Exhibit 10.23
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of July 27, 2007, by
and between FREEHAND SYSTEMS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), and VISION OPPORTUNITY MASTER FUND, LTD., a Cayman Islands limited
company ( "Buyer").
WHEREAS:
A. The Company and Buyer are executing and delivering this
Agreement and the securities described herein in reliance upon the exemption
from securities registration afforded by Rule 506 of Regulation D ("Regulation
D") as promulgated by the United States Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act").
B. Subject to the terms and conditions set forth in this
Agreement, on the Closing Date (as defined herein), Buyer will purchase from the
Company certain senior secured notes, substantially in the form attached as
Exhibit A in the principal amount of $1,500,000 (the "Notes"), and warrants,
substantially in the form attached as Exhibit B, to purchase 5,000,000 common
stock, par value $0.001 per share ("Common Stock") at an exercise price of $0.65
per share ("Warrants"; the Common Stock issuable upon exercise of the Warrants
being referred to as the "Warrant Shares").
C. Contemporaneously with the execution of this Agreement, the
Company and Buyer are executing and delivering a Security Agreement,
substantially in the form attached as Exhibit C (as the same may be amended,
supplemented, restated or modified and in effect from time to time, the
"Security Agreement"), pursuant to which the Company and its wholly owned
subsidiary, Freehand Systems, Inc., a Nevada corporation ("FSI"), will agree to
provide Buyer with a security interest in all of the assets of the Company and
FSI, subject to certain exceptions.
D. Contemporaneously with the execution of this Agreement, FSI is
executing and delivering a Guaranty Agreement (as the same may be amended,
supplemented, restated or modified and in effect from time to time, the
"Guaranty Agreement"), pursuant to which FSI will unconditionally guarantee the
Company's performance of its obligations under this Agreement and the Notes.
NOW THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and Buyer agree as
follows:
1. PURCHASE AND SALE OF NOTES.
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a. Purchase of Notes. Subject to the satisfaction (or
waiver) of the conditions set forth in Sections 5 below, on the Closing Date (as
defined in Section 1(b)), the Company shall issue and sell to Buyer, and Buyer
agrees to purchase from the Company (the "Closing"), the Notes for an aggregate
purchase price of $1,500,000 (the "Purchase Price") and the Warrants.
b. The Closing Date. The date and time of the Closing
(the "Closing Date") shall be three (3) Business Days from the date hereof,
subject to the satisfaction (or waiver) of all of the conditions set forth
herein, or such later date and time as is mutually agreed to by the Company and
Buyer. The Closing shall occur at the offices of Xxxxx & XxXxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, or at such other place as the
Company and Buyer may jointly designate in writing.
c. Form of Payment. On the Closing Date, Buyer shall pay
to the Company the Purchase Price by wire transfer of immediately available
funds in accordance with the Company's written wire instructions, and the
Company shall deliver to Buyer the Notes (in such principal amounts as Buyer
shall request) (the "Note Certificates") representing the principal amount of
the Notes and warrants representing the Warrants, in each case duly executed on
behalf of the Company.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
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Buyer represents and warrants, as of the date of this Agreement, as of
the Closing Date, that:
a. Organization. Buyer is a corporation, limited
liability company or partnership duly incorporated or organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization.
b. Authorization; Enforcement; Validity. Each of this
Agreement, the Security Agreement and the other agreements entered into and
executed by Buyer in connection with the transactions contemplated hereby and
thereby has been duly authorized, validly executed and delivered by Buyer and is
a valid and binding agreement and obligation of Buyer enforceable against Buyer
in accordance with its terms, subject to limitations on enforcement by general
principles of equity and by bankruptcy or other laws affecting the enforcement
of creditors' rights generally, and Buyer has full power and authority to
execute and deliver the Agreement, the Security Agreement and the other
agreements and documents contemplated hereby and to perform its obligations
hereunder and thereunder.
