AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
Execution
Copy
AMENDED
AND RESTATED SECURITIES PURCHASE AGREEMENT
THIS
AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
(this
“Agreement”),
dated
as of August 3, 2006, by and among FUTUREMEDIA
PLC,
a
corporation organized and existing under the laws of England and Wales (the
“Company”),
and
the Buyers listed on Schedule I attached hereto (individually, a
“Buyer”
or
collectively “Buyers”).
WHEREAS,
the
Company and the Buyer(s) are executing and delivering this Agreement in reliance
upon an exemption from securities registration pursuant to Section 4(2) and/or
Rule 506 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 (the “Securities
Act”);
WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer(s), as provided herein,
and the Buyer(s) shall purchase Nine Million Dollars ($9,000,000) of convertible
notes (the “Convertible
Notes”),
which
shall be convertible into the Company’s Ordinary Shares (as evidenced by
American Depositary Shares, as evidenced by American Depositary Receipts
(the
“Ordinary
Shares”)
(as
converted, the “Conversion
Shares”),
of
which Seven Million Five Hundred Thousand Dollars ($7,500,000) was previously
funded under the convertible debentures dated April 19, 2006 (which shall
be
amended and restated on the date hereof), and One Million Five Hundred Thousand
Dollars ($1,500,000) shall be funded on or before August 4, 2006 (the
“Closing”),
for a
total purchase price of Nine Million Dollars ($9,000,000), (the “Purchase
Price”)
in the
respective amounts set forth opposite each Buyer(s) name on Schedule I (the
“Subscription
Amount”);
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the
parties
hereto are executing and delivering an Amended and Restated Investor
Registration Rights Agreement substantially in the form attached hereto as
Exhibit
A
(the
“Investor
Registration Rights Agreement”)
pursuant to which the Company has agreed to provide certain registration
rights
under the Securities Act and the rules and regulations promulgated there
under,
and applicable state securities laws;
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the
parties
hereto are executing and delivering a Deed of Variation (relating to the
Debentures between the parties dated on or about April 25, 2006) substantially
in the form attached hereto as Exhibit
B
(such
Deed of Variation being referred to herein together with such Debentures
as the
“Debenture”)
pursuant to which the Company has agreed to provide the Buyer a security
interest in Charged Property (as this term is defined in the Debenture) to
secure the Company’s obligations under this Agreement, the Convertible Note, the
Investor Registration Rights Agreement, the Debenture or any other obligations
of the Company to the Buyer;
NOW,
THEREFORE,
in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Buyer(s) hereby agree as follows:
(b) Closing
Date. The Closing of the purchase and sale of the Convertible Notes shall
take
place at 10:00 a.m. Eastern Standard Time on the fifth (5th)
business day following the date hereof, subject to notification of satisfaction
of the conditions to the Closing set forth herein and in Sections 6 and 7
below
(or such other date as is mutually agreed to by the Company and the Buyer(s))
(the “Closing Date”). The Closing shall occur on the respective Closing Dates at
the offices of Yorkville Advisors, LLC, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx
Xxxx, Xxx Xxxxxx 00000 (or such other place as is mutually agreed to by the
Company and the Buyer(s)).
Each
Buyer represents and warrants, severally and not jointly, that:
(b) Accredited
Investor Status. Each Buyer is an “Accredited Investor” as that term is defined
in Rule 501(a)(3) of Regulation D.
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.
THE
SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW
TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS,
OR AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS
NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The
legend set forth above shall be removed and the Company within two (2) business
days shall issue a certificate without such legend to the holder of the
Conversion Shares upon which it is stamped, if, unless otherwise required
by
state securities laws, (i) in connection with a sale transaction, provided
the
Conversion Shares are registered under the Securities Act or (ii) in connection
with a sale transaction, after such holder provides the Company with an opinion
of counsel, which opinion shall be in form, substance and scope customary
for
opinions of counsel in comparable transactions, to the effect that a public
sale, assignment or transfer of the Conversion Shares may be made without
registration under the Securities Act.
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The
Company represents and warrants to each of the Buyers that, except as set
forth
in the SEC Documents (as defined herein):
(c) Capitalization.
