PURCHASE AGREEMENT
Exhibit
10.1
THIS
PURCHASE AGREEMENT (“Agreement”)
is made as of the 6th day of
December,
2007 by and among Caprius, Inc., a Delaware corporation (the “Company”), and the
Investors set forth on the signature pages affixed hereto (each an “Investor”
and collectively the “Investors”).
Recitals
A. The
Company and the Investors 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 U.S.
Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933,
as amended; and
B. The
Investors wish to purchase from the Company, and the Company wishes to sell
and
issue to the Investors, upon the terms and conditions stated in this Agreement,
(i) up to an aggregate of 80,000 shares of the Company’s Series F Convertible
Preferred Stock, stated value $60 per share (the “Preferred Stock”), such
Preferred Stock to have the relative rights, preferences and designations set
forth in the Certificate of Designations set forth in Exhibit A hereto
(the “Certificate of Designations”), at a purchase price of $60 per share and
(ii) Warrants to purchase up to an aggregate of 3,200,000 shares of the
Company’s Common Stock, par value $0.01 per share (together with any securities
into which such shares may be reclassified the “Common Stock”) (subject to
adjustment) at an exercise price of $0.80 per share (subject to adjustment)
in
the form attached hereto as Exhibit B (the “Warrants”); and
C. Contemporaneous
with the sale of the Preferred Stock and Warrants, the parties hereto will
execute and deliver a Registration Rights Agreement, in the form attached hereto
as Exhibit C (the “Registration Rights Agreement”), pursuant to which the
Company will agree to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder,
and applicable state securities laws.
In
consideration of the mutual promises
made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. In
addition to those terms defined above and elsewhere in this Agreement, for
the
purposes of this Agreement, the following terms shall have the meanings set
forth below:
“Affiliate”
means, with respect to any Person, any other Person which directly or indirectly
through one or more intermediaries Controls, is controlled by, or is under
common control with, such Person, as such terms are used in and construed under
Rule 144 under the 1933 Act.
“Business
Day” means a day,
other than a Saturday or Sunday, on which banks in New York City are open for
the general transaction of business.
“Common
Stock Equivalents” means
any securities of the Company or the Subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including without limitation,
any
debt, preferred stock, rights, options, warrants or other instruments that
is at
any time convertible into or exchangeable for, or otherwise entitles the holders
thereof to receive, Common Stock.
“Company’s
Knowledge” means the
actual knowledge of the executive officers (as defined in Rule 405 under the
0000 Xxx) of the Company, after due inquiry.
“Confidential
Information” means
trade secrets, confidential information and know-how (including but not limited
to ideas, formulae, compositions, processes, procedures and techniques, research
and development information, computer program code, performance specifications,
support documentation, drawings, specifications, designs, business and marketing
plans, and customer and supplier lists and related information).
“Control”
(including
the terms
“controlling”, “controlled by” or “under common control with”) means the
possession, direct or indirect, of the power to direct or cause the direction
of
the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
“Conversion
Shares” means the
shares of Common Stock issuable upon conversion of the Preferred
Stock.
“Effective
Date” means the date
on which the initial Registration Statement is declared effective by the
SEC.
“Effectiveness
Deadline” means
the date on which the initial Registration Statement is required to be declared
effective by the SEC under the terms of the Registration Rights
Agreement.
“Excluded
Stock” has the meaning
set forth in the Certificate of Designations.
“Intellectual
Property” means
all of the following: (i) patents, patent applications, patent disclosures
and
inventions (whether or not patentable and whether or not reduced to practice);
(ii) trademarks, service marks, trade dress, trade names, corporate names,
logos, slogans and Internet domain names, together with all goodwill associated
with each of the foregoing; (iii) copyrights and copyrightable works; (iv)
registrations, applications and renewals for any of the foregoing; and (v)
proprietary computer software (including but not limited to data, data bases
and
documentation).
“Material
Adverse Effect” means
a material adverse effect on (i) the assets, liabilities, results of operations,
condition (financial or otherwise), business, or prospects of the
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Company
and its Subsidiaries taken as a whole, or (ii) the ability of the Company to
perform its obligations under the Transaction Documents.
“Maximum
Amount” means the sale of up to 80,000 shares of Preferred Stock for total
gross proceeds of $4.8 million, together with Warrants to acquire up to
3,200,000 shares of Common Stock.
“Minimum
Amount“ means the sale of a minimum of 33,333 shares of Preferred Stock for
gross proceeds of $1,999,980, together with Warrants to acquire 1,333,320 shares
of 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.
“Purchase
Price” means, as to
each Investor, the aggregate amount to be paid for the Shares and Warrants
purchased hereunder as specified below such Investor’s name on the signature
pages of this Agreement.
“Registration
Statement” has the
meaning set forth in the Registration Rights Agreement.
“SEC
Filings” has the meaning
set forth in Section 4.6.
“Securities”
means
the Shares,
the Conversion Shares, the Warrants and the Warrant Shares.
“Series
D Preferred Stock” means
the Company’s Series D Convertible Redeemable Preferred Stock, par value $0.01
per share.
“Series
E Preferred Stock” means
the Company’s Series E Convertible Redeemable Preferred Stock, par value $0.01
per share.
“Shares”
means
the shares of
Preferred Stock being purchased by the Investors hereunder.
“Subsidiary”
of
any Person means
another Person, an amount of the voting securities, other voting ownership
or
voting partnership interests of which is sufficient to elect at least a majority
of its Board of Directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first Person.
“Transaction
Documents” means
this Agreement, the Certificate of Designations, the Warrants and the
Registration Rights Agreement.
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“Warrant
Shares” means the
shares of Common Stock issuable upon the exercise of the Warrants.
“1933
Act” means the Securities
Act of 1933, as amended, or any successor statute, and the rules and regulations
promulgated thereunder.
“1934
Act” means the Securities
Exchange Act of 1934, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
2. Purchase
and Sale of the Shares and Warrants. Subject to the terms and
conditions of this Agreement, on the Closing Date, each of the Investors shall
severally, and not jointly, purchase, and the Company shall sell and issue
to
the Investors, the Shares and Warrants in the respective amounts set forth
opposite the Investors’ names on the signature pages attached hereto in exchange
for the Purchase Price as specified in Section 3 below.
3. Closing. Upon
confirmation that the other conditions to closing specified herein have been
satisfied or duly waived by the Investors, the Company shall file the
Certificate of Designations with the Secretary of State of
Delaware. Upon confirmation that the Certificate of Designations has
been filed and has become effective, unless other arrangements have been made
between the Company and a particular Investor, the Company shall deliver to
Xxxxxxxxxx Xxxxxxx PC, in trust, a certificate or certificates, registered
in
such name or names as the Investors may designate, representing the Shares
and
Warrants being purchased, with instructions that such certificates are to be
held for release to the Investors only upon payment in full of the applicable
portion of the Purchase Price to the Company. Upon such receipt by
Xxxxxxxxxx Xxxxxxx PC of the certificates (or as specified in any alternative
arrangement entered into between the Company and an Investor), each Investor
shall promptly, but no more than one Business Day thereafter, cause a wire
transfer in same day funds to be sent to the account of the Company as
instructed in writing by the Company, in an amount representing such Investor’s
Purchase Price. On the date (the “Initial Closing Date”) the Company
receives the Purchase Price from the Investors purchasing Shares and Warrants
on
the Initial Closing Date, the certificates evidencing the Shares and Warrants
shall be released to the Investors (the “Initial Closing”). The
Initial Closing of the purchase and sale of the Shares and Warrants shall take
place at the offices of Xxxxxxxxxx Xxxxxxx PC, 1251 Avenue of the Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location and on such other
date as the Company and the Investors shall mutually agree. The
subsequent closing(s) of the purchase and sale of up to the Maximum Amount
under
this Agreement (the “Subsequent Closings”) shall take place at a time agreed
upon by the Company and the Investors participating therein (the date(s) of
the
Subsequent Closing(s) is hereinafter referred to as the “Subsequent Closing
Date(s)”), all of which shall occur in any event no later than fifteen (15) days
after the Initial Closing. The Investors agree that any additional
Persons that acquire Shares and Warrants at any “Subsequent Closing” shall
become “Investors” under this Agreement and the Registration Rights Agreement
with all the rights and obligations attendant thereto, upon their execution
of
this Agreement and the Registration Rights Agreement without further action
by
any other Investor. For purposes of this Agreement, the terms
“Closing” and “Closing Date”, unless otherwise indicated, refer to the
applicable closing and closing date of the Initial Closing or the Subsequent
Closing(s), as the case may be.
