EXHIBIT 10.13
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT is made by and between Raptor Networks
Technology, Inc., a Colorado corporation (the "Company") and
____________________________________________________ (the "Investor") (the
Company and the Investor may be referred to collectively as the "Parties").
In connection with the offering by the Company of up to $600,000 of 8%
Convertible Notes of the Company (the "Notes"), issuable at $50,000 per Note,
the Parties hereto agree as follows:
ARTICLE 1
THE SECURITIES
SECTION 1.01. THE SECURITIES.
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The securities subscribed for hereby consist of ten of the Company's
Notes. The Note shall be in substantially the form attached hereto, the terms of
which are hereby incorporated herein as if such Note were fully set forth
herein.
SECTION 1.02. LEGENDS; REGISTRATION UNDER THE SECURITIES ACT OF 1933.
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As of the date of this Agreement, neither the Notes nor the shares of
common stock of the Company into which the Notes may be converted (the "Note
Shares") have been registered under the Securities Act of 1933, as amended (the
"Act"). Each of the Notes and the Note Shares shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (ii) TO
THE EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR
RULE UNDER THE ACT RELATING TO THE DISPOSITION OF SECURITIES),
OR (iii) AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE
REASONABLY SATISFACTORY TO COUNSEL TO THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE
LAW IS AVAILABLE.
This offering is not a public offering and is intended to be made
pursuant to Section 4(2) of the Act and Regulation D as promulgated by the
Securities and Exchange Commission ("SEC") under the Act. This offering is also
intended to be exempt from the registration requirements of various state
securities laws as may be applicable.
SECTION 1.03. CLOSING DATE.
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The purchase and sale of the Notes will take place at one or more closings
(each referred to herein as the "Closing") at the offices of the Company at
a time and date as soon as practicable after all the conditions set forth
in Articles III and IV hereof have been satisfied (each, a "Closing Date"),
or at such other location as the Investor and the Company shall agree.
SECTION 1.04. DELIVERY.
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At the Closing, the Company shall deliver to the Investor the Notes
that each Investor is purchasing against payment of the purchase price therefor
by check, wire transfer, or such other form of payment as shall be mutually
agreed upon by such Investor and the Company. At the Closing, the Company shall
also deliver to the Investor a fully executed copy of the Subscription Agreement
and any related closing documents.
SECTION 1.05. EXPENSES.
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Irrespective of whether the Closing is effected, the Company shall pay
all costs and expenses that it incurs with respect to the negotiation,
execution, delivery, and performance of this Agreement and the transactions
contemplated hereby, including without limitation, the cost of any required
filings under the Act or any applicable state "blue sky" laws, rules and
regulations.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. INVESTOR REPRESENTATIONS AND WARRANTIES.
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The Investor makes each and every one of the representations and
warranties set forth in the document entitled Investor Representations and
Warranties Agreement attached hereto and incorporated herein by this reference
as if such document were set forth herein in its entirety.
SECTION 2.02. COMPANY REPRESENTATIONS AND WARRANTIES.
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The Company hereby represents, warrants and covenants to the Investor
as follows:
(a) The Company has been duly organized and
is validly existing as a corporation in good standing under
the laws of its state of incorporation. The Company has one
wholly-owned operating subsidiary, Raptor Networks Technology,
Inc., a California corporation. The Company is duly qualified
or licensed and in good standing as a foreign corporation in
each jurisdiction in which its ownership or leasing of any
properties or the character of its operations requires such
qualification or licensing and where failure to so qualify
would have a material effect on the Company. The Company has
all requisite corporate power and authority, and all material
and necessary authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental
regulatory officials and bodies to own or lease its properties
and conduct its businesses as described in the Disclosure
Documents (as hereinafter defined) and the Company is doing
business in compliance with all such authorizations,
approvals, orders, licenses, certificates and permits and all
federal, state and local laws, rules and regulations
concerning the business in which it is engaged except where
the failure so to do business in compliance would not have a
material adverse effect on the business of the Company. The
disclosures herein and in the Disclosure Documents concerning
the effects of federal, state and local regulation on the
Company's business as currently conducted and as contemplated
are correct in all material respects and do not omit to state
a material fact. The Company has all corporate power and
authority to enter into this Agreement and the Notes and to
carry out the provisions and conditions hereof and thereof,
and all consents, authorizations, approvals and orders
required in connection herewith and therewith have been
obtained or will have been obtained prior to the Closing Date.