As of the date hereof (and before taking into account the transactions
contemplated by this Agreement) the authorized capital stock of the Company
consists of 350,000,000 shares of Ordinary Shares, par value 11/9
xxxxx,
and 2,000,000 shares of Preferred Stock, par value 2 xxxxx (“Preferred Stock”)
of which 163,646,244 Ordinary Shares and zero shares of Preferred Stock are
issued and outstanding. All of such outstanding shares have been validly
issued
and are fully paid and nonassessable. Except as disclosed herein or in the
SEC
Documents (as defined in Section 3(f)), no Ordinary Shares are subject to
preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company. As of the date of this Agreement, there
are outstanding options to purchase an aggregate of 9,422,423 Ordinary Shares
at
exercise process ranging from $0.085 to $1.622 under the Company’s employee
share option plans (such options expire on dates ranging from January 2008
to
October 2015) and warrants to purchase an aggregate of 6,497,128 Ordinary
Shares at an exercise price of $0.61 per share (such warrants expire on July
21,
2010) and warrants to purchase an aggregate of 250,000 Ordinary Shares at
an
exercise price of $0.70 per share (such warrants expire on December 19, 2010)
and warrants to purchase an aggregate of 750,000 Ordinary Shares at an exercise
price of $0.70 per share (such warrants expire on April 25, 2011) and warrants
to purchase an aggregate of 4,000,000 Shares at an exercise price of $0.20
per
share (such warrants expire on April 25, 2011). Except as disclosed herein
or in
the SEC Documents, as of the date of this Agreement, (i) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
subsidiaries, or contracts, commitments, understandings or arrangements by
which
the Company or any of its subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its subsidiaries
or
options, warrants, scrip, rights to subscribe to, calls or commitments of
any
character whatsoever relating to, or securities or rights convertible into,
any
shares of capital stock of the Company or any of its subsidiaries, (ii) there
are no outstanding debt securities and (iii) there are no agreements or
arrangements under which the Company or any of its subsidiaries is obligated
to
register the sale of any of their securities under the Securities Act (except
pursuant to the Investor Registration Rights Agreement and arrangements in
place
between the Company and MAG Capital LLC and its affiliates) and (iv) there
are
no outstanding registration statements and there are no outstanding comment
letters from the SEC or any other regulatory agency. There are no securities
or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Convertible Notes as described in this
Agreement. The Company has furnished to the Buyer true and correct copies
of the
Company’s Articles of Incorporation, as amended and as in effect on the date
hereof (the “Articles of Association”), and the terms of all securities
convertible into or exercisable for Ordinary Shares and the material rights
of
the holders thereof in respect thereto other than stock options issued to
employees and consultants.
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(g) 10(b)-5.
As of their respective dates, the SEC Documents did not include any untrue
statements of material fact, nor did they omit to state any material fact
required to be stated therein necessary to make the statements made, in light
of
the circumstances under which they were made, not misleading.
(i) Acknowledgment
Regarding Buyer’s Purchase of the Convertible Notes. The Company acknowledges
and agrees that the Buyer(s) is acting solely in the capacity of an arm’s length
purchaser with respect to this Agreement and the transactions contemplated
hereby. The Company further acknowledges that the Buyer(s) is not acting
as a
financial advisor or fiduciary of the Company (or in any similar capacity)
with
respect to this Agreement and the transactions contemplated hereby and any
advice given by the Buyer(s) or any of their respective representatives or
agents in connection with this Agreement and the transactions contemplated
hereby is merely incidental to such Buyer’s purchase of the Convertible Notes or
the Conversion Shares. The Company further represents to the Buyer that the
Company’s decision to enter into this Agreement has been based solely on the
independent evaluation by the Company and its representatives.
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(w) Reserved.
4. COVENANTS.
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(i) Each
of
the Company and the Buyer(s) shall pay all costs and expenses incurred by
such
party in connection with the negotiation, investigation, preparation, execution
and delivery of the Transaction Documents. On or about April 19, 2006, the
Company paid Yorkville Advisors, LLC a commitment fee equal to Five Hundred
Sixty Two Thousand Five Hundred Dollars ($562,500). On the date hereof, the
Company shall pay Yorkville Advisors, LLC a commitment fee equal to One Hundred
Twenty Five Thousand Dollars ($125,000), which shall be paid directly from
the
proceeds of the Closing.
(ii) On
or
about April 19, 2006, the Company issued to Cornell Capital Partners, LP
(“Cornell”) an aggregate of 562,500 Ordinary Shares. On the date hereof, the
Company shall issue to Cornell an additional 165,000 Ordinary Shares (the
Ordinary Shares issued on April 19, 2006 and on the date hereof shall
collectively be referred to as the “Investor’s
Shares”).
The
Investor’s Shares shall have “piggy-back” and demand registration
rights.