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4. Representations
and Warranties of the Company. The Company hereby represents and
warrants to the Investors that, except as set forth in the schedules delivered
herewith (collectively, the “Disclosure Schedules”):
4.1 Organization,
Good Standing and Qualification. Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to carry on its business as now
conducted and to own its properties. Each of the Company and its
Subsidiaries is duly qualified to do business as a foreign corporation and
is in
good standing in each jurisdiction in which the conduct of its business or
its
ownership or leasing of property makes such qualification or leasing necessary
unless the failure to so qualify has not had and could not reasonably be
expected to have a Material Adverse Effect. The Company’s
Subsidiaries are listed on Schedule 4.1 hereto. Neither the
Company nor any Subsidiary is in violation of any of the provisions of its
respective certificate or articles of incorporation, by-laws or other
organizational or charter documents.
4.2 Authorization. The
Company has full power and authority and has taken all requisite action on
the
part of the Company, its officers, directors and stockholders necessary for
(i)
the authorization, execution and delivery of the Transaction Documents, (ii)
the
authorization of the performance of all obligations of the Company hereunder
or
thereunder, and (iii) the authorization, issuance (or reservation for issuance)
and delivery of the Securities. The Transaction Documents constitute
the legal, valid and binding obligations of the Company, enforceable against
the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors’ rights
generally.
4.3 Capitalization. Schedule
4.3 sets forth (a) the authorized capital stock of the Company on the date
hereof; (b) the number of shares of capital stock issued and outstanding; (c)
the number of shares of capital stock issuable pursuant to the Company’s
outstanding stock award; and (d) the number of shares of capital stock issuable
pursuant to future grants of awards eligible to be made under the Company’s
stock plans; (e) the number of shares of Common Stock issuable upon conversion
of the outstanding Series D Preferred Stock and the outstanding Series E
Preferred Stock; and (f) the number of shares of capital stock issuable and
reserved for issuance pursuant to securities (other than the Series D Preferred
Stock, the Series E Preferred Stock, the Shares and the Warrants) exercisable
for, or convertible into or exchangeable for any shares of capital stock of
the
Company. All of the issued and outstanding shares of the Company’s
capital stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of pre-emptive rights and were issued in full compliance
with applicable state and federal securities law and any rights of third
parties. Except as described on Schedule 4.3, all of the
issued and outstanding shares of capital stock of each Subsidiary have been
duly
authorized and validly issued and are fully paid, nonassessable and free of
pre-emptive rights, were issued in full compliance with applicable state and
federal securities law and any rights of third parties and are owned by the
Company, beneficially and of record, subject to no lien, encumbrance or other
adverse claim. Except as described on Schedule 4.3, no Person
is entitled to pre-emptive or similar statutory or contractual rights with
respect to any securities of
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the
Company. Except as described on Schedule 4.3, there are no
outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which the Company or any
of
its Subsidiaries is or may be obligated to issue any equity securities of any
kind and except as contemplated by this Agreement, neither the Company nor
any
of its Subsidiaries is currently in negotiations for the issuance of any equity
securities of any kind. Except as described on Schedule 4.3
and except for the Registration Rights Agreement, there are no voting
agreements, buy-sell agreements, option or right of first purchase agreements
or
other agreements of any kind among the Company and any of the securityholders
of
the Company relating to the securities of the Company held by
them. Except as described on Schedule 4.3 and except as
provided in the Registration Rights Agreement, no Person has the right to
require the Company to register any securities of the Company under the 1933
Act, whether on a demand basis or in connection with the registration of
securities of the Company for its own account or for the account of any other
Person.
Except
as described on Schedule
4.3, the issuance and sale of the Securities hereunder will not obligate the
Company to issue shares of Common Stock or other securities to any other Person
(other than the Investors) and will not result in the adjustment of the
exercise, conversion, exchange or reset price of any outstanding
security.
The
Company does not have outstanding
stockholder purchase rights or “poison pill” or any similar arrangement in
effect giving any Person the right to purchase any equity interest in the
Company upon the occurrence of certain events.
4.4 Valid
Issuance. The Shares have been duly and validly authorized and,
when issued and paid for pursuant to this Agreement, will be validly issued,
fully paid and nonassessable, and shall be free and clear of all encumbrances
and restrictions (other than those created by the Investors), except for
restrictions on transfer set forth in the Transaction Documents or imposed
by
applicable securities laws and will be entitled to the relative rights, powers
and preferences set forth in the Certificate of Designations. Upon
the due conversion of the Shares in accordance with the Certificate of
Designations, the Conversion Shares will be validly issued, fully paid and
nonassessable, and shall be free and clear of all encumbrances and restrictions
(other than those created by the Investors), except for restrictions on transfer
set forth in the Transaction Documents or imposed by applicable securities
laws. The Warrants have been duly and validly
authorized. Upon the due exercise of the Warrants, the Warrant Shares
will be validly issued, fully paid and non-assessable free and clear of all
encumbrances and restrictions, except for restrictions on transfer set forth
in
the Transaction Documents or imposed by applicable securities laws and except
for those created by the Investors. The Company has reserved a
sufficient number of shares of Common Stock for issuance upon the conversion
of
the Preferred Stock and the exercise of the Warrants, free and clear of all
encumbrances and restrictions, except for restrictions on transfer set forth
in
the Transaction Documents or imposed by applicable securities laws and except
for those created by the Investors.
4.5 Consents. The
execution, delivery and performance by the Company of the Transaction Documents
and the offer, issuance and sale of the Securities require no consent of, action
by or in respect of, or filing with, any Person, governmental body, agency,
or
official other than filings that have been made pursuant to applicable state
securities laws and post-sale
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filings
pursuant to applicable state and federal securities laws which the Company
undertakes to file within the applicable time periods. Subject to the
accuracy of the representations and warranties of each Investor set forth in
Section 5 hereof, the Company has taken all action necessary to exempt (i)
the
issuance and sale of the Securities, (ii) the issuance of the Conversion Shares
upon due exercise of the Shares, (iii) the issuance of the Warrant Shares upon
due exercise of the Warrants, and (iv) the other transactions contemplated
by
the Transaction Documents from the provisions of any stockholder rights plan
or
other “poison pill” arrangement, any anti-takeover, business combination or
control share law or statute binding on the Company or to which the Company
or
any of its assets and properties may be subject and any provision of the
Company’s Certificate of Incorporation or Bylaws that is or could reasonably be
expected to become applicable to the Investors as a result of the transactions
contemplated hereby, including without limitation, the issuance of the
Securities and the ownership, disposition or voting of the Securities by the
Investors or the exercise of any right granted to the Investors pursuant to
this
Agreement or the other Transaction Documents.
4.6 Delivery
of SEC Filings; Business. The Company has made available to the
Investors through the XXXXX system, true and complete copies of the Company’s
most recent Annual Report on Form 10-KSB for the fiscal year ended September
30,
2006 (the “10-KSB”), and all other reports filed by the Company pursuant to the
1934 Act since the filing of the 10-KSB and prior to the date hereof
(collectively, the “SEC Filings”). The SEC Filings are the only
filings required of the Company pursuant to the 1934 Act for such period and
have been made on a timely basis or the Company has received a valid extension
of such time of filing and has filed any such SEC Filings prior to the
expiration of such extension. The Company and its Subsidiaries are
engaged in all material respects only in the business described in the SEC
Filings and the SEC Filings contain a complete and accurate description in
all
material respects of the business of the Company and its Subsidiaries, taken
as
a whole.
