the Ancillary Agreements, or the financial condition
of
the Company, or the existence or possible existence of any breach of any of
such
agreements. Agent shall give the Purchasers notice of any breach of which the
Agent has actual notice. The Agent may at any time request instructions from
the
Purchasers with respect to any actions or approvals which by the terms of this
Agreement or the Ancillary Agreements the Agent is permitted or required to
take
or to grant, and if such instructions are promptly requested, the Agent shall
be
absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever to any third party
for
refraining from any action or withholding any approval under this Agreement
or
the Ancillary Agreements until it shall have received such instructions from
the
Purchasers. Without limiting the foregoing, the Purchasers shall not have any
right of action whatsoever against the Agent as a result of the Agent acting
or
refraining from acting under this Agreement or the Ancillary Agreements in
accordance with the instructions of the Purchasers.
4
5.4 The
Agent
shall be entitled to rely upon any written notices, statements, certificates,
orders or other documents or any telephone message believed by it in good faith
to be genuine and correct and to have been signed, sent or made by the proper
party, and with respect to all matters pertaining to this Agreement and the
Ancillary Agreements, upon advice of counsel selected by it.
5.5 To
the
extent that the Agent is not reimbursed and indemnified by the Company, the
Purchasers will reimburse and indemnify the Agent for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, advances or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or the Ancillary Agreements. The
obligations of the Purchasers under this indemnification provision shall survive
the termination of this Agreement.
6. Miscellaneous.
6.1 Governing
Law; Venue.
This
Agreement shall be governed in all respects by the internal laws of the State
of
Texas as applied to agreements entered into among Texas residents to be
performed entirely within Texas, without regard to conflict of laws rules.
Each
party hereby irrevocably submits to the exclusive jurisdiction of the state
and
federal courts sitting in the County of Dallas, Texas, for the adjudication
of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper.
6.2 Survival. The
representations, warranties and covenants of the Company and the Purchasers
contained herein or made pursuant to this Agreement (i) shall survive the
execution and delivery of this Agreement and the sale and issuance of the Shares
until the earlier of (a) such time as any cause of action against the Company
for such warranties, representations and covenants would be barred by the
applicable statute of limitations or (b) such time as the Purchasers no longer
own any of the Shares, and (ii) shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of the
Purchasers.
6.3 Successors.
The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, heirs, executors and administrators of the Parties hereto.
6.4 Entire
Agreement; Amendment.
This
Agreement constitutes the full and entire understanding and agreement between
the Parties with regard to the subject matter hereof. Except as expressly
provided herein, neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated, except by a written instrument signed by
the
Parties hereto.
5
6.5 Waiver.
No term
or condition of this Agreement shall be deemed to have been waived, nor shall
there by any estoppel to enforce any provision of this Agreement, except by
written instrument of the party charged with such waiver or
estoppel.
6.6 Notices.
All
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed to have been sufficiently given (i) if sent by
facsimile transmission, upon telephonic confirmation of receipt, (ii) if sent
by
registered or certified mail, upon the sooner of the expiration of five (5)
days
after deposit in the post office facilities properly addressed with postage
prepaid or acknowledgment of receipt, (iii) if personally delivered, when
delivered to the party to whom notice is sent, or (iv) if delivered by a
recognized overnight courier, upon receipt evidencing proof of delivery,
addressed to the appropriate party or parties, at the address of such party
set
forth below (or at such other address as such party may designate by written
notice furnished to all other Parties in accordance herewith):
| If to the Company: |
000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Chief Executive Officer
|
||
| with a copy to: |
Xxxx & Xxxxx, P.C.
0000
Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Fax:
(000) 000-0000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
|
||
| If to a Purchaser or Agent: | c/o RENN
Capital Group,
Inc.
0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx Xxxxxxxxx
|
||
| with a copy to: | Xxxxxx
and Xxxxx, LLP
0000
Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx,
Xxxxx 00000
Fax:
(000) 000-0000
Attn:
Xxxxx X. Xxxx, Esq.