(iii) On
or
about April 19, 2006, the Company issued to Cornell warrants (the “Warrants”) to
purchase in the aggregate Four Million Seven Hundred Fifty Thousand (4,750,000)
Ordinary Shares as follows: (A) a warrant to purchase 750,000 Ordinary Shares
exercisable for a period of five (5) years at an exercise price of $0.70
per
share and (B) a warrant to purchase 4,000,000 Ordinary Shares exercisable
for a
period of five (5) years at an exercise price of $0.20 per share (the Ordinary
Shares underlying the Warrants shall collectively be referred to as the “Warrant
Shares”). The Warrant Shares shall have “piggy-back” and demand registration
rights.
(iv)
The
Company shall pay a structuring fee to Yorkville Advisors LLC of Twenty Five
Thousand Dollars ($25,000), which shall be paid directly from the proceeds
of
the Closing.
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(j) Reserved.
(k) Restriction
on Issuance of the Capital Stock. So long as any Convertible Notes are
outstanding, the Company shall not, without the prior written consent of
the
Buyer(s) (such consent not to be unreasonably withheld), (i) issue or sell
Ordinary Shares or Preferred Stock without consideration or for a consideration
per share less than the closing bid price (the “Bid Price”) of the Ordinary
Shares, as reported by Bloomberg, LP, determined immediately prior to its
issuance (except for Ordinary Shares issued pursuant to options or other
rights
to acquire Ordinary Shares outstanding on the date hereof, Ordinary Shares
to be
issued or previously issued to Alegro Capital Limited in connection with
the
transaction completed by the Agreement, Ordinary Shares issued pursuant to
options or other rights to acquire Ordinary Shares issued to employees,
directors or consultants pursuant to the Company’s equity incentive plans as
such plans exist on the date hereof, Ordinary Shares issuable pursuant to
the
transactions contemplated by the Securities Purchase Agreement dated July
21,
2005 between the Company and M.A.G. Capital LLC and certain of its affiliates),
and Ordinary Shares issuable to the Buyer or any of its affiliates, (ii)
issue
any warrant, option, right, contract, call, or other security instrument
granting the holder thereof, the right to acquire Ordinary Shares without
consideration or for a consideration less than such Bid Price of the Ordinary
Shares value determined immediately prior to it’s issuance (except for options
or other rights to acquire Ordinary Shares issued to employees, directors
or
consultants pursuant to the Company’s equity incentive plans as such plans exist
on the date hereof and warrants to be issued to Alegro Capital Limited in
connection with the transaction completed by the Agreement), or (iii) file
any
registration statement on Form S-8 (other than in connection with the Company’s
equity incentive plans existing on the date hereof).
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(m) Rights
of
First Refusal. During the period of twelve (12) months from the date hereof,
if
the
Company intends to raise additional capital by the issuance or sale of capital
stock of the Company, including without limitation Ordinary Shares, any class
of
preferred stock, options, warrants or any other securities convertible or
exercisable into Ordinary Shares (whether the offering is conducted by the
Company, underwriter, placement agent or any third party) the Company shall
be
obligated to offer to the Buyers such issuance or sale of capital stock,
by
providing in writing the principal amount of capital it intends to raise
and
outline of the material terms of such capital raise, prior to the offering
such
issuance or sale of capital stock to any third parties including, but not
limited to, current or former officers or directors, current or former
shareholders and/or investors of the obligor, underwriters, brokers, agents
or
other third parties. The Buyers shall have seven (7) trading days from
receipt of such notice of the sale or issuance of capital stock to accept
or
reject all or a portion of such capital raising offer. If the Buyers elect
not
to accept such capital raising offer, or the partiers hereto are unable to
agree
upon definitive terms within thirty (30) days following the commencement
of such
negotiations, the Company shall be permitted to enter into such equity financing
with a third party at any time during the following ninety (90) days provided,
however, that the terms and conditions of such equity financing with the
third
party are not more favorable in any material respect than the terms and
conditions offered to the Buyer(s) pursuant to this Section.
5. Reserved.
The
obligation of the Company hereunder to issue and sell the Convertible Notes
to
the Buyer(s) at the Closing is subject to the satisfaction, at or before
the
Closing Date, of each of the following conditions, provided that these
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion:
(a) Each
Buyer shall have executed the Transaction Documents and delivered them to
the
Company.