c. Investment Purpose. Buyer is acquiring the Notes, the
Warrants, and upon any exercise of the Warrants, will acquire the Warrant Shares
issuable upon such exercise thereof (the Notes, the Warrants and the Warrant
Shares being collectively referred to herein as the "Securities") for Buyer's
own account and not with a view towards to or for sale in connection with
distribution. Buyer does not have a present intention to sell any of the
Securities, nor a present arrangement (whether or not legally binding) or
intention to effect any distribution of any of the Securities to or through any
person or entity; provided, however, that by making the representations herein,
Buyer does not agree to hold the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in
accordance with Federal and state securities laws applicable to such
disposition. Buyer acknowledges that it (i) has such knowledge and experience in
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financial and business matters such that Buyer is capable of evaluating the
merits and risks of Buyer's investment in the Company, (ii) is able to bear the
financial risks associated with an investment in the Securities and (iii) has
been given full access to such records of the Company and its subsidiaries and
to the officers of the Company and the subsidiaries as it has deemed necessary
or appropriate to conduct its due diligence investigation.
d. Reliance on Exemptions. Buyer understands that the
Securities are being offered and sold to it in reliance on specific provisions
of Federal and state securities laws and that the Company is relying upon the
truth and accuracy of the representations, warranties, agreements,
acknowledgments and understandings of Buyer set forth herein for purposes of
qualifying for exemptions from registration under the 1933 Act and applicable
state securities laws. Buyer understands that no United States federal or state
agency or any government or governmental agency has passed upon or made any
recommendation or endorsement of the Securities.
e. Accredited Investor Status. Buyer is an "accredited
investor" (as defined in Rule 501 of Regulation D), and Buyer has such
experience in business and financial matters that it is capable of evaluating
the merits and risks of an investment in the Securities. Buyer is not required
to be registered as a broker-dealer under Section 15 of the Securities Exchange
Act of 1934, as amended, and Buyer is not a broker-dealer. Buyer acknowledges
that an investment in the Securities is speculative and involves a high degree
of risk.
f. Transfer or Resale. The offer and sale of the
Securities is intended to be exempt from registration under the Securities Act,
by virtue of Section 4(2) thereof. Buyer understands that the Securities
purchased hereunder have not been, and may never be, registered under the 1933
Act and that none of the Securities can be sold or transferred unless they are
first registered under the Securities Act and such state and other securities
laws as may be applicable or the Company receives an opinion of counsel
reasonably acceptable to the Company that an exemption from registration under
the 1933 Act is available (and then the Securities may be sold or transferred
only in compliance with such exemption and all applicable state and other
securities laws). Buyer acknowledges that such person is familiar with Rule 144
of the rules and regulations of the SEC as amended, promulgated pursuant to the
1933 Act ("Rule 144"), and that Buyer has been advised that Rule 144 permits
resales only under certain circumstances. Buyer understands that to the extent
that Rule 144 is not available, Buyer will be unable to sell any Securities
without either registration under the 1933 Act or the existence of another
exemption from such registration requirement.
g. No Broker. Buyer has not employed any broker or
finder or incurred any liability for any brokerage or investment banking fees,
commissions, finders' structuring fees, financial advisory fees or other similar
fees in connection with any of the transactions contemplated by this Agreement.
h. No General Solicitation. Buyer acknowledges that the
Securities were not offered to Buyer by means of any form of general or public
solicitation or general advertising, or publicly disseminated advertisements or
sales literature, including (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar media, or
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broadcast over television or radio, or (ii) any seminar or meeting to which
Buyer was invited by any of the foregoing means of communications. Buyer, in
making the decision to purchase the Securities, has relied upon independent
investigation made by it and the representations, warranties and agreements set
forth in this Agreement and the other transaction documents and has not relied
on any information or representations made by third parties.
i. Legends. Buyer understands that the certificates or
other instruments representing the Notes, the Warrants and, until such time (if
ever) as the sale of the Warrant Shares has been registered under the 1933 Act,
the certificates representing the Warrant Shares, except as set forth below,
shall bear a restrictive legend in the following form (the "1933 Act Legend")
(and a stop-transfer order may be placed against transfer of such certificates):
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 MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II)
UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.
