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EXHIBIT 4.2
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of April 9, 1997,
between Cityscape Financial Corp., a Delaware corporation ("Cityscape"), and
each person executing a counterpart of the signature page of this Agreement
(each individually an "Investor" and collectively the "Investors").
W I T N E S S E T H:
WHEREAS, Cityscape desires to issue and sell to the Investors, and the
Investors wish to purchase from Cityscape, an aggregate of 5,000 shares of
Cityscape's 6% Convertible Preferred Stock, Series A, par value $0.01 per share
(the "Series A Preferred Stock"), having the rights, designations and
preferences set forth in the Certificate of Designations of Cityscape (the
"Certificate of Designations") in form of Exhibit A attached hereto, and
warrants (the "Warrants") to purchase 500,000 shares of Common Stock (as defined
below) in the form attached as Exhibit B (the shares of Common Stock issuable
upon the exercise of Warrants are hereinafter called the "Warrant Shares"), on
the terms and conditions set forth herein; and
WHEREAS, the Series A Preferred Stock will be convertible into shares (the
"Common Shares") of common stock, par value $0.01 per share, of Cityscape (the
"Common Stock"), pursuant to the terms of the Certificate of Designations, and
the holders of Series A Preferred Stock will have registration rights with
respect to such Common Shares and Warrant Shares pursuant to the terms of the
Registration Rights Agreement to be entered into between Cityscape and the
Investors (the "Registration Rights Agreement");
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF SERIES A PREFERRED STOCK
Section 1.1 Purchase and Sale of Series A Preferred Stock. Subject to the
terms and conditions set forth herein (including, without limitation, the
provisions of Article IV hereof), Cityscape hereby agrees to issue and sell to
each of the Investors severally, and each of the Investors severally hereby
agrees to purchase from Cityscape on the date hereof (the "Closing Date") such
number of shares of Series A Preferred Stock as are indicated next to such
Investor's name on the counterpart of the signature page executed by such
Investor, and (ii) such number of related Warrants as are indicated next to such
Investor's name on the counterpart of the signature page executed by such
Investor against payment of the aggregate Purchase Price therefor, as provided
in Section 1.2 hereof. Cityscape shall issue and sell to the Investors an
aggregate of 5,000 shares of Preferred Stock.
Section 1.2 Purchase Price. The purchase price for the Series A Preferred
Stock (and the related Warrants) (the "Purchase Price") shall be $10,000 per
share of Series A Preferred Stock.
Section 1.3 The Closing. (a) The closing of the purchase and sale of the
shares of Series A Preferred Stock and the Warrants (the "Closing"), shall take
place at the offices of Xxxxxx, Xxxx & Xxxxxxxx, at 10:00 a.m., local time on
the date hereof, provided that all of the conditions set forth in Article IV
hereof and applicable to the Closing shall have been fulfilled or waived in
accordance herewith.
(b) On the Closing Date, Cityscape shall execute, issue and deliver to each
Investor (i) certificates representing the shares of Series A Preferred Stock
purchased hereunder by such Investor registered in the name of such Investor or
its nominee and (ii) certificates representing the related Warrants purchased
hereunder by such Investor registered in the name of Investor or its nominee, in
each case in such denominations as reasonably requested by such Investor, and
such Investor shall deliver to Cityscape the aggregate Purchase Price for the
number of shares of Series A Preferred Stock (and related Warrants) purchased by
such Investor hereunder by wire transfer in immediately available funds to an
account
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designated in writing by Cityscape. In addition, Cityscape shall deliver
evidence of filing with, and acceptance by, the Secretary of State of the State
of Delaware of the Certificate of Designations, and each party shall deliver all
documents, instruments and writings required to be delivered by such party
pursuant to this Agreement at or prior to the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Cityscape. Cityscape hereby
makes the following representations and warranties to each of the Investors as
of the Closing Date:
(a) Organization and Qualifications; Material Adverse Effect. Each of
Cityscape and its subsidiaries is a corporation duly incorporated and
existing in good standing under the laws of its jurisdiction of
incorporation and has the requisite corporate power to own and operate its
properties and to carry on its business as now being conducted. Each of
Cityscape and its subsidiaries is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary other than those in which the failure so to qualify
would not have a Material Adverse Effect. "Material Adverse Effect" means
any adverse effect on the business, operations, properties or financial
condition of Cityscape and which is material to Cityscape and its
subsidiaries taken as a whole, or any material adverse effect on
Cityscape's ability to consummate the transactions contemplated hereby, and
to execute, deliver and perform its obligations under, each of this
Agreement, the Registration Rights Agreement, the Certificate of
Designations and the Warrants.