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(b) The
Buyer(s) shall have delivered to the Company the Purchase Price for Convertible
Debentures in respective amounts as set forth next to each Buyer as outlined
on
Schedule I attached hereto, minus any fees to be paid directly from the proceeds
the Closings as set forth herein, by wire transfer of immediately available
U.S.
funds pursuant to the wire instructions provided by the Company.
(c) The
representations and warranties of the Buyer(s) shall be true and correct
in all
material respects as of the date when made and as of the Closing Date as
though
made at that time (except for representations and warranties that speak as
of a
specific date), and the Buyer(s) shall have performed, satisfied and complied
in
all material respects with the covenants, agreements and conditions required
by
this Agreement to be performed, satisfied or complied with by the Buyer(s)
at or
prior to the Closing Date.
(a) The
obligation of the Buyer(s) hereunder to Purchase the Convertible Notes at
the
Closing is subject to the satisfaction, at or before the Closing Date, of
each
of the following conditions:
(i) The
Company shall have executed the Transaction Documents and delivered the same
to
the Buyer(s).
(ii) ADSs
representing Ordinary Shares shall be authorized for quotation on the NASDAQ-CM
and trading in the ADSs shall not have been suspended for any reason.
(iii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations
and
warranties is already qualified as to materiality in Section 3 above, in
which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Closing Date
as
though made at that time (except for representations and warranties that
speak
as of a specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by
the
Company at or prior to the Closing Date. If requested by the Buyer, the Buyer
shall have received a certificate, executed by the President of the Company,
dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by the Buyer including, without
limitation an update as of the Closing Date regarding the representation
contained in Section 3(c) above.
(iv) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Notes
in the respective amounts set forth opposite each Buyer(s) name on Schedule
I
attached hereto.
(v) The
Buyer(s) shall have received an opinion of counsel from Xxxxx Xxxxxxx in
a form
satisfactory to the Buyer(s).
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(vi) The
Company shall have provided to the Buyer(s) a certificate of good standing
from
the secretary of state from the state in which the company is
incorporated.
(vii) The
Company shall have filed such forms as may be required to perfect the Buyer’s
interest in the Charged Property as detailed in the Debenture dated the date
hereof and provided proof of such filing to the Buyer(s).
(viii) The
Company shall have provided to the Buyer an acknowledgement, to the satisfaction
of the Buyer, from the Company’s independent registered public accounting firm
as to its ability to provide all consents required in order to file a
registration statement in connection with this transaction.
(ix) The
Company shall have reserved out of its authorized and unissued Ordinary Shares,
solely for the purpose of effecting the conversion of the Convertible Notes,
shares of Ordinary Shares to effect the conversion of all of the Conversion
Shares then outstanding.
8. INDEMNIFICATION.
(a) In
consideration of the Buyer’s execution and delivery of this Agreement and
acquiring the Convertible Notes and the Conversion Shares hereunder, and
in
addition to all of the Company’s other obligations under this Agreement, the
Company shall defend, protect, indemnify and hold harmless the Buyer(s) and
each
other holder of the Convertible Notes and the Conversion Shares, and all
of
their officers, directors, employees and agents (including, without
limitation, those retained in connection with the transactions contemplated
by
this Agreement) (collectively, the “Buyer Indemnitees”) from and against any and
all actions, causes of action, suits, claims, losses, costs, penalties, fees,
liabilities and damages, and expenses in connection therewith (irrespective
of
whether any such Buyer Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees
and disbursements (the “Indemnified Liabilities”), incurred by the Buyer
Indemnitees or any of them as a result of, or arising out of, or relating
to (a)
any misrepresentation or breach of any representation or warranty made by
the
Company in this Agreement, the Convertible Notes or the Investor Registration
Rights Agreement or any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation
of
the Company contained in this Agreement, the Investor Registration Rights
Agreement or any other certificate, instrument or document contemplated hereby
or thereby, or (c) any cause of action, suit or claim brought or made against
such Indemnitee by an unaffiliated third party and arising out of or resulting
from the execution, delivery, performance or enforcement of this Agreement
or
any other instrument, document or agreement executed pursuant hereto by any
of
the parties hereto, any transaction financed or to be financed in whole or
in
part, directly or indirectly, with the proceeds of the issuance of the
Convertible Notes or the status of the Buyer or holder of the Convertible
Notes,
the Conversion Shares, or as a Buyer of Convertible Notes in the Company.
To the
extent that the foregoing undertaking by the Company may be unenforceable
for
any reason, the Company shall make the maximum contribution to the payment
and
satisfaction of each of the Indemnified Liabilities, which is permissible
under
applicable law.