4.7 Use
of Proceeds. The net proceeds of the sale of the Shares and the
Warrants hereunder shall be used by the Company for working capital and general
corporate purposes.
4.8 No
Material Adverse Change. Since September 30, 2006, except as
identified and described in the SEC Filings or as described on Schedule
4.8, there has not been:
(i) any
change in the consolidated assets, liabilities, financial condition or operating
results of the Company from that reflected in the financial statements included
in the Company’s Quarterly Report on Form 10-QSB for the quarter ended June 30,
2007, except for changes in the ordinary course of business which have not
had
and could not reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate;
(ii) any
declaration or payment of any dividend, or any authorization or payment of
any
distribution, on any of the capital stock of the Company, or any redemption
or
repurchase of any securities of the Company;
(iii) any
material damage, destruction or loss, whether or not covered by insurance to
any
assets or properties of the Company or its Subsidiaries;
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(iv) any
waiver, not in the ordinary course of business, by the Company or any Subsidiary
of a material right or of a material debt owed to it;
(v) any
satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company or a Subsidiary, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results or business of the Company and its Subsidiaries
taken as a whole (as such business is presently conducted and as it is proposed
to be conducted);
(vi) any
change or amendment to the Company's Certificate of Incorporation or Bylaws,
or
material change to any material contract or arrangement by which the Company
or
any Subsidiary is bound or to which any of their respective assets or properties
is subject;
(vii) any
material labor difficulties or labor union organizing activities with respect
to
employees of the Company or any Subsidiary;
(viii) any
material transaction entered into by the Company or a Subsidiary other than
in
the ordinary course of business;
(ix) the
loss of the services of any key employee, or material change in the composition
or duties of the senior management of the Company or any
Subsidiary;
(x) the
loss or threatened loss of any customer which has had or could reasonably be
expected to have a Material Adverse Effect; or
(xi) any
other event or condition of any character that has had or could reasonably
be
expected to have a Material Adverse Effect.
4.9 SEC
Filings.
(a) At
the time of filing thereof, the SEC Filings complied as to form in all material
respects with the requirements of the 1934 Act and did 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.
(b) Each
registration statement and any amendment thereto filed by the Company since
January 1, 2004 pursuant to the 1933 Act and the rules and regulations
thereunder, as of the date such statement or amendment became effective,
complied as to form in all material respects with the 1933 Act and did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
made therein not misleading; and each prospectus filed pursuant to Rule 424(b)
under the 1933 Act, as of its issue date and as of the closing of any sale
of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact
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required
to be stated therein or necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading.
4.10 No
Conflict, Breach, Violation or Default. The execution, delivery
and performance of the Transaction Documents by the Company and the issuance
and
sale of the Securities will not conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default under (i) the
Company’s Certificate of Incorporation or the Company’s Bylaws, both as in
effect on the date hereof (true and complete copies of which have been made
available to the Investors through the XXXXX system), or (ii)(a) any statute,
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company, any Subsidiary or
any
of their respective assets or properties, or (b) any agreement or instrument
to
which the Company or any Subsidiary is a party or by which the Company or a
Subsidiary is bound or to which any of their respective assets or properties
is
subject.
4.11 Tax
Matters. The Company and each Subsidiary has timely prepared and
filed all tax returns required to have been filed by the Company or such
Subsidiary with all appropriate governmental agencies and timely paid all taxes
shown thereon or otherwise owed by it. The charges, accruals and
reserves on the books of the Company in respect of taxes for all fiscal periods
are adequate in all material respects, and there are no material unpaid
assessments against the Company or any Subsidiary nor, to the Company’s
Knowledge, any basis for the assessment of any additional taxes, penalties
or
interest for any fiscal period or audits by any federal, state or local taxing
authority except for any assessment which is not material to the Company and
its
Subsidiaries, taken as a whole. All taxes and other assessments and
levies that the Company or any Subsidiary is required to withhold or to collect
for payment have been duly withheld and collected and paid to the proper
governmental entity or third party when due. There are no tax liens
or claims pending or, to the Company’s Knowledge, threatened against the Company
or any Subsidiary or any of their respective assets or
property. Except as described on Schedule 4.11, there are no
outstanding tax payment or tax sharing agreements or other such arrangements
between the Company and any Subsidiary or other corporation or
entity.
4.12 Title
to Properties. Except as disclosed in the SEC Filings or as
described on Schedule 4.12, the Company and each Subsidiary has good and
marketable title to all real properties and all other properties and assets
owned by it, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use made
or
currently planned to be made thereof by them; and except as disclosed in the
SEC
Filings, the Company and each Subsidiary holds any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or currently planned to be made thereof
by them.
4.13 Certificates,
Authorities and Permits. Except as disclosed in the 10-KSB or as
described on Schedule 4.13, the Company and each Subsidiary possess
adequate certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by it, and
neither the Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authority
or
permit that, if determined adversely to the Company or such
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Subsidiary,
could reasonably be expected to have a Material Adverse Effect, individually
or
in the aggregate.
4.14 Labor
Matters.
(a) Except
as set forth on Schedule 4.14, the Company is not a party to or bound by
any collective bargaining agreements or other agreements with labor
organizations. The Company has not violated in any material respect
any laws, regulations, orders or contract terms, affecting the collective
bargaining rights of employees, labor organizations or any laws, regulations
or
orders affecting employment discrimination, equal opportunity employment, or
employees’ health, safety, welfare, wages and hours.
(b) (i)
There are no labor disputes existing, or to the Company's Knowledge, threatened,
involving strikes, slow-downs, work stoppages, job actions, disputes, lockouts
or any other disruptions of or by the Company's employees, (ii) there are no
unfair labor practices or petitions for election pending or, to the Company's
Knowledge, threatened before the National Labor Relations Board or any other
federal, state or local labor commission relating to the Company's employees,
(iii) no demand for recognition or certification heretofore made by any labor
organization or group of employees is pending with respect to the Company and
(iv) to the Company's Knowledge, the Company enjoys good labor and employee
relations with its employees and labor organizations.
(c) The
Company is, and at all times has been, in compliance in all material respects
with all applicable laws respecting employment (including laws relating to
classification of employees and independent contractors) and employment
practices, terms and conditions of employment, wages and hours, and immigration
and naturalization. There are no claims pending against the Company
before the Equal Employment Opportunity Commission or any other administrative
body or in any court asserting any violation of Title VII of the Civil Rights
Act of 1964, the Age Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or
any other federal, state or local Law, statute or ordinance barring
discrimination in employment.
(d) The
Company is not a party to, or bound by, any employment or other contract or
agreement that contains any severance, termination pay or change of control
liability or obligation, including, without limitation, any “excess parachute
payment,” as defined in Section 2806(b) of the Internal Revenue
Code.
(e) Except
as specified in Schedule 4.14, each of the Company's employees who works
in the United States is a Person who is either a United States citizen or a
permanent resident entitled to work in the United States. To the
Company's Knowledge, the Company has no liability for the improper
classification by the Company of such employees as independent contractors
or
leased employees prior to the Closing.
4.15 Intellectual
Property.
(a) All
Intellectual Property of the Company and its Subsidiaries is currently in
compliance with all legal requirements (including timely filings, proofs and
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payments
of fees) and, to the Company’s Knowledge, is valid and
enforceable. No Intellectual Property of the Company or its
Subsidiaries which is necessary for the conduct of Company’s and each of its
Subsidiaries’ respective businesses as currently conducted or as currently
proposed to be conducted has been or is now involved in any cancellation,
dispute or litigation, and, to the Company’s Knowledge, no such action is
threatened. No patent of the Company or its Subsidiaries has been or
is now involved in any interference, reissue, re-examination or opposition
proceeding.