(b) Authorization; Enforcement. (i) Cityscape has the requisite
corporate power and authority to enter into and perform its obligations
under each of this Agreement, the Registration Rights Agreement, the
Certificate of Designations and the Warrants and to issue the Series A
Preferred Stock and the Warrants in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement and the
Registration Rights Agreement, the issuance and delivery of the Series A
Preferred Stock and the Warrant and the filing of the Certificate of
Designations by Cityscape and the consummation and performance by it of the
transactions contemplated hereby and thereby, including the resolutions
contained in the Certificate of Designations, have been duly authorized by
all necessary corporate action, and no further consent or authorization of
Cityscape or its Board of Directors or stockholders is required (other than
any shareholder approval as may be required by the rules applicable to
companies whose common stock is traded on the Nasdaq National Market
("Nasdaq")), (iii) this Agreement, the Registration Rights Agreement, the
Warrants, the Certificate of Designations and the Series A Preferred Stock
have been duly executed and delivered by Cityscape, and (iv) this
Agreement, the Registration Rights Agreement, the Warrants, the Certificate
of Designations and the Series A Preferred Stock constitute valid and
binding obligations of Cityscape enforceable against Cityscape in
accordance with their terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of creditors' rights and remedies or by other equitable
principles of general application.
(c) Capitalization. The authorized capital stock of Cityscape
consists of 50,000,000 shares of Common Stock and 50,000 shares of
preferred stock; there were 29,744,322 shares of Common Stock and no shares
of preferred stock issued and outstanding as of March 25, 1997. Except as
set forth in the SEC Documents (defined below), Cityscape has no other
authorized, issued or outstanding equity securities or securities
containing any equity features, or any other securities convertible into,
exchangeable for or entitling any person to otherwise acquire any other
securities of Cityscape containing any equity features. All of the
outstanding shares of Cityscape Common Stock have been validly issued and
are fully paid and nonassessable. The Series A Preferred Stock, the Common
Shares, the Warrants and the Warrant Shares have been duly and validly
authorized. When issued against payment therefor as provided in this
Agreement, the Series A Preferred Stock will be validly issued, fully paid
and nonassessable and will entitle the holders thereof to the rights
established in the Certificate of
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Designations and the Warrants will be validly issued. A sufficient number
of shares of Common Stock has been duly reserved and will remain available
for issuance upon conversion of the Series A Preferred Stock and upon the
exercise of the Warrants. Except as set forth in this Agreement and in the
SEC Documents, there are no outstanding options, warrants, agreements,
conversion rights, subscription rights, preemptive rights, rights of first
refusal or other rights or agreements of any nature outstanding to
subscribe for or to purchase any shares of capital stock of Cityscape or
any other securities of the Cityscape of any kind. Except as otherwise
required by law or as set forth in the Certificate of Designations,
Cityscape's Certificate of Incorporation (the "Charter") or Cityscape's
By-Laws, as in effect on the date hereof (the "By-Laws"), there are no
restrictions upon the voting or transfer of any shares of Cityscape's
capital stock pursuant to Cityscape's organizational and other governing
documents or any agreement or other instruments to which Cityscape is a
party or by which Cityscape or its properties or assets are bound. The
issuance of the Series A Preferred Stock and the Warrants is not subject to
any preemptive rights, rights of first refusal or other similar limitation.
There are no agreements or other obligations (contingent or otherwise) that
may require Cityscape to repurchase or otherwise acquire any shares of its
capital stock (other than its obligations with respect to the Series A
Preferred Stock).
(d) Corporate Documents. Cityscape has delivered to the Investors
true and correct copies of its Charter and the Certificate of Designations,
each as in effect on the date hereof, and Cityscape has furnished or made
available to the Investors true and correct copies of its By-Laws. The
Certificate of Designations has been duly filed with, and accepted for
filing by, the Secretary of State of the State of Delaware. The terms of
the Certificate of Designations are hereby expressly incorporated by
reference herein, and the form of certificate of Series A Preferred Stock
is attached as Exhibit C.
(e) Issuance of Common Shares. Each of the Common Shares issuable
upon conversion of the Series A Preferred Stock pursuant to the Certificate
of Designations or the Warrant Shares issuable upon the exercise of the
Warrants are, or prior to issuance will be, duly authorized and, prior to
issuance in accordance with the terms of the Series A Preferred Stock or
the Warrants, will be reserved for issuance and, upon conversion in
accordance with the Certificate of Designations and/or exercise in
accordance with the terms of the Warrants such Common Shares and Warrant
Shares, respectively, will be validly issued, fully paid and
non-assessable, free and clear of any and all pre-emptive rights, rights of
first refusal, liens, claims and encumbrances (other than those created or
suffered by the holder thereof), and eligible for inclusion on Nasdaq, and
the holders of such Common Shares and Warrant Shares shall be entitled to
all rights and preferences accorded to a holder of Common Stock.