Upon the written request to the Company of a holder of a certificate or other
instrument representing Notes, Warrants or Warrant Shares, the 1933 Act Legend
shall be removed, and the Company shall issue a certificate without the 1933 Act
Legend to the holder of the Securities upon which it is stamped, if (i) such
Securities are registered for resale under the 1933 Act, (ii) in connection with
a sale transaction, such holder provides the Company with an opinion of counsel,
in a generally acceptable form, to the effect that a public sale, assignment or
transfer of the Securities may be made without registration under the 1933 Act,
(iii) such holder provides the Company with reasonable assurances that the
Securities can be sold pursuant to Rule 144(k) promulgated under the 1933 Act
(or a successor rule thereto), or (iv) such holder provides the Company
reasonable assurances that the Securities have been or are being sold pursuant
to Rule 144.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants as of the date hereof and as of the
Closing Date to Buyer, that:
a. Organization and Qualification.
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(i) All of the direct and indirect subsidiaries
of the Company are set forth on Schedule 3(a). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each
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Subsidiary free and clear of any Liens, and all the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights to subscribe for
or purchase securities.
(ii) The Company has been duly incorporated and
is validly existing and in good standing under the laws of the state of
Delaware, with full corporate power and authority to own, lease and operate its
properties and to conduct its business as currently conducted, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
to register or qualify would not have a Material Adverse Effect.
(iii) For purposes of this Agreement, "Material
Adverse Effect" shall mean any effect on the business, results of operations,
prospects, assets or financial condition of the Company that is material and
adverse to the Company and its subsidiaries and affiliates, taken as a whole
and/or any condition, circumstance, or situation that would prohibit or
otherwise materially interfere with the ability of the Company from entering
into and performing any of its obligations under this Agreement in any material
respect. "Lien" means, with respect to any asset, any mortgage, lien, pledge,
hypothecation, charge, security interest, encumbrance or adverse claim of any
kind and any restrictive covenant, condition, restriction or exception of any
kind that has the practical effect of creating a mortgage, lien, pledge,
hypothecation, charge, security interest, encumbrance or adverse claim of any
kind (including any of the foregoing created by, arising under or evidenced by
any conditional sale or other title retention agreement, the interest of a
lessor with respect to a Capital Lease Obligation, or any financing lease having
substantially the same economic effect as any of the foregoing); "Subsidiary"
means any entity in which a Person, directly or indirectly, owns capital stock
or holds an equity or similar interest at the time of this Agreement or at any
time hereafter); "Capital Lease Obligation" means, as to any Person, any
obligation that is required to be classified and accounted for as a capital
lease on a balance sheet of such Person prepared in accordance with GAAP, and
the amount of such obligation shall be the capitalized amount thereof,
determined in accordance with GAAP; "GAAP" means U.S. generally accepted
accounting principles.
b. Authorization; Enforcement; Validity. The Company has
the requisite corporate power and authority to enter into and perform its
obligations under each of this Agreement, the Warrants, the Notes and the
Security Agreement (collectively, the "Transaction Documents"), and to issue the
Securities in accordance with the terms hereof and thereof. The execution and
delivery of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated herein and therein, including the
issuance of the Notes and the Warrants, and the reservation for issuance and the
issuance of the Warrant Shares issuable upon exercise of the Warrants, have been
duly authorized by the board of directors, members, managers and stockholders or
other equityholders, as applicable, of the Company and no further consent or
authorization is required by the Company. This Agreement and the other
Transaction Documents dated of even date herewith have been duly executed and
delivered by the Company and constitute the valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance
or similar laws affecting creditors' rights generally and general principles of
equity.
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c. Issuance of Warrant Shares. The Warrant Shares are
duly authorized and, upon issuance in accordance with the terms hereof or upon
exercise of the Warrants, as applicable, will be validly issued, fully paid and
nonassessable and free from taxes and Liens with respect to the issuance
thereof, with the holders being entitled to all rights accorded to a holder of
Common Stock. The Notes and the Warrants are duly authorized and, upon issuance
in accordance with the terms hereof, will be (i) free from all taxes and Liens
with respect to the issuance thereof and (ii) entitled to the rights set forth
therein.