No consent, authorization or order of, and no filing with, any
court, government agency or other body is required for the
issuance of the Notes or any securities issuable in respect of
the Notes pursuant to this Agreement except with respect to
applicable federal and state securities laws.
(b) The authorized capital and the issued
and outstanding securities of the Company are as set forth in
the Company's latest annual report on Form 10-KSB for the
fiscal year ended December 31, 2003 and all of the reports and
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documents filed pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") since the end of the Company's fiscal year ended
December 31, 2003 (collectively, the "Disclosure Documents"),
all of which are incorporated herein by this reference as if
such documents were set forth herein in their entirety. Except
as described in the Disclosure Documents and except for the
transactions contemplated by this Agreement and the Notes and
except for the Company's proposed private offering from which
the Notes shall be repaid, there are (A) no outstanding
warrants, options or rights to subscribe for or purchase any
capital stock or other securities from the Company, (B) no
voting trusts or voting agreements among, or irrevocable
proxies executed by, stockholders of the Company, (C) no
existing rights of stockholders to require the Company to
register any securities of the Company or to participate with
the Company in any registration by the Company of its
securities, and (D) no agreements among stockholders providing
for the purchase or sale of the Company's capital stock.
(c) This Agreement and the attachments
hereto have been duly and validly authorized, executed and
delivered by the Company and are valid and binding agreements
of the Company, enforceable in accordance with their
respective terms, except to the extent that the enforceability
hereof or thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or similar laws from
time to time in effect and affecting the rights of creditors
generally, (B) limitations upon the power of a court to grant
specific performance or any other equitable remedy, or (C) a
finding by a court of competent jurisdiction that the
indemnification provisions herein are in violation of public
policy. The shares of common stock issuable upon conversion of
the Notes (the "Note Shares") have been duly authorized and,
when issued in accordance with the conversion of the Notes,
will be validly issued, fully paid and non-assessable; the
holders thereof are not and will not be subject to personal
liability solely by reason of being such holders; other than
as described herein, the Notes and the Note Shares are not and
will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required
to be taken for the authorization, issuance and sale of the
Notes and the Note Shares has been duly and validly taken by
the Company.
(d) With the exception of two pieces of
testing equipment which are being leased towards purchase and
upon which the lessor maintains a security interest, the
Company has good and marketable title to, or valid and
enforceable leasehold estates in, all items of real and
personal property owned or leased by it, free and clear of all
liens, claims, encumbrances, security interests and defects of
any material nature whatsoever.
(e) There is no litigation or governmental
proceeding pending or threatened against, or involving the
properties or business of, the Company which might materially
adversely affect the value or the operation of the properties
or the business of the Company, except as set forth in the
Disclosure Documents.
(f) The financial statements of the Company
contained in the Disclosure Documents fairly present the
financial position and the results of operations of the
Company at the dates and for the periods to which they apply;
and such financial statements have been prepared in conformity
with generally accepted accounting principles, consistently
applied throughout the periods involved.
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(g) There has been no material adverse
change in the condition or prospects for commercialization of
the Company, financial or otherwise, as of the latest dates as
of which such condition or prospects, respectively, are set
forth in this Agreement and the Disclosure Documents; and the
outstanding debt, the property and the business of the Company
each conforms in all material respects to the descriptions
thereof contained herein and therein.
(h) The Notes and the Note Shares conform in
all respects to all statements in relation thereto contained
herein or in the Notes or the Disclosure Documents.
(i) The Company is not in violation of its
Articles of Incorporation or Bylaws. Neither the execution and
delivery of this Agreement or the Notes, nor the issuance of
the Notes or the Note Shares upon conversion of the Notes, nor
the consummation of any of the transactions contemplated
herein or in the Notes, nor the compliance by the Company with
the terms and provisions contained herein, or in the Notes,
has conflicted with or will conflict with, or has resulted in
or will result in a breach of, any of the terms and provisions
of, or has constituted or will constitute a default under, or
has resulted in or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to the terms of any indenture,
mortgage, deed of trust, note, loan or credit agreement or any
other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which
the Company is subject; nor will such action result in any
violation of the provisions of the Articles of Incorporation
or the Bylaws of the Company, or any statute or any order,
rule or regulation applicable to the Company of any court or
of any federal, state or other regulatory authority or other
government body having jurisdiction over the Company; except
for any conflict, breach, default, lien, charge or encumbrance
which does not have a material and adverse effect on the
Company, any of its business, property or assets, or any
transactions contemplated hereby or by the Notes.