(b) All
of the licenses and sublicenses and consent, royalty or other agreements
concerning Intellectual Property which are necessary for the conduct of the
Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted to which the Company or
any
Subsidiary is a party or by which any of their assets are bound (other than
generally commercially available, non-custom, off-the-shelf software
application programs having a retail acquisition price of less than $10,000
per
license) (collectively, “License Agreements”) are valid and binding obligations
of the Company or its Subsidiaries that are parties thereto and, to the
Company’s Knowledge, the other parties thereto, enforceable in accordance with
their terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors’ rights generally, and
there exists no event or condition which will result in a material violation
or
breach of or constitute (with or without due notice or lapse of time or both)
a
default by the Company or any of its Subsidiaries under any such License
Agreement.
(c) The
Company and its Subsidiaries own or have the valid right to use all of the
Intellectual Property that is necessary for the conduct of the Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted and for the ownership, maintenance and
operation of the Company’s and its Subsidiaries’ properties and assets, free and
clear of all liens, encumbrances, adverse claims or obligations to license
all
such owned Intellectual Property and Confidential Information, other than
licenses entered into in the ordinary course of the Company’s and its
Subsidiaries’ businesses. The Company and its Subsidiaries have a
valid and enforceable right to use all third party Intellectual Property and
Confidential Information used or held for use in the respective businesses
of
the Company and its Subsidiaries.
(d) To
the Company’s Knowledge, the conduct of the Company’s and its Subsidiaries’
businesses as currently conducted does not infringe or otherwise impair or
conflict with (collectively, “Infringe”) any Intellectual Property rights of any
third party or any confidentiality obligation owed to a third party, and, to
the
Company’s Knowledge, the Intellectual Property and Confidential Information of
the Company and its Subsidiaries which are necessary for the conduct of
Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted are not being Infringed
by
any third party. There is no litigation or order pending or
outstanding or, to the Company’s Knowledge, threatened or imminent, that seeks
to limit or challenge or that concerns the ownership, use, validity or
enforceability of any Intellectual Property or Confidential Information of
the
Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of
11
any
Intellectual Property or Confidential Information owned by a third party, and,
to the Company’s Knowledge, there is no valid basis for the same.
(e) The
consummation of the transactions contemplated hereby and by the other
Transaction Documents will not result in the alteration, loss, impairment of
or
restriction on the Company’s or any of its Subsidiaries’ ownership or right to
use any of the Intellectual Property or Confidential Information which is
necessary for the conduct of Company’s and each of its Subsidiaries’ respective
businesses as currently conducted or as currently proposed to be
conducted.
(f) The
Company and its Subsidiaries have taken reasonable steps to protect the
Company’s and its Subsidiaries’ rights in their Intellectual Property and
Confidential Information. Each employee, consultant and contractor
who has had access to Confidential Information which is necessary for the
conduct of Company’s and each of its Subsidiaries’ respective businesses as
currently conducted or as currently proposed to be conducted has executed an
agreement to maintain the confidentiality of such Confidential Information
and
has executed appropriate agreements that are substantially consistent with
the
Company’s standard forms thereof. Except under confidentiality
obligations, there has been no material disclosure of any of the Company’s or
its Subsidiaries’ Confidential Information to any third party.
4.16 Environmental
Matters. Neither the Company nor any Subsidiary is in violation
of any statute, rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “Environmental Laws”), owns or operates any real
property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, or is subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim has had or could
reasonably be expected to have a Material Adverse Effect, individually or in
the
aggregate; and there is no pending or, to the Company’s Knowledge, threatened
investigation that might lead to such a claim.
4.17 Litigation. Except
as described on Schedule 4.17, there are no pending actions, suits or
proceedings against or affecting the Company, its Subsidiaries or any of its
or
their properties; and to the Company’s Knowledge, no such actions, suits or
proceedings are threatened or contemplated. Except as described on
Schedule 4.17, neither the Company nor any Subsidiary, nor any director
or officer thereof, is or since January 1, 2004 has been the subject of any
action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty with respect to the
Company. There has not been, and to the Company’s Knowledge, there is
not pending or contemplated, any investigation by the SEC involving the Company
or any current or former director or officer of the Company. The SEC
has not issued any stop order or other order suspending the effectiveness of
any
registration statement filed by the Company or any Subsidiary under the 1933
Act
or the 1934 Act.
4.18 Financial
Statements. The financial statements included in each SEC Filing
present fairly, in all material respects, the consolidated financial position
of
the Company
12
as
of the
dates shown and its consolidated results of operations and cash flows for the
periods shown, and such financial statements have been prepared in conformity
with United States generally accepted accounting principles applied on a
consistent basis (“GAAP”) (except as may be disclosed therein or in the notes
thereto, and, in the case of quarterly financial statements, as permitted by
Form 10-QSB under the 1934 Act). Except as set forth in the financial
statements of the Company included in the SEC Filings filed prior to the date
hereof or as described on Schedule 4.18, neither the Company nor any of
its Subsidiaries has incurred any liabilities, contingent or otherwise, except
those incurred in the ordinary course of business, consistent (as to amount
and
nature) with past practices since the date of such financial statements, none
of
which, individually or in the aggregate, have had or could reasonably be
expected to have a Material Adverse Effect.
4.19 Insurance
Coverage. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
the
Company and the Subsidiaries are engaged, including, but not limited to,
directors and officers insurance coverage at least equal to the aggregate
Purchase Price. To the Company’s Knowledge, its current insurance
carriers have not notified the Company that any of them will not be able or
willing to renew its existing insurance coverage as and when such coverage
expires.
4.20 Brokers
and Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of the Company, other than as
described in Schedule 4.20.
4.21 No
Directed Selling Efforts or General Solicitation. Neither the
Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation
D) in
connection with the offer or sale of any of the Securities.
4.22 No
Integrated Offering. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any
offers to buy any security, under circumstances that would adversely affect
reliance by the Company on Section 4(2) for the exemption from registration
for
the transactions contemplated hereby or would require registration of the
Securities under the 1933 Act.
4.23 Private
Placement. Subject to the accuracy of the Investors’
representations in Section 5 of this Agreement, the offer and sale of the
Securities to the Investors as contemplated hereby is exempt from the
registration requirements of the 1933 Act.
4.24 Questionable
Payments. Neither the Company nor any
of its Subsidiaries nor, to the Company’s Knowledge, any of their respective
current or former stockholders, directors, officers, employees, agents or other
Persons acting on behalf of the Company or any Subsidiary, has on behalf of
the
Company or any Subsidiary or in connection with their
13
respective
businesses: (a) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (b)
made any direct or indirect unlawful payments to any governmental officials
or
employees from corporate funds; (c) established or maintained any unlawful
or
unrecorded fund of corporate monies or other assets; (d) made any false or
fictitious entries on the books and records of the Company or any Subsidiary;
or
(e) made any unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment of any nature.
4.25 Transactions
with Affiliates. Except as disclosed on Schedule 4.25,
none of the officers or directors of the Company and, to the Company’s
Knowledge, none of the employees of the Company is presently a party to any
transaction with the Company or any Subsidiary (other than as holders of stock
options and/or warrants, and 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 Company’s Knowledge, any entity in which
any officer, director, or any such employee has a substantial interest or is
an
officer, director, trustee or partner.
4.26 Internal
Controls. The Company is in material compliance with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the
Company. 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 GAAP 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.