d. No Conflicts. Except as set forth on Schedule 3(e),
the execution and delivery of this Agreement and the other Transaction Documents
by the Company, the performance by the Company of its obligations hereunder and
thereunder and the consummation by the Company of the transactions contemplated
hereby and thereby will not (i) conflict with or result in a breach of or a
default under any of the terms or provisions of, (A) the Company's certificate
of incorporation or by-laws, or (B) of any material provision of any indenture,
mortgage, deed of trust or other material agreement or instrument to which the
Company is a party or by which it or any of its material properties or assets is
bound, (ii) result in a violation of any provision of any law, statute, rule,
regulation, or any existing applicable decree, judgment or order by any court,
Federal or state regulatory body, administrative agency, or other governmental
body having jurisdiction over the Company, or any of its material properties or
assets or (iii) result in the creation or imposition of any material lien,
charge or encumbrance upon any material property or assets of the Company or any
of its subsidiaries pursuant to the terms of any agreement or instrument to
which any of them is a party or by which any of them may be bound or to which
any of their property or any of them is subject except in the case of clauses
(i)(B), (ii) or (iii) for any such conflicts, breaches, or defaults or any
liens, charges, or encumbrances which would not have a Material Adverse Effect.
e. Exemptions. The delivery and issuance of the
Securities in accordance with the terms of and in reliance on the accuracy of
Buyer's representations and warranties set forth in this Agreement will be
exempt from the registration requirements of the Securities Act.
f. No Consent. No consent, approval or authorization of
or designation, declaration or filing with any governmental authority on the
part of the Company is required in connection with the valid execution and
delivery of this Agreement or the other Transaction Documents or the offer, sale
or issuance of the Securities or the consummation of any other transaction
contemplated by this Agreement and by the other Transaction Documents (other
than the filing described in Section 4(b) and the filing of instruments to
perfect security interests or any filings with the SEC or pursuant to any state
or "blue sky" securities laws subsequent to the Closing).
g. Absence of Litigation. Except as set forth on
Schedule 3(h), there is no action, suit, claim, investigation or proceeding
pending or, to the knowledge of the Company, threatened against the Company
which questions the validity of this Agreement or the other Transaction
Documents or the transactions contemplated hereby or thereby or any action taken
or to be taken pursuant thereto. There is no action, suit, claim, investigation
or proceeding pending or, to the knowledge of the Company, threatened, against
or involving the Company or any Subsidiary, or any of their respective
properties or assets which, if adversely determined, is reasonably likely to
result in a Material Adverse Effect.
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h. No General Solicitation. The Company has complied and
will comply with all applicable federal and state securities laws in connection
with the offer, issuance and delivery of the Securities hereunder. Neither the
Company nor anyone acting on its behalf, directly or indirectly, has or will
sell, offer to sell or solicit offers to buy any of the Securities, or similar
securities to, or solicit offers with respect thereto from, or enter into any
preliminary conversations or negotiations relating thereto with, any person, or
has taken or will take any action so as to bring the issuance and sale of any of
the Securities under the registration provisions of the 1933 Act and applicable
state securities laws. Neither the Company nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with the offer or sale of any of the Notes.
i. No Broker. The Company has not employed any broker or
finder or incurred any liability for any brokerage or investment banking fees,
commissions, finders' structuring fees, financial advisory fees or other similar
fees in connection with any of the transactions contemplated by this Agreement
or the other Transaction Document.
4. COVENANTS.
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a. Additional issuance of warrants. The Company hereby
agrees to issue warrants to Buyer to purchase an additional five million
(5,000,000) shares of the Common Stock on identical terms with the Warrants
unless, by the first anniversary of the Closing Date: (A) the Common Stock has
been listed and traded on a nationally recognized Trading Market, and (B) the
daily trading volume of Common Stock with a closing bid price of not less than
$1.50 is more than $50,000 for 20 consecutive days. For purpose of this
agreement, "Trading Market" means the following markets or exchanges on which
the Common Stock is listed or quoted for trading on the date in question: the
Nasdaq Capital Market, the American Stock Exchange, the New York Stock Exchange,
the Nasdaq National Market or the OTC Bulletin Board.