(j) All taxes which are due and payable from
the Company have been paid in full, and the Company does not
have any material tax deficiency or claim outstanding,
assessed or proposed against it.
(k) Subsequent to the dates as of which
information is given in this Agreement or the Disclosure
Documents, and except as may otherwise be indicated or
contemplated herein or therein, the Company has not (A) issued
any securities or incurred any liability or obligation, direct
or contingent, for borrowed money, in excess of $20,000 in the
aggregate, or (B) entered into any transaction other than in
the ordinary course of business, or (C) declared or paid any
dividend or made any other distribution on or in respect of
its capital stock. The Investor acknowledges that the Company
is planning on conducting financing activities in the near
future which will result in the issuance of securities of the
Company to third parties.
(l) The Company owns or possesses, free and
clear of all liens or encumbrances and rights thereto or
therein by third parties, the requisite licenses or other
rights to use all trademarks, service marks, copyrights,
service names, trade names, patents, patents applications and
licenses necessary to conduct and material to its business
(including, without limitation any such licenses or rights
described herein as being owned or possessed by the Company),
and there is no material claim or action by any person
pertaining to, or proceeding, pending or threatened, which
challenges the exclusive rights of the Company with respect to
any trademarks, service marks, copyrights, service names,
trade names, patents, patent applications and licenses used in
the conduct of the Company's businesses (including, without
limitation, any such licenses or rights described herein or in
the Disclosure Documents as being owned or possessed by the
Company); the Company's current products, services and
processes do not and will not infringe on any patents
currently held by third parties.
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(m) The Company is not under any obligation
to pay any material royalties or fees of any kind whatsoever
to any third party with respect to technology it has
developed, used, employs or intends to use or employ.
(n) Neither this Agreement, the Notes nor
the Disclosure Documents contain any untrue statement of a
material fact or omits to state any material fact required to
be stated herein or therein or necessary to make the
statements herein or therein, in light of the circumstances
under which they were made, not misleading. All statements of
material facts herein or therein (including, without
limitation, any attachment, exhibit or schedule hereto or
thereto) are true and correct as of the date hereof and will
be true and correct on the Closing Date and each additional
Closing Date, if any.
(o) The Company shall use the proceeds from
the sale of the Notes for working capital.
(p) Neither the Company, nor any of its
respective officers, directors, employees or agents, nor any
other person acting on behalf of the Company has, directly or
indirectly, given or agreed to give any money, gift or similar
benefit (other than legal price concessions to customers in
the ordinary course of business) to any customer, supplier,
employee or agent of a customer or supplier, or official or
employee of a customer or supplier, or official or employee of
any governmental agency or instrumentality of any government
(domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person who is or may be
in a position to help or hinder the business of the Company
(or assist it in connection with any actual or proposed
transaction) which (A) might subject the Company to any damage
or penalty in any civil, criminal or governmental litigation
or proceeding, (B) if not given in the past, might have had a
materially adverse effect on the assets, business operations
of the Company as reflected in any of the financial statements
delivered to the Investor, or (C) if not continued in the
future, might adversely affect the assets, business,
operations or prospects of the Company.
(q) Since January 1, 2004, the minute books
and corporate records of the Company contain a complete
summary of all meetings and actions of the managers, members,
officers, directors and stockholders of the Company since the
time of its incorporation (and of any predecessor to the
Company) and reflect all transactions referred to in such
minutes accurately in all respects.
ARTICLE III
CONDITIONS TO THE INVESTOR'S OBLIGATIONS
The obligation of the Investor to purchase the Notes at the Closing is
subject to the following conditions:
(a) The representations and warranties of
the Company contained herein shall be true and correct in all
material respects on and as of the Closing Date.