The
Company has established disclosure controls and procedures (as defined in 1934
Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure
controls and procedures to ensure that material information relating to the
Company, including the Subsidiaries, is made known to the certifying officers
by
others within those entities, particularly during the period in which the
Company’s most recently filed periodic report under the 1934 Act, as the case
may be, is being prepared. The Company's certifying officers have
evaluated the effectiveness of the Company's controls and procedures as of
the
end of the period covered by the most recently filed periodic report under
the
1934 Act (such date, the "Evaluation Date"). The Company presented in
its most recently filed periodic report under the 1934 Act the conclusions
of
the certifying officers about the effectiveness of the disclosure controls
and
procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no significant
changes in the Company's internal controls (as such term is defined in Item
308
of Regulation S-K) or, to the Company's Knowledge, in other factors that could
significantly affect the Company's internal controls. The Company
maintains and will continue to maintain a standard system of accounting
established and administered in accordance with GAAP and the applicable
requirements of the 1934 Act.
4.27 Listing
and Maintenance Requirements. The Company’s Common Stock is
registered pursuant to Section 12(g) of the 1934 Act, and the Company has taken
no action
14
designed
to, or which to its knowledge is likely to have the effect of, terminating
the
registration of the Common Stock under the 1934 Act nor has the Company received
any notification that the SEC is contemplating terminating such
registration. The Company has not, in the 12 months preceding the
date hereof, received notice from any Trading Market on which the Common Stock
is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading Market.
The Company is, and has no reason to believe that it will not in the foreseeable
future continue to be, in compliance with all such listing and maintenance
requirements.
4.28 Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is
in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as does not,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect.
4.29 Accountants. To
the Knowledge of the Company, the accountants, who the Company expects will
express their opinion with respect to the financial statements to be included
in
the Company’s Annual Report on Form 10-KSB for the year ending September 30,
2007 are a registered public accounting firm as required by the 1933
Act.
4.30 Seniority. Except
as described on Schedule 4.30, as of the Closing Date, no indebtedness
for borrowed money or equity of the Company is senior to the Preferred Stock
in
right of payment, whether with respect to interest or upon liquidation or
dissolution, or otherwise, other than indebtedness secured by purchase money
security interests (which is senior only as to underlying assets covered
thereby) and capital lease obligations (which is senior only as to the property
covered thereby).
4.31 No
Disagreements with Accountants and Lawyers. There are no
disagreements of any kind presently existing, or reasonably anticipated by
the
Company to arise, between the Company and the accountants and lawyers formerly
or presently employed by the Company and the Company is current with respect
to
any fees billed within the past ninety (90) days from its accountants and
lawyers.
4.32 Manipulation
of Price. The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to
pay
to any person any compensation for soliciting another to purchase any other
securities of the Company, other than,
15
in
the
case of each of clauses (ii) and (iii), compensation paid to the Company’s
placement agent in connection with the placement of the Securities.
4.33 Disclosures. Neither
the Company nor any Person acting on its behalf has provided the Investors
or
their agents or counsel with any information that constitutes or might
constitute material, non-public information, other than the terms of the
transactions contemplated hereby. The written materials delivered to
the Investors in connection with the transactions contemplated by the
Transaction Documents do not contain any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading.
5.
Representations and Warranties of the
Investors. Each of the Investors hereby severally, and not
jointly, represents and warrants to the Company that:
5.1 Organization
and Existence. Such Investor is a validly existing corporation,
limited partnership or limited liability company and has all requisite
corporate, partnership or limited liability company power and authority to
invest in the Securities pursuant to this Agreement, and was not formed solely
for the purpose of investing in the Securities.
5.2 Authorization. The
execution, delivery and performance by such Investor of the Transaction
Documents to which such Investor is a party have been duly authorized and will
each constitute the valid and legally binding obligation of such Investor,
enforceable against such Investor in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors’ rights generally.
5.3 Purchase
Entirely for Own Account. The Securities to be received by such
Investor hereunder will be acquired for such Investor’s own account, not as
nominee or agent, and not with a view to the resale or distribution of any
part
thereof in violation of the 1933 Act, and such Investor has no present intention
of selling, granting any participation in, or otherwise distributing the same
in
violation of the 1933 Act without prejudice, however, to such Investor’s right
at all times to sell or otherwise dispose of all or any part of such Securities
in compliance with applicable federal and state securities
laws. Nothing contained herein shall be deemed a
representation or warranty by such Investor to hold the Securities for any
period of time. Neither such Investor nor any Affiliate of such
Investor is a broker-dealer registered with the SEC under the 1934 Act or an
entity engaged in a business that would require it to be so
registered.
5.4 Investment
Experience. Such Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Securities and has
such
knowledge and experience in financial or business matters that it is capable
of
evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure
of Information. Such Investor has had an opportunity to receive
all information related to the Company requested by it and to ask questions
of
and receive answers from the Company regarding the Company, its business, the
terms and
16
conditions
of the offering of the Securities and the risk factors included in the Company’s
SEC Filings. Such Investor acknowledges receipt of copies of the SEC
Filings. Neither such inquiries nor any other due diligence
investigation conducted by such Investor shall modify, limit or otherwise affect
such Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement.
5.6 Restricted
Securities. Such Investor 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 or otherwise transferred without registration
under the 1933 Act only in certain limited circumstances.
5.7 Legends. It
is understood that, except as provided below, certificates evidencing the
Securities may bear the following or any similar legend:
(a) “The
securities represented hereby may not be transferred unless (i) such securities
have been registered for sale pursuant to the Securities Act of 1933, as
amended, (ii) such securities may be sold pursuant to Rule 144(k), or (iii)
the
Company has received an opinion of counsel reasonably satisfactory to it that
such transfer may lawfully be made without registration under the Securities
Act
of 1933 or qualification under applicable state securities laws.”
(b) If
required by the authorities of any state in connection with the issuance of
sale
of the Securities, the legend required by such state authority.
5.8 Accredited
Investor. Such Investor is an accredited investor as defined in
Rule 501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No
General Solicitation. Such Investor did not learn of the
investment in the Securities as a result of any general solicitation or general
advertising.
5.10 Brokers
and Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of such Investor.
5.11 Prohibited
Transactions. During the last thirty (30) days prior to the date
hereof, neither such Investor nor any Affiliate of such Investor which (x)
had
knowledge of the transactions contemplated hereby, (y) has or shares discretion
relating to such Investor’s investments or trading or information concerning
such Investor’s investments, including in respect of the Securities, or (z) is
subject to such Investor’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading Affiliates”) has, directly or
indirectly, effected or agreed to effect any short sale, whether or not against
the box, established any “put equivalent position” (as defined in Rule 16a-1(h)
under the 0000 Xxx) with respect to the Common Stock, granted any other right
(including, without limitation, any put or call option)
17
with
respect to the Common Stock or with respect to any security that includes,
relates to or derived any significant part of its value from the Common Stock
or
otherwise sought to hedge its position in the Securities (each, a “Prohibited
Transaction”). Prior to the earliest to occur of (i) the termination
of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline,
such Investor shall not, and shall cause its Trading Affiliates not to, engage,
directly or indirectly, in a Prohibited Transaction. Such Investor
acknowledges that the representations, warranties and covenants contained in
this Section 5.11 are being made for the benefit of the Investors as well as
the
Company and that each of the other Investors shall have an independent right
to
assert any claims against such Investor arising out of any breach or violation
of the provisions of this Section 5.11.
6. Conditions
to Closing.
6.1 Conditions
to the Investors’ Obligations. The obligation of each Investor to purchase
the Shares and the Warrants at the Closing is subject to the fulfillment to
such
Investor’s satisfaction, on or prior to the Closing Date, of the following
conditions, any of which may be waived by such Investor (as to itself
only):
(a) The
representations and warranties made by the Company in Section 4 hereof qualified
as to materiality shall be true and correct at all times prior to and on the
Closing Date, except to the extent any such representation or warranty expressly
speaks as of an earlier date, in which case such representation or warranty
shall be true and correct as of such earlier date, and, the representations
and
warranties made by the Company in Section 4 hereof not qualified as to
materiality shall be true and correct in all material respects at all times
prior to and on the Closing Date, except to the extent any such representation
or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct in all material respects
as
of such earlier date. The Company shall have performed in all
material respects all obligations and covenants herein required to be performed
by it on or prior to the Closing Date.