b. Security Covenants. From the date of this Agreement
until the first date following the Closing on which no Notes are outstanding and
the Security Agreement has terminated (the "Reporting Period"), the Company
shall, at its own respective cost and expense, cause to be promptly and duly
taken, executed, acknowledged and delivered all such further acts, documents and
assurances as may from time to time be necessary or as Buyer may from time to
time request in order to carry out the intent and purposes of this Agreement and
the Security Agreement and the transactions contemplated hereby and thereby,
including all such actions to establish, create, preserve, protect and perfect a
first priority Lien (subject only to Permitted Liens) in favor of Buyer on the
Collateral (as defined in the Security Agreement, and including Collateral
acquired after the date hereof), including on any and all assets of the Company,
whether now owned or hereafter acquired, subject to certain exclusions set forth
in the Security Agreement. As used in this Agreement, "Permitted Liens" means
(I) Liens created by the Security Agreement; (II) Liens for taxes or other
governmental charges not at the time due and payable, or (if foreclosure,
distraint sale or other similar proceeding shall not have been initiated) which
are being contested in good faith by appropriate proceedings diligently
prosecuted, so long as foreclosure, distraint, sale or other similar proceedings
have not been initiated, and in each case for which the Company maintains
adequate reserves in accordance with GAAP in respect of such taxes and charges;
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(III) Liens arising in the ordinary course of business in favor of carriers,
warehousemen, mechanics and materialmen, or other similar Liens imposed by law,
which remain payable without penalty or which are being contested in good faith
by appropriate proceedings diligently prosecuted, which proceedings have the
effect of preventing the forfeiture or sale of the property subject thereto, and
in each case for which adequate reserves in accordance with GAAP are being
maintained; (IV) Liens arising in the ordinary course of business in connection
with worker's compensation, unemployment compensation and other types of social
security; (V) attachments, appeal bonds (and cash collateral securing such
bonds), judgments and other similar Liens, for sums not exceeding $100,000 in
the aggregate for the Company arising in connection with court proceedings,
provided that the execution or other enforcement of such Liens is effectively
stayed; (VI) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens arising in the ordinary course
of business and not materially detracting from the value of the property subject
thereto and not interfering in any material respect with the ordinary conduct of
the business of the Company; and (VII) Liens arising solely by virtue of any
statutory or common law provision relating to banker's liens, rights of set-off
or similar rights and remedies and burdening only deposit accounts or other
funds maintained with a creditor depository institution, provided that no such
deposit account is a dedicated cash collateral account or is subject to
restrictions against access by the depositor in excess of those set forth by
regulations promulgated by the Board of Governors of the U.S. Federal Reserve
System and that no such deposit account is intended by the Company to provide
collateral to the depository institution;
5. CONDITIONS TO THE CLOSING
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a. Conditions to the Obligations of the Company to
Close. The obligation of the Company to issue and sell the Notes and the
Warrants to Buyer 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 by providing Buyer with prior written notice
thereof:
(i) Buyer shall have executed and delivered to
the Company this Agreement and the Security Agreement.
(ii) Buyer shall have delivered to the Company
the Purchase Price, by wire transfer of immediately available funds pursuant to
the wire instructions provided by the Company.
(iii) The representations and warranties of Buyer
herein shall be true and correct 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, which shall be true and correct as of such date),
and Buyer shall have performed, satisfied and complied with the covenants,
agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by Buyer at or prior to the Closing Date.
b. Conditions to Buyer's Obligation To Close. The
obligation of Buyer to purchase the Notes 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 Buyer's sole benefit and may
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be waived only by Buyer at any time in its sole discretion by providing the
Company with prior written notice thereof:
(i) The Company shall have duly executed and
delivered to Buyer this Agreement and the Security Agreement at or prior to the
Closing.
(ii) The Company shall have executed and
delivered to Buyer the Note Certificates.
(iii) FSI shall have executed and delivered to
Buyer the Guaranty Agreement.
(iv) The Company shall have delivered to Buyer a
secretary's certificate, dated as of the Closing Date, certifying as to (A) a
certified copy of the resolutions of the board of directors of the Company
authorizing the transactions contemplated by this Agreement and the other
Transaction Documents, (B) the Certificate of Incorporation, certified as of a
date within ten (10) days of the Closing Date, by the Secretary of State of
Delaware, and (C) the Bylaws.