(b) There shall be no preliminary or
permanent injunction or other order, decree or ruling issued
by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, nor any
statute, rule, regulation or order promulgated or enacted by
any governmental authority, prohibiting or otherwise
restraining the sale or purchase of the Notes.
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(c) At the Closing, the Investor shall be
reasonably satisfied that:
(i) The Company has been duly
organized and is validly existing as a corporation in good
standing under the laws of the state of its organization and
is duly qualified to do business and is in good standing in
all jurisdictions in which the failure to so qualify would
have a material adverse effect on the business of the Company.
To the best knowledge of the Company, no consent,
authorization or order of, and no filing with, any court,
government agency or other body is required for the issuance
of the Notes by the Company, or for the issuance by the
Company of the Note Shares upon conversion of the Notes or
otherwise in accordance with the terms of the Agreement or the
Notes except for compliance with any applicable federal and/or
state securities laws. This Agreement and the Notes have each
been duly and validly authorized, executed and delivered by
the Company.
(ii) The Notes and the Note Shares
have been duly authorized and are, or in the case of the Note
Shares, will be, upon the conversion therefor, validly issued,
fully paid and non-assessable; all corporate action required
to be taken for the authorization, issue and sale of such
securities has been duly and validly taken; to the best
knowledge of the Company, the Notes and the Note Shares are
not and will not be subject to the preemptive rights of any
stockholder of the Company.
(iii) The authorized capital stock
of the Company and the outstanding Securities of the Company
are as set forth herein and in the Disclosure Documents. There
are no other securities issued and outstanding, or if such
securities do exist, that such securities have been duly
authorized and are non-assessable; all issued and outstanding
securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable. To the
best knowledge of the Company, the holders thereof have no
rights of rescission with respect thereto. To the best
knowledge of the Company, except for transactions contemplated
by the Subscription Agreement and the Notes, and except as
otherwise described in the Disclosure Documents and other
documents delivered in connection therewith and except for the
Company's proposed private offering from which the Notes shall
be repaid, there are (A) no voting trusts or agreements among,
or irrevocable proxies executed by, stockholders of the
Company, (B) no existing rights of stockholders to require the
Company to register any securities of the Company or to
participate with the Company in any registration by the
Company of its securities, and (C) no outstanding warrants,
options or rights to subscribe for or purchase any capital
stock or other securities from the Company.
(iv) To the best knowledge of the
Company other than as disclosed in the Disclosure Documents,
there is no litigation or government proceeding pending
against, or involving the properties or business of the
Company which might materially and adversely affect the value
or the operation of the properties or the business of the
Company.
(v) Neither the execution and
delivery of this Agreement nor the attachments hereto, nor the
issue and sale of the Notes or the Note Shares, nor the
consummation of any of the transactions contemplated therein,
nor the compliance by the Company with the terms and
provisions thereof, has conflicted with or will conflict with,
or has resulted in or will result in any violation of the
provisions of the Articles of incorporation or the Bylaws of
the Company, or, to the best knowledge of the Company,
constituted or will constitute a default under, or has
resulted in or will result in the creation or imposition of
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any lien, charge or encumbrance upon any material property or
assets of the Company pursuant to the terms of any indenture,
mortgage, deed of trust, note, loan or credit agreement known
to the Company, or any other agreement or instrument
evidencing an obligation for borrowed money known to the
Company or any other material agreement or instrument known to
the Company, to which the Company is a party or by which the
Company may be bound, the violation of which would have a
material adverse effect on the Company, other than as
described in the Disclosure Documents.
(d) On or prior to the Closing Date, the
Investor shall have been furnished such documents,
certificates and opinions as they may reasonably require for
the purpose of enabling them to review or pass upon the
matters set forth herein, or in order to evidence the
accuracy, completeness or satisfaction of any of the
representations, warranties or conditions herein contained.