(b) The
Company shall have obtained any and all consents, permits, approvals,
registrations and waivers necessary or appropriate for consummation of the
purchase and sale of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents, all of which shall
be in
full force and effect.
(c) The
Company shall have executed and delivered the Registration Rights
Agreement.
(d) The
Certificate of Designations shall have been filed with the Secretary of State
of
Delaware and shall have become effective.
(e) The
Company shall receive gross proceeds at least equal to the Minimum
Amount.
(f) No
judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order
of
or
18
by
any
governmental authority, shall have been issued, and no action or proceeding
shall have been instituted by any governmental authority, enjoining or
preventing the consummation of the transactions contemplated hereby or in the
other Transaction Documents.
(g) The
Company shall have delivered a Certificate, executed on behalf of the Company
by
its Chief Executive Officer or its Chief Financial Officer, dated as of the
Closing Date, certifying to the fulfillment of the conditions specified in
subsections (a), (b), (d), (e), (f) and (j) of this Section 6.1.
(h) The
Company shall have delivered a Certificate, executed on behalf of the Company
by
its Secretary, dated as of the Closing Date, certifying the resolutions adopted
by the Board of Directors of the Company approving the transactions contemplated
by this Agreement and the other Transaction Documents and the issuance of the
Securities, certifying the current versions of the Certificate of Incorporation
and Bylaws of the Company and certifying as to the signatures and authority
of
persons signing the Transaction Documents and related documents on behalf of
the
Company.
(i) The
Investors purchasing Shares and Warrants at the Initial Closing shall have
received an opinion from Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP, the
Company's counsel, dated as of the Closing Date, in form and substance
reasonably acceptable to the Investors and addressing such legal matters as
the
Investors may reasonably request.
(j) No
stop order or suspension of trading shall have been imposed by the SEC or any
other governmental or regulatory body with respect to public trading in the
Common Stock.
6.2 Conditions
to Obligations of the Company. The Company's obligation to sell and issue
the Shares and the Warrants at the Closing is subject to the fulfillment to
the
satisfaction of the Company on or prior to the Closing Date of the following
conditions, any of which may be waived by the Company:
(a) The
representations and warranties made by the Investors in Section 5 hereof, other
than the representations and warranties contained in Sections 5.3, 5.4, 5.5,
5.6, 5.7, 5.8 and 5.9 (the “Investment Representations”), shall be true and
correct in all material respects when made, and shall be true and correct in
all
material respects on the Closing Date with the same force and effect as if
they
had been made on and as of said date. The Investment Representations
shall be true and correct in all respects when made, and shall be true and
correct in all respects on the Closing Date with the same force and effect
as if
they had been made on and as of said date. The Investors shall have
performed in all material respects all obligations and covenants herein required
to be performed by them on or prior to the Closing Date.
(b) The
Investors shall have executed and delivered the Registration Rights
Agreement.
19
(c) The
Company shall have received at least the Minimum Amount from the
Investors.
6.3 Termination
of Obligations to Effect Closing; Effects.
(a) The
obligations of the Company, on the one hand, and the Investors, on the other
hand, to effect the Closing shall terminate as follows:
(i) Upon
the mutual written consent of the Company and the Investors;
(ii) By
the Company if any of the conditions set forth in Section 6.2 shall have become
incapable of fulfillment, and shall not have been waived by the
Company;
(iii) By
an Investor (with respect to itself only) if any of the conditions set forth
in
Section 6.1 shall have become incapable of fulfillment, and shall not have
been
waived by the Investor; or
(iv) By
either the Company or any Investor (with respect to itself only) if the Closing
has not occurred on or prior to December 31, 2007;
provided,
however, that, except in the case of clause (i) above, the party seeking to
terminate its obligation to effect the Closing shall not then be in breach
of
any of its representations, warranties, covenants or agreements contained in
this Agreement or the other Transaction Documents if such breach has resulted
in
the circumstances giving rise to such party’s seeking to terminate its
obligation to effect the Closing.
(b) In
the event of termination by the Company or any Investor of its obligations
to
effect the Closing pursuant to this Section 6.3, written notice thereof shall
forthwith be given to the other Investors and the other Investors shall have
the
right to terminate their obligations to effect the Closing upon written notice
to the Company and the other Investors. Nothing in this Section 6.3
shall be deemed to release any party from any liability for any breach by such
party of the terms and provisions of this Agreement or the other Transaction
Documents or to impair the right of any party to compel specific performance
by
any other party of its obligations under this Agreement or the other Transaction
Documents.
7.
Covenants and Agreements of the
Company.
7.1 Reservation
of Common Stock. The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely
for
the purpose of providing for the conversion of the Preferred Stock and the
exercise of the Warrants, such number of shares of Common Stock as shall from
time to time equal the Conversion Shares and the Warrant Shares.
20
7.2 Reports. The
Company will furnish to the Investors and/or their assignees such information
relating to the Company and its Subsidiaries as from time to time may reasonably
be requested by the Investors and/or their assignees; provided, however, that
the Company shall not disclose material nonpublic information to the Investors,
or to advisors to or representatives of the Investors, unless prior to
disclosure of such information the Company identifies such information as being
material nonpublic information and provides the Investors, such advisors and
representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain such
information enters into an appropriate confidentiality agreement with the
Company with respect thereto.
7.3 No
Conflicting Agreements. The Company will not take any action,
enter into any agreement or make any commitment that would conflict or interfere
in any material respect with the Company’s obligations to the Investors under
the Transaction Documents.
7.4 Insurance. The
Company shall not materially reduce the insurance coverages described in Section
4.19.
7.5 Compliance
with Laws. The Company will comply in all material respects with
all applicable laws, rules, regulations, orders and decrees of all governmental
authorities.
7.6 Listing
of Underlying Shares and Related Matters. If the Company applies
to have its Common Stock or other securities traded on a stock exchange or
market, it shall include in such application the Conversion Shares and the
Warrant Shares and will take such other action as is necessary to cause such
Common Stock to be so listed. The Company will use commercially
reasonable efforts to continue the listing and trading of its Common Stock
on
such stock exchange or market and, in accordance, therewith, will use
commercially reasonable efforts to comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of such
exchange or market, as applicable.
7.7 Integration. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the 0000 Xxx)
that would be integrated with the offer or sale of the Securities in a manner
that would require the registration under the 1933 Act of the sale of the
Securities to the Investors or that would be integrated with the offer or sale
of the Securities for purposes of the rules and regulations of any applicable
exchange or market on which the Common Stock is listed or quoted.
7.8 Termination
of Covenants. The provisions of Sections 7.2 through 7.7 shall
terminate and be of no further force and effect on the date on which the
Company’s obligations under the Registration Rights Agreement to register or
maintain the effectiveness of any registration covering the Registrable
Securities (as such term is defined in the Registration Rights Agreement) shall
terminate.