(v) Each of the representations and warranties
of the Company shall be true and correct in all 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 particular date, which shall
be true and correct in all respects as of such date.
(vi) No statute, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement or the other Transaction Documents at or prior to the Closing Date.
(vii) As of the Closing Date, no action, suit or
proceeding before or by any court or governmental agency or body, domestic or
foreign, shall be pending against or affecting the Company, or any of its
properties, which questions the validity of the Agreement or the transactions
contemplated thereby or any action taken or to be taken pursuant thereto. As of
the Closing Date, no action, suit, claim or proceeding before or by any court or
governmental agency or body, domestic or foreign, shall be pending against or
affecting the Company, or any of its properties, which, if adversely determined,
is reasonably likely to result in a Material Adverse Effect.
(viii) At the Closing, Buyer shall have received
the opinion of counsel to the Company, dated as of the Closing Date, in the form
of Exhibit D hereto.
(ix) The Company shall have given, executed,
delivered, filed and/or recorded all financing statements, notices, instruments,
documents, agreements and other papers that may be necessary or desirable (in
the reasonable judgment of Buyer) to create, preserve, perfect or validate the
security interest in all of the assets of the Company granted to Buyer pursuant
to the Security Agreement and to enable Buyer to exercise and enforce its rights
with respect to such security interest.
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(x) No Material Adverse Effect shall have
occurred at or before the Closing Date.
6. INDEMNIFICATION. Each party hereto hereby agrees to indemnify
and hold harmless the other party hereto and such party's officers, directors,
shareholders, employees, agents and attorneys against any and all losses,
claims, damages, liabilities and reasonable expenses (collectively "Claims")
incurred by each such person in connection with defending or investigating any
such Claims, whether or not resulting in any liability to such person, to which
any such indemnified party may become subject, insofar as such Claims arise out
of or are based upon any breach of any representation or warranty or agreement
made by the indemnifying party in this Agreement.
7. MISCELLANEOUS.
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a. Fees and Expenses. Each party shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and
all other expenses, incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement, provided,
however, that the Company shall pay all reasonable attorneys' fees and expenses
(exclusive of disbursements and out-of-pocket expenses) incurred by Buyer in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Transaction Documents.
b. Price Adjustment of [Series C Convertible Preferred
Stock]. The conversion price of the [Series C Convertible Preferred Stock\ of
the Company held by Buyer shall be reduced to $0.50 from $0.75.
c. Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York without giving effect to the rules governing the conflicts
of laws. Each of the parties consents to the exclusive jurisdiction of the
Federal courts whose districts encompass any part of the County of New York
located in the City of New York in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions. Each party waives its
right to a trial by jury. Each party to this Agreement irrevocably consents to
the service of process in any such proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to such party at its address
set forth herein. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law.
d. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement.
e. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
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f. Severability. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
g. Entire Agreement; Amendments; Waiver. This Agreement
supersedes all other prior oral or written agreements between Buyer and the
Company and Persons acting on their behalf with respect to the matters discussed
herein, and this Agreement and the instruments referenced herein contain the
entire understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein, neither the
Company nor Buyer makes any representation, warranty, covenant or undertaking
with respect to such matters. No provision of this Agreement may be amended,
modified or supplemented other than by an instrument in writing signed by the
Company and Buyer. Any such amendment shall bind all holders of the Notes and
the Warrants. No such amendment shall be effective to the extent that it applies
to less than all of the holders of the Notes and the Warrants then outstanding.
Any provision of this Agreement or any of the other Transaction Documents, or
any breach thereof, may be waived; provided, that, any such waiver will be
binding on a Person only if such waiver is set forth in a writing executed by
such Person. The waiver by any party hereto of any provision of this Agreement
or any of the Other Transaction Documents, or any breach thereof, shall not
operate or be construed as a waiver of any other provision of this Agreement or
of the other Transaction Documents or any other (or subsequent) breach of the
same or any other provision of this Agreement or any of the other Transaction
Documents.
h. Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one (1) Business Day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
(a) if to the Company:
FreeHand Systems International, Inc.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxx, President and CEO
Tel. No.: (000) 000-0000 Fax No.: (000) 000-0000
with a copy to:
11
Xxxxx & XxXxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx Xxxxxxxx, Esq.