(e) Prior to the Closing, (i) there shall
have been no material adverse change nor development involving
a prospective change in the condition, prospects or the
business activities, financial or otherwise, of the Company as
a whole, from the latest dates as of which such condition is
set forth in this Subscription Agreement and the Disclosure
Documents; (ii) there shall have been no transaction, not in
the ordinary course of business, entered into by the Company
from the latest date as of which the financial condition of
the Company is set forth in this Subscription Agreement which
is material to the Company and which has not been disclosed to
the Investor in writing; (iii) the Company shall not be in
default in any material respect under any provision of any
instrument relating to any outstanding indebtedness; (iv) no
material amount of the assets of the Company shall have been
pledged or mortgaged; and (v) no action, suit or proceeding,
at law or in equity, shall have been pending or threatened
against the Company or affecting any of its respective
properties or businesses before or by any court of federal or
state commission, board or other administrative agency wherein
an unfavorable decision, ruling or finding could materially
adversely affect the business, operations, prospects or
financial condition or income of the Company.
ARTICLE IV
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to sell the Notes at the Closing is
subject to the following conditions:
(a) The representations and warranties of
the Investor contained in the document entitled Investor
Representations and Warranties Agreement attached hereto shall
be true and correct in material respects on and as of the
Closing Date.
(b) There shall be no preliminary or
permanent injunction or other order, decree or ruling issued
by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, nor any
statute, rule, regulation or order promulgated or enacted by
any governmental authority, prohibiting or otherwise
restraining the sale or purchase of the Notes.
ARTICLE V
INDEMNIFICATION
(a) The Company hereby agrees to indemnify
and hold harmless the Investor, their stockholders, directors,
partners, employees, agents, attorneys and each person, if
any, who controls such Investor within the meaning of the Act,
against any and all losses, claims, damages or liabilities to
which such Investor or any such stockholder, director,
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partner, employee, agent, attorney or controlling person may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained
herein, in the Notes, in the Disclosure Documents, or in any
statement made to or in any filing with the SEC or to or with
any state securities commission, bureau or office (including
any amendments thereto), or arise out of or based upon the
omission or alleged omission to state herein or therein a
material fact required to be stated herein or therein or
necessary to make the statements herein or therein not
misleading (unless such statements are made or omitted in
reliance upon and in conformity with written information
furnished to the Company with respect to such Investor by such
Investor expressly for use herein or therein or any amendment
hereof or supplement hereto), or any violation by the Company
of the Act or state "blue sky" laws, or any breach by the
Company of its obligations, representations or warranties
hereunder or under the Notes.
(b) Each Investor hereby agrees to indemnify
and hold harmless the Company and its respective stockholders,
directors, employees, agents and each person, if any, who
controls any of the foregoing within the meaning of the Act,
against any and all losses, claims, damages or liabilities, to
which the Company or any of the Company's stockholders,
directors, employees, agents or controlling persons may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any authorized written
statement with respect to the offering made by the Investor,
its stockholders, directors, partners, agents or employees, or
any breach by such Investor of its obligations,
representations or warranties hereunder.
(c) Promptly after receipt by an indemnified
party under either subparagraph (a) or (b), as the case may
be, of the notice of commencement of any action covered by
subparagraph (a) or (b), such indemnified party shall within
five business days notify the indemnifying party of the
commencement thereof; the omission by one indemnified party to
so notify such indemnifying party shall not relieve the
indemnifying party of its obligations hereunder except to the
extent such indemnifying part has been materially prejudiced
by such omission, shall not relieve the indemnifying party of
its obligation to indemnify any other indemnified party that
has given such notice and shall not relieve the indemnifying
party of any liability outside of this indemnification. In the
event that any action is brought against the indemnified
party, and it shall notify the indemnifying party in a timely
manner, the indemnifying party will be entitled to participate
in such action and, to the extent it may desire, to assume and
control the defense thereof with counsel chosen by it. After
notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party under such subparagraph for any legal or other expense
subsequently incurred by such indemnified party in connection
with the defense thereof, but the indemnified party may, at
its own expenses, participate in such defense by counsel
chosen by it without, however, impairing the indemnifying
party's control of the defense. Notwithstanding anything to
the contrary contained herein, the indemnified party shall
have the right to choose its own counsel and control the
defense of any action, all at the reasonable expense of the
indemnifying party, if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying
party in connection with the defense of such action at the
expense of the indemnifying party, (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to
such indemnified party to have charge of the defense of such
action within a reasonable time after notice of commencement
of the action, or (iii) such indemnified party shall have
reasonably conclude that there may be defenses available to
such indemnified party that differ from the defenses available
to the indemnifying party (in which case the indemnifying
party shall not have the right to direct the defense of such
action on behalf of such indemnified party), in any of which
events such reasonable fees and expenses of one additional
counsel (for all indemnified parties) shall be borne by the
indemnifying party (in the case of the Investor, one
additional counsel for Investor. No settlement of any action
or proceeding against an indemnified party shall be made
without the consent of the indemnified party, which consent
shall not be unreasonably withheld.