7.9 Removal
of Legends. Upon the earlier of (i) registration for resale
pursuant to the Registration Rights Agreement or (ii) Rule 144(k) becoming
available the Company shall (A) deliver to the transfer agent for the Common
Stock (the “Transfer Agent”)
21
irrevocable
instructions that the Transfer Agent shall reissue a certificate representing
shares of Common Stock without legends upon receipt by such Transfer Agent
of
the legended certificates for such shares, together with either (1) a customary
representation by the Investor that Rule 144(k) applies to the shares of Common
Stock represented thereby or (2) a statement by the Investor that such Investor
has sold the shares of Common Stock represented thereby in accordance with
the
Plan of Distribution contained in the Registration Statement, and (B) cause
its
counsel to deliver to the Transfer Agent one or more blanket opinions to the
effect that the removal of such legends in such circumstances may be effected
under the 1933 Act. From and after the earlier of such dates, upon an
Investor’s written request, the Company shall promptly cause certificates
evidencing the Investor’s Securities to be replaced with certificates which do
not bear such restrictive legends, and Conversion Shares subsequently issued
upon due exercise of the Preferred Stock and Warrant Shares subsequently issued
upon due exercise of the Warrants shall not bear such restrictive legends
provided the provisions of either clause (i) or clause (ii) above, as
applicable, are satisfied with respect to such Conversion Shares or Warrant
Shares, as applicable. When the Company is required to cause
unlegended certificates to replace previously issued legended certificates,
if
unlegended certificates are not delivered to an Investor within three (3)
Business Days of submission by that Investor of legended certificate(s) to
the
Transfer Agent as provided above (or to the Company, in the case of the
Warrants), the Company shall be liable to the Investor for liquidated damages
in
an amount equal to 1.5% of the aggregate purchase price of the Securities
evidenced by such certificate(s) for each thirty (30) day period (or portion
thereof) beyond such three (3) Business Day that the unlegended certificates
have not been so delivered.
7.10 Subsequent
Equity Sales.
(a) From
the date hereof until ninety (90) days after the Effective Date, without the
consent of the Investors acquiring a majority of the Shares pursuant to this
Agreement, neither the Company nor any Subsidiary shall issue shares of Common
Stock or Common Stock Equivalents; provided, however, the ninety (90) day period
set forth in this Section shall be extended for the number of days during such
period in which (i) trading in the Common Stock is suspended by any exchange
or
market on which the Common Stock is listed or quoted, or (ii) following the
Effective Date, the Registration Statement is not effective or the prospectus
included in the Registration Statement may not be used by the Investors for
the
resale of the Conversion Shares or Warrant Shares.
(b) From
the date hereof until such time as the Investors no longer hold a majority
of
the Shares purchased hereunder, the Company shall be prohibited from effecting
or entering into an agreement to effect any Subsequent Financing involving
a
“Variable Rate Transaction”. The term “Variable Rate Transaction”
shall mean a transaction in which the Company issues or sells (i) any debt
or
equity securities that are convertible into, exchangeable or exercisable for,
or
include the right to receive additional shares of Common Stock either (A) at
a
conversion, exercise or exchange rate or other price that is based upon and/or
varies with the trading prices of or quotations for the shares of Common Stock
at any time after the initial issuance of such debt or equity securities, or
(B)
with a conversion, exercise or exchange price that is subject to being reset
at
some future date after the initial issuance of such debt or equity security
or
upon the occurrence of specified or contingent events directly or indirectly
related to
22
the
business of the Company or the market for the Common Stock or (ii) enters into
any agreement, including, but not limited to, an equity line of credit, whereby
the Company may sell securities at a future determined price.
(c) Notwithstanding
the foregoing, this Section shall not apply in respect of an Excluded Stock,
except that no Variable Rate Transaction shall be an Excluded
Stock.
7.11 Equal
Treatment of Investors. No consideration shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision
of any of the Transaction Documents unless the same consideration is also
offered to all of the parties to the Transaction Documents. For
clarification purposes, this provision constitutes a separate right granted
to
each Investor by the Company and negotiated separately by each Investor, and
is
intended for the Company to treat the Investors as a class and shall not in
any
way be construed as the Investors acting in concert or as a group with respect
to the purchase, disposition or voting of Securities or otherwise.
8.
Survival and Indemnification.
8.1 Survival. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing of the transactions contemplated by this
Agreement; provided, however, that the representations and warranties contained
in this Agreement shall expire twelve (12) months after the
Closing.
8.2 Indemnification. Subject
to the provisions of Section 8.1, the Company agrees to indemnify and hold
harmless each Investor and its Affiliates and their respective directors,
officers, employees and agents from and against any and all losses, claims,
damages, liabilities and expenses (including without limitation reasonable
attorney fees and disbursements and other expenses incurred in connection with
investigating, preparing or defending any action, claim or proceeding, pending
or threatened and the costs of enforcement thereof) (collectively, “Losses”) to
which such Person may become subject as a result of any breach of
representation, warranty, covenant or agreement made by or to be performed
on
the part of the Company under the Transaction Documents, and will reimburse
any
such Person for all such amounts as they are incurred by such
Person.
8.3 Conduct
of
Indemnification Proceedings. Promptly
after receipt by any Person (the “Indemnified Person”) of
notice of any demand, claim or circumstances which would or might give rise
to a
claim or the commencement of any action, proceeding or investigation in respect
of which indemnity may be sought pursuant to Section 8.2, such Indemnified
Person shall promptly notify the Company in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Person, and shall assume the payment of all fees and
expenses; provided, however, that the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of
its
obligations hereunder except to the extent that the Company is materially
prejudiced by such failure to notify. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the
fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company and the Indemnified Person shall
23
have
mutually agreed to the retention of such counsel; or (ii) in the reasonable
judgment of counsel to such Indemnified Person representation of both parties
by
the same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not be liable for any
settlement of any proceeding effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Company shall indemnify and
hold harmless such Indemnified Person from and against any loss or liability
(to
the extent stated above) by reason of such settlement or
judgment. Without the prior written consent of the Indemnified
Person, which consent shall not be unreasonably withheld, the Company shall
not
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
arising out of such proceeding.
9.
Miscellaneous.
9.1 Successors
and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investors, as
applicable, provided, however, that an Investor may assign its rights and
delegate its duties hereunder in whole or in part to an Affiliate or to a third
party acquiring some or all of its Securities in a private transaction without
the prior written consent of the Company or the other Investors, after notice
duly given by such Investor to the Company provided, that no such assignment
or
obligation shall affect the obligations of such Investor
hereunder. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
9.2 Counterparts;
Faxes. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement
may also be executed via facsimile, which shall be deemed an
original.
9.3 Titles
and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
9.4 Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given
by
an internationally recognized overnight air courier, then such notice shall
be
deemed given one
24
Business
Day after delivery to such carrier. All notices shall be addressed to
the party to be notified at the address as follows, or at such other address
as
such party may designate by ten days’ advance written notice to the other
party:
|
If
to the
Company:
|
|
Caprius,
Inc.
|
|
Xxx
Xxxxxxxxxx Xxxxx
|
|
Xxxxxxxxxx,
XX 00000
|
|
Attention: Xxxxxx
Xxxxxx, President
|
|
Fax: (000)
000-0000
|
|
With
a copy
to:
|
|
Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP
|
|
000
Xxxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attention: Xxxxx
X. Xxxx, Esq.
|
|
Fax: (000)
000-0000
|
|
If
to the
Investors:
|
|
to
the addresses set forth on the signature pages
hereto.
|
9.5 Expenses. The
parties hereto shall pay their own costs and expenses in connection herewith,
except that the Company shall pay the reasonable fees and expenses of Xxxxxxxxxx
Xxxxxxx PC not to exceed $25,000; it being understood that Xxxxxxxxxx Xxxxxxx
PC
has only rendered legal advice to the Special Situations Funds participating
in
this transaction and not to the Company or any other Investor in connection
with
the transactions contemplated hereby, and of Xxxxxxxx & Xxxxx not to exceed
$10,000; it being understood that Xxxxxxxx & Xxxxx has only rendered legal
advice to the Biomedical Value Funds participating in this transaction and
not
to the Company or any other Investor in connection with the transactions
contemplated hereby; that each of the Company and each Investor has relied
for
such matters on the advice of its own respective counsel. Such
expenses shall be paid not later than the Closing. The Company shall
reimburse the Investors upon demand for all reasonable out-of-pocket expenses
incurred by the Investors, including without limitation reimbursement of
attorneys’ fees and disbursements, in connection with any amendment,
modification or waiver of this Agreement or the other Transaction
Documents. In the event that legal proceedings are commenced by any
party to this Agreement against another party to this Agreement in connection
with this Agreement or the other Transaction Documents, the party or parties
which do not prevail in such proceedings shall severally, but not jointly,
pay
their pro rata share of the reasonable attorneys’ fees and other reasonable
out-of-pocket costs and expenses incurred by the prevailing party in such
proceedings.