Tel. No: (000) 000-0000
Fax No.: (000) 000-0000
(b) if to the Holder:
Vision Opportunity Master Fund, Ltd.
00 X 00xx Xx., 0xx xxxxx
Xxx Xxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Antti Uusiheimala
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Tel No.: (000) 000-0000
Fax No.: (000) 000-0000
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by a nationally recognized overnight delivery service shall be
rebuttable evidence of personal service, receipt by facsimile or deposit with a
nationally recognized overnight delivery service in accordance with clause (A),
(B) or (C) above, respectively.
i. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of the Securities. The Company
shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the holders of at least two-thirds (2/3) of the
aggregate principal of the Notes then outstanding. Buyer may assign some or all
of its rights hereunder; provided, however, that any such assignment shall not
release Buyer from its obligations hereunder unless such obligations are assumed
by such assignee (as evidenced in writing) and the Company has provided written
consent to such assignment and assumption, which consent shall not be
unreasonably withheld. Notwithstanding anything to the contrary contained in the
Transaction Documents, Buyer shall be entitled to pledge the Securities in
connection with a bona fide margin account or other loan or financing
arrangement secured by the Securities.
j. No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns and, to the extent provided in Section 6 hereof, each
12
Buyer Party, and is not for the benefit of any other Person. No provision hereof
may be enforced by any Person other than Buyer or the Company.
k. Survival. The representations and warranties of the
Company and Buyer contained in Sections 2 and 3, the agreements and covenants
set forth in Sections 4 and 7, and the indemnification provisions set forth in
Section 6, shall survive the Closings.
l. Termination: this Agreement may be terminated prior
to Closing:
(i) by mutual written agreement of Buyer and the
Company; and
(ii) by the Company or Buyer upon written notice
to the other parties hereto, if the Closing shall not have taken place by 6:30
p.m. Eastern time on September 1, 2007; provided, that the right to terminate
this Agreement under this Section shall not be available to any Person whose
failure to comply with its obligations under this Agreement has been the cause
of or resulted in the failure of the Closing to occur on or before such time.
Upon a termination in accordance with this Section, the
Company and Buyer shall not have any further obligation or liability (including
as arising from such termination) to the other except pursuant to Section 6.
m. No Strict Construction. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
n. Remedies. Buyer and each holder of the Securities
shall have all rights and remedies set forth in the Transaction Documents and
all rights and remedies that Buyer and holders have been granted at any time
under any other agreement or contract and all of the rights that Buyer and
holders have under any law. Any Person having any rights under any provision of
this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security or proving actual damages), to recover damages
by reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
o. Interpretative Matters. Unless the context otherwise
requires, (a) all references to Sections, Schedules or Exhibits are to Sections,
Schedules or Exhibits contained in or attached to this Agreement, (b) each
accounting term not otherwise defined in this Agreement has the meaning assigned
to it in accordance with GAAP, (c) words in the singular or plural include the
singular and plural and pronouns stated in either the masculine, the feminine or
neuter gender shall include the masculine, feminine and neuter, (d) any
representations or warranties in Section 3 that are qualified by a Person's
"knowledge" are limited by knowledge with respect to that Person only but are
not so limited with respect to the other Persons making the representation or
warranty, and (e) the use of the word "including" in this Agreement shall be by
way of example rather than limitation.
* * * * * *
13
IN WITNESS WHEREOF, Buyer and the Company have caused this Securities
Purchase Agreement to be duly executed as of the date first written above.
THE COMPANY:
FREEHAND SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxx Xxxx
-----------------------------
Name: Xxx Xxxx
Title: President and CEO
BUYER:
VISION OPPORTUNITY MASTER FUND, LTD.
By:_____________________________________
Name:
Title:
[Signature page to the Securities Purchase Agreement]