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(d) In order to provide for just and
equitable contribution under the Act in any case in which (i)
any indemnified party makes a claim for indemnification
pursuant to this paragraph but it is judicially determined (by
entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of the time to appeal or the
denial of the last right of appeal) that such indemnification
may not be enforced in such case, notwithstanding the fact the
this paragraph provides for indemnification in such case, or
(ii) contribution under the Act is required on the part of any
such person in circumstances for which indemnification is
provided under this paragraph, then, in each such case, the
relevant Investor shall contribute to the aggregate losses,
claims, damages or liabilities to which it may be subject
(after any contributions from others) in the same proportion
as the amount of the Notes purchased by such Investor pursuant
to the Subscription Agreement bears to the aggregate offering
of the Notes, and the Company shall be responsible for the
remaining portion thereof; provided, that in any such case, no
person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE VI
NOTICES
All notices provided for in this Agreement shall be in writing signed by the
party giving such notice, and delivered personally or sent by overnight courier
or messenger or sent by registered or certified mail (air mail if overseas),
return receipt requested, or by telex, facsimile transmission, telegram or
similar means of communication. Notices shall be deemed to have been received on
the date of personal delivery, telex, facsimile transmission, telegram or
similar means of communication, or if sent by overnight courier or messenger,
shall be deemed to have been received on the next delivery day after deposit
with the courier or messenger, or if sent by certified or registered mail,
return receipt requested, shall be deemed to have been received on the third
business day after the date of mailing. Notices shall be sent to the addresses
set forth below each Party's signature on this Agreement.
ARTICLE VII
MISCELLANEOUS
(a) This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
state of California applicable to contracts made and to be
performed entirely therein, without giving effect to the rules
of conflicts of law. The agreed upon venue for any claim
hereunder shall be the state and federal courts located in
Orange County, California.
(b) This Agreement shall be binding upon and
inure to the benefit of the Parties hereto and their
respective successors and assigns.
(c) This Agreement represents the entire
agreement between the Parties relating to the subject matter
hereof, superseding any and all prior to contemporaneous oral
and prior written agreements and understandings. This
Agreement may not be modified or amended nor may any right be
waived except by a writing signed by the party against whom
the modification or waiver is sought to be enforced.
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(d) The warranties, representations and
covenants of the Company and the Investor contained in or made
pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing.
(e) The captions and headings contained
herein are solely for convenience of reference and do not
constitute a part of this Agreement.
(f) There are no unlicensed finder fees or
commissions owed in connection with the sale of the Notes.
However, the Company may pay compensation not to exceed 12%
cash commission and 15% five year warrant coverage exercisable
at 100% of the conversion price of the Notes to broker/dealers
who are registered with the SEC and members of the National
Association of Securities Dealers, Inc.
(g) Each of the attachments hereto is hereby
incorporated herein as if each of such attachments were fully
set forth herein in its entirety. Each of such attachments is
hereby expressly made a part of this Agreement.
(h) The terms of the offering and of the
Notes may only be amended or modified by the agreement of
Investor subscribing for and/or holders of a majority of the
Notes.
(i) 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.
(j) The Parties hereto agree and acknowledge
that Xxxxxx & Xxx, APC (the "Firm") drafted this Agreement and
does not represent the Investor(s). All Parties to this
Agreement have been given the opportunity to consult with
counsel of their choice regarding their rights under this
Agreement.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto
have executed this Agreement and as of the day of , 2005.
COMPANY:
Raptor Networks Technology, Inc.,
a Colorado corporation
________________________________________
By:_____________________________________
Its:____________________________________
Address: 0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
INVESTOR:
________________________________________
By:_____________________________________
JOINTLY WITH:
________________________________________
By:_____________________________________
INVESTOR ADDRESS:
11