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(b) In
consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Buyer’s other obligations under this Agreement, the Buyer
shall defend, protect, indemnify and hold harmless the Company and all of
its
officers, directors, employees and agents (including, without limitation,
those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the “Company Indemnitees”) from and against any and all
Indemnified Liabilities incurred by the Indemnitees or any of them as a result
of, or arising out of, or relating to (a) any misrepresentation or breach
of any
representation or warranty made by the Buyer(s) in this Agreement, or any
other
certificate, instrument or document contemplated hereby or thereby executed
by
the Buyer, (b) any breach of any covenant, agreement or obligation of the
Buyer(s) contained in this Agreement, the Investor Registration Rights Agreement
or any other certificate, instrument or document contemplated hereby or thereby
executed by the Buyer, or (c) any cause of action, suit or claim brought
or made
against such Company Indemnitee by an unaffiliated third party and arising
out
of or resulting from the execution, delivery, performance or enforcement
of this
Agreement, the Investor Registration Rights Agreement or any other certificate,
instrument, document or agreement executed pursuant hereto by any of the
parties
hereto. To the extent that the foregoing undertaking by each Buyer may be
unenforceable for any reason, each Buyer shall make the maximum contribution
to
the payment and satisfaction of each of the Indemnified Liabilities, which
is
permissible under applicable law.
9. Reserved.
(a) Governing
Law. This Agreement shall be governed by and interpreted in accordance with
the
laws of the State of New Jersey without regard to the principles of conflict
of
laws. The parties further agree that any action between them shall be heard
in
Xxxxxx County, New Jersey, and expressly consent to the jurisdiction and
venue
of the Superior Court of New Jersey, sitting in Xxxxxx County and the United
States District Court for the District of New Jersey sitting in Newark, New
Jersey for the adjudication of any civil action asserted pursuant to this
Paragraph.
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If
to the Company, to:
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Nile
House, Nile Street
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Brighton,
Xxxx Xxxxxx XX0 0XX, Xxxxxx Xxxxxxx
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Attention: Xxxxxxx
Xxxxxx, CEO
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Telephone: x00
0000 000000
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Facsimile: x00
0000 000000
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With
a copy to:
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Xxxx
X. Xxxxx
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Xxxxx
Xxxxxxx
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0
Xxxxxxxx Xxxxxx
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Xxxxxx
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X0X
0XX
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Telephone:
+ 00 00 0000 0000
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Facsimile:
x00 00 0000 0000
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If
to the
Buyer(s), to its address and facsimile number on Schedule I, with copies
to the
Buyer’s counsel as set forth on Schedule I. Each party shall provide five (5)
days’ prior written notice to the other party of any change in address or
facsimile number.
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[REMAINDER
PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
the
Buyers and the Company have caused this Securities Purchase Agreement to
be duly
executed as of the date first written above.
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COMPANY:
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| By: | /s/ Xxxxxxx Xxxxxx | |
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Name: Xxxxxxx
Xxxxxx
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Title: CEO
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Execution
Copy
EXHIBIT
A
FORM
OF INVESTOR REGISTRATION RIGHTS AGREEMENT
Execution
Copy
EXHIBIT
B
FORM
OF DEED OF VARIATION
Execution
Copy
SCHEDULE
I
SCHEDULE
OF BUYERS
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Name
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Signature
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Address/Facsimile
Number
of Buyer
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Amount
of Subscription
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Cornell
Capital Partners, LP
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By: Yorkville Advisors, LLC |
000
Xxxxxx Xxxxxx - Xxxxx 0000
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$7,000,000
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| Its: General Partner |
Xxxxxx
Xxxx, XX 00000
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Facsimile: (000)
000-0000
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| By: |
/s/
Xxxx Xxxxxx
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Name: Xxxx
Xxxxxx
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Its: Portfolio
Manager
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Certain
Wealth, Ltd.
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C/o
TAIB Securities, Inc.
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$1,000,000
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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| By: |
/s/
Xxxxx Xxxxxxx
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Name: Xxxxx
Xxxxxxx
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TAIB
Bank, B.S.C.(c)
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C/o
TAIB Securities, Inc.
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$1,000,000
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000
Xxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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| By: |
/s/
Xxxxx Xxxxxxx
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Name: Xxxxx
Xxxxxxx
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With
a copy to:
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Xxxx
Xxxxx, Esq.
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000
Xxxxxx Xxxxxx - Xxxxx 0000
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Xxxxxx
Xxxx, XX 00000
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Facsimile:
(000) 000-0000
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