9.6 Amendments
and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a
25
particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Investors. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder
of
any Securities purchased under this Agreement at the time outstanding, each
future holder of all such Securities, and the Company.
9.7 Publicity. Except
as set forth below, no public release or announcement concerning the
transactions contemplated hereby shall be issued by the Company or the Investors
without the prior consent of the Company (in the case of a release or
announcement by the Investors) or the Investors (in the case of a release or
announcement by the Company) (which consents shall not be unreasonably
withheld), except as such release or announcement may be required by law or
the
applicable rules or regulations of any securities exchange or securities market,
in which case the Company or the Investors, as the case may be, shall allow
the
Investors or the Company, as applicable, to the extent reasonably practicable
in
the circumstances, reasonable time to comment on such release or announcement
in
advance of such issuance. By 8:30 a.m. (New York City time) on the
trading day immediately following the Closing Date, the Company shall issue
a
press release disclosing the consummation of the transactions contemplated
by
this Agreement. No later than the third trading day following the
Closing Date, the Company will file a Current Report on Form 8-K attaching
the
press release described in the foregoing sentence as well as copies of the
Transaction Documents. In addition, the Company will make such other
filings and notices in the manner and time required by the SEC.
9.8 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision
of
law which renders any provision hereof prohibited or unenforceable in any
respect.
9.9 Entire
Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Transaction Documents constitute the entire
agreement among the parties hereof with respect to the subject matter hereof
and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
9.10 Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and
to
evidence the fulfillment of the agreements herein contained.
9.11 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District
of
New York for
26
the
purpose of any suit, action, proceeding or judgment relating to or arising
out
of this Agreement and the transactions contemplated hereby. Service
of process in connection with any such suit, action or proceeding may be served
on each party hereto anywhere in the world by the same methods as are specified
for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the
laying of venue of any such suit, action or proceeding brought in such courts
and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY
JURY
IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL
HAS
BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
9.12 Independent
Nature of Investors' Obligations and Rights. The obligations of
each Investor under any Transaction Document are several and not joint with
the
obligations of any other Investor, and no Investor shall be responsible in
any
way for the performance of the obligations of any other Investor under any
Transaction Document. The decision of each Investor to purchase
Securities pursuant to the Transaction Documents has been made by such Investor
independently of any other Investor. Nothing contained herein or in
any Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction
Documents. Each Investor acknowledges that no other Investor has
acted as agent for such Investor in connection with making its investment
hereunder and that no Investor will be acting as agent of such Investor in
connection with monitoring its investment in the Securities or enforcing its
rights under the Transaction Documents. Each Investor 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 Investor
to
be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that each of the Investors has been
provided with the same Transaction Documents for the purpose of closing a
transaction with multiple Investors and not because it was required or requested
to do so by any Investor.
[signature
page follows]
27
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
The
Company:
|
CAPRIUS,
INC.
|
|
|
By:
|
/s/ Xxxxxxxx Xxxxx | |
|
Name: Xxxxxxxx
Xxxxx
|
||
|
Title:
Vice President
|
||
28
|
The
Investors:
|
SPECIAL
SITUATIONS FUND III QP, L.P.
|
|
|
By:
|
/s/ Xxxxx Greenhouse | |
|
Name:
Xxxxx Greenhouse
|
||
|
Title:
Managing Director
|
||
|
Address
for Notice:
|
||
|
000
Xxxxxx Xxxxxx
|
||
|
Xxxxx
0000
|
||
|
Xxx
Xxxx, XX 00000
|
||
|
with
a copy to:
|
||
|
Xxxxxxxxxx
Xxxxxxx PC
|
||
|
00
Xxxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attn: Xxxx
X. Xxxxxxxx, Esq.
|
||
|
Telephone: 000.000.0000
|
||
|
Facsimile: 973.597.2400
|
||
|
SPECIAL
SITUATIONS FUND III, L.P.
|
||
|
By:
|
/s/ Xxxxx Greenhouse | |
|
Name:
Xxxxx Greenhouse
|
||
|
Title:
General Partner
|
||
|
Address
for Notice:
|
||
|
000
Xxxxxxx Xxxxxx
|
||
|
Xxxxx
0000
|
||
|
Xxx
Xxxx, XX 00000
|
29
|
with
a copy to:
|
||
|
Xxxxxxxxxx
Xxxxxxx PC
|
||
|
00
Xxxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attn: Xxxx
X. Xxxxxxxx, Esq.
|
||
|
Telephone: 000.000.0000
|
||
|
Facsimile: 973.597.2400
|
||
|
SPECIAL
SITUATIONS PRIVATE EQUITY FUND, L.P.
|
||
|
By:
|
/s/ Xxxxx Greenhouse | |
|
Name:
Xxxxx Greenhouse
|
||
|
Title:
Managing Director
|
||
|
Address
for Notice:
|
||
|
000
Xxxxxxx Xxxxxx
|
||
|
Xxxxx
0000
|
||
|
Xxx
Xxxx, XX 00000
|
||
|
with
a copy to:
|
||
|
Xxxxxxxxxx
Xxxxxxx PC
|
||
|
00
Xxxxxxxxxx Xxxxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
Attn: Xxxx
X. Xxxxxxxx, Esq.
|
||
|
Telephone: 000.000.0000
|
||
|
Facsimile: 973.597.2400
|
||
30
| /s/ XXXXXXX XXXXXXX | ||
|
XXXXXXX
XXXXXXX
|
||
|
Address
for Notice:
|
||
|
c/o
Little Bear Investments LLC
|
||
|
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
|
||
|
Xxx
Xxxx, XX 00000
|
||
| /s/ WOLF PRENSKY | ||
|
WOLF
PRENSKY
|
||
|
Address
for Notice:
|
||
|
00-00
Xxxx Xx,
|
||
|
Xxxx
Xxxx, XX 00000
|
||
| /s/ XXXXXX XXXXX & XXXXXXX XXXXX | ||
|
XXXXXX
XXXXX & XXXXXXX XXXXX
|
||
|
Address
for Notice:
|
31
|
c/o
Little Bear Investments LLC
|
||
|
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
|
||
|
Xxx
Xxxx, XX 00000
|
||
| /s/ XXXXXX XXXXXX | ||
|
XXXXXX
XXXXXX
|
||
|
Address
for Notice:
|
||
|
000
Xxxxxxx Xxxx Xxxx Xxx 00X
|
||
|
Xxx
Xxxx, XX 00000
|
32
|
BIOMEDICAL
VALUE FUND, L.P.
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Managing Director
|
||
|
Address
for Notice:
|
||
|
000
Xxxxx Xxxxxx, 0xx
Xxxxx,
|
||
|
Xxxxxxxxx,
XX 00000
|
||
|
BIOMEDICAL
OFFSHORE VALUE FUND, LTD.
|
||
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Managing Director
|
||
|
Address
for Notice:
|
||
|
000
Xxxxx Xxxxxx, 0xx
Xxxxx,
|
||
|
Xxxxxxxxx,
XX 00000
|
||
33
|
DOLPHIN
OFFSHORE PARTNERS, L.P.
|
||
|
By:
|
/s/ Xxxxx X. Xxxxx | |
|
Name:
Xxxxx X. Xxxxx
|
||
|
Title: General
Partner
|
||
|
Address
for Notice:
|
||
|
c/o
Dolphin Asset Management Corp.
|
||
|
000
Xxxx 00xx Xxxxxx
|
||
|
Xxx
Xxxx, XX 00000
|
34