|
6.7 Indemnification. The
Company, without limitation as to time, assumes liability for and agrees
to indemnify, defend and hold harmless each Purchaser and
its officers, directors, stockholders, partners, employees,
agents, affiliates and representatives (collectively, “Indemnified
Persons”)
from
and against, all losses, claims, damages, liabilities, obligations,
fines, penalties, judgments, settlements, costs, expenses and disbursements
(including reasonable attorneys’ fees and expenses) (collectively, “Losses”)
(i)
arising out of or related to any breach or inaccuracy of any representation
or
warranty of the Company contained in this Agreement; (ii) any
non-fulfillment or breach of any covenant or agreement of the Company contained
in this Agreement; or (iii) incurred in connection with any suit, action,
proceeding, claim, investigation, liability or obligation (an “Action
or Proceeding”)
against the Company or any Indemnified Person arising out of or in
connection with this Agreement (or any other document or instrument executed
pursuant hereto or thereto), or the transactions contemplated herein
or therein, or the investment in or ownership of the Shares. The Company
agrees to reimburse each Indemnified Person promptly for all such
Losses as they are incurred by such Indemnified Person; provided that the
Company receives a written undertaking by or on behalf
of such Indemnified Person to reimburse the Company for any
payments made by the Company to such Indemnified Person if it
is finally determined in such Action or Proceeding that such
Indemnified Person is not entitled to indemnification pursuant to clause
(iii) above. The obligations of the Company to each Indemnified
Person under this Section
6.7
will be
separate and distinct obligations and will survive any transfer of
securities by any Purchaser and the expiration or termination of this
Agreement. The Company’s obligations to indemnify any Purchaser for any Losses
described in clauses (i) or (ii) above shall terminate and be of no further
force or effect at such time as the representations, warranties and covenants
of
the Company and the Purchasers contained herein or made pursuant to this
Agreement terminate pursuant to Section
6.2
above.
Notwithstanding the preceding sentence and Section
6.2
above,
any representation, warranty or covenant in respect of which indemnity may
be
sought under this Section
6.7
shall
survive the time at which it would otherwise terminate pursuant to the preceding
sentence or Section
6.2
to the
extent any Purchaser delivers written notice to the Company, prior
to
the close of business on the last day of the time
at
which such representation, warranty or covenant would otherwise terminate,
which
such notice shall (A) describe in reasonable detail the inaccuracy, breach
or
non-fulfillment thereof giving rise to such right of indemnity and (B) identify
the representations, warranties or covenants giving rise to such right of
indemnity.
6
6.8 Delays
or Omissions.
No
delay or omission to exercise any right, power or remedy inuring to any party
upon any breach or default of any party under this Agreement shall impair any
such right, power or remedy of such party nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or
in
any similar breach or default thereafter occurring; nor shall any waiver of
any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. All remedies either under this Agreement
or
by law or otherwise afforded to the Parties shall be cumulative and not
alternative.
6.9 Severability.
In case
any provision of this Agreement shall be invalid, illegal or unenforceable,
such
provision shall be reformed to the extent necessary to permit enforcement
thereof, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
6.10 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one and the same
instrument.
6.11 Titles
and Subtitles.
The
titles of the Sections, paragraphs and subparagraphs of this Agreement are
for
convenience of reference only and are not to be considered in construing this
Agreement.
6.12 Telecopy
Execution and Delivery. A
facsimile, telecopy or other reproduction of this Agreement may be executed
by
one or more parties to this Agreement, and an executed copy of this Agreement
may be delivered by one or more parties to this Agreement by facsimile or
similar electronic transmission device pursuant to which the signature of or
on
behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of
any
party to this Agreement, all parties to this Agreement agree to execute an
original of this Agreement as well as any facsimile, telecopy or other
reproduction of this Agreement.
6.13 Cooperation.
The
Parties to this Agreement shall use reasonable efforts to take, or cause to
be
taken, all reasonable actions and to do, or cause to be done all things
reasonably necessary (including executing additional instruments or agreements),
proper or advisable to consummate and make effective as promptly as practicable
the transactions contemplated by this Agreement.
*
* * *
*
7
Exhibit
6.2
IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the date
first written above.
| COMPANY: | ||
| CaminoSoft Corp. | ||
| |
|
|
| By: | ||
|
Xxxxxxx Xxxxxxx |
||
| Chief Executive Officer | ||
| PURCHASERS: | ||
| Renaissance US Growth Investment Trust PLC | ||
| |
|
|
| By: | XXXX Capital Group, Inc. | |
| Its: | Investment Manager | |
| By: | ||
|
Xxxxxxx Xxxxxxxxx |
||
| President | ||
| BFS US Special Opportunities Trust PLC | ||
| |
|
|
| By: | XXXX Capital Group, Inc. | |
| Its: | Investment Manager | |
| By: | ||
|
Xxxxxxx Xxxxxxxxx |
||
| President | ||
| AGENT: | ||
| XXXX Capital Group, Inc. | ||
| |
|
|
| By: | ||
|
Xxxxxxx Xxxxxxxxx |
||
| President | ||
|
Purchaser
|
Shares
|
Aggregate
Purchase Price
|
||
|
The
Frost National Bank FBO Renaissance US
Growth
Investment Trust PLC, Trust No. W00740100
c/o
RENN Capital Group, Inc.
0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx Xxxxxxxxx
|
348,837
|
$300,000
|
||
|
The
Frost National Bank, FBO BFS US Special
Opportunities
Trust PLC, Trust No. W00118000
c/o
RENN Capital Group, Inc.
0000
Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Facsimile:
(000) 000-0000
Attn:
Xxxxxxx Xxxxxxxxx
|
348,837
|
$300,000
|
||
|
TOTAL:
|
697,674
|
$600,000
|