(f) No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement, the Certificate of
Designation and the Warrants by Cityscape and the consummation by Cityscape
of the transactions contemplated hereby and thereby, including, without
limitation, the issuance of the Series A Preferred Stock, the Common Shares
and the Warrant Shares, and the filing of the Certificate of Designations,
do not and will not (i) result in a violation of Cityscape's Charter or
By-Laws, (ii) conflict with, result in a breach of, or constitute a default
(or an event that with the giving of notice or the passage of time, or
both, would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture, or instrument to which Cityscape or any of its subsidiaries is a
party, that could reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect, or (iii) result in a violation of any
federal, state, local or foreign law, rule, regulation, order, judgment or
decree (including federal and state securities laws and regulations)
applicable to Cityscape or any of its subsidiaries or by which any property
or asset of Cityscape or any of its subsidiaries is bound or affected
(except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or
in the aggregate, have a Material Adverse Effect) nor is Cityscape
otherwise in violation of, conflict with or in default under any of the
foregoing; provided that, for purposes of such representation as to
federal, state, local or foreign law, rule or regulation, no representation
is made herein with respect to any of the same applicable solely to the
Investors and not to Cityscape. The business of Cityscape and its
subsidiaries is not being conducted in violation of any law, ordinance or
regulations of any governmental entity, except for
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violations which either individually or in the aggregate do not and will
not have a Material Adverse Effect. Cityscape is not required under
federal, state, local or foreign law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration
with, any court or governmental agency in order for it to execute, deliver
or perform any of its obligations under this Agreement, the Registration
Rights Agreement, the Certificate of Designations and the Warrants or issue
and sell the Series A Preferred Stock in accordance with the terms hereof
and issue the Common Shares upon conversion of the Series A Preferred Stock
or to issue and sell the Warrants in accordance with their terms or issue
the Warrants Shares upon exercise of the Warrants (other than any
shareholder approval as may be required by the rules applicable to
companies whose common stock is quoted on Nasdaq, and other than the
registration statement which is required to file pursuant to the provisions
of the Registration Rights Agreement); provided that, for purposes of the
representation made in this sentence, Cityscape is assuming and relying
upon the accuracy of the relevant representations and agreements of the
Investors herein.
(g) SEC Documents; Financial Statements. The Common Stock of
Cityscape is registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and, since December
31, 1995, Cityscape has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the Securities and Exchange
Commission ("SEC") pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d) with the
SEC (all of the foregoing including filings incorporated by reference
therein, the "SEC Documents"). Except as set forth in the SEC Documents, as
of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the SEC promulgated thereunder and other federal, state and
local laws, rules and regulations applicable to such SEC Documents, and
none of the SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Cityscape's
annual report on Form 10-K for the fiscal year ended December 31, 1996 (the
"1996 10-K") as filed with the SEC, contains all material information
concerning Cityscape, and no event or circumstance has occurred or exists
since the date of the 1996 10-K which would require Cityscape to disclose
such event or circumstance in order to make the statements in the SEC
Documents not misleading on the Closing Date but which has not been so
disclosed. The financial statements of Cityscape included in the SEC
Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements), have been prepared from, and are
consistent with, the books and records of Cityscape and fairly present in
all material respects the consolidated financial position, as at the dates
thereof, and the consolidated results of operations and cash flows of
Cityscape and its subsidiaries for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
Neither Cityscape, nor any of its subsidiaries had at December 31,
1996 any material contingent liabilities, liabilities for taxes or
long-term leases, unusual forward or long-term commitments or unrealized or
unanticipated losses from any unfavorable commitments which are not
reflected or reserved against in the foregoing statements or in the notes
thereto. No events that, individually or in the aggregate, have had or
could reasonably be expected to have a Material Adverse Effect have
occurred since December 31, 1996 except as reflected therein.
(h) Solvency.
(i) Cityscape's fair saleable value of its assets exceeds the
amount that will be required to be paid on or in respect of Cityscape's
existing debts and other liabilities (including contingent liabilities)
as they mature.
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(ii) Cityscape's assets do not constitute unreasonably small
capital for to carry out its business as now conducted and as proposed
to be conducted including Cityscape's capital needs taking into account
the particular capital requirements of the business conducted by
Cityscape, and projected capital requirements and capital availability
thereof.
(iii) Cityscape does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt). The cash
flow together with the proceeds received from the liquidation of
Cityscape's assets after taking into account all anticipated uses of the
cash, will at all times be sufficient to pay all amounts on or in
respect of its debt when such amounts are required to be paid.
(iv) Cityscape does not intend, and does not believe, that final
judgments against Cityscape in actions for money damages will be
rendered at a time when, or in an amount such that, Cityscape will be
unable to satisfy any such judgments promptly in accordance with their
terms (taking into account the maximum reasonable amount of such
judgments in any such actions and the earliest reasonable time at which
such judgments might be rendered). Cityscape's cash flow, after taking
into account all other anticipated uses of the cash (including the
payments on or in respect of debt referred to in paragraph (iii) above),
will at all times be sufficient to pay all such judgments promptly in
accordance with their terms.
(v) Neither Cityscape nor any of its subsidiaries is subject to any
bankruptcy, insolvency or similar proceeding.
(i) No Default. No event has occurred and is continuing that with the
giving of notice or passage of time, or both, constitutes an event of
default under any agreement to which Cityscape is a party or its assets are
bound, which default could reasonably be expected to have a Material
Adverse Effect.
(j) Principal Market. The principal market on which the Common Stock
is currently traded is Nasdaq.
(k) No Material Adverse Change. Since December 31, 1996, no Material
Adverse Effect has occurred or exists, except as otherwise disclosed or
reflected in other SEC Documents prepared through or as of a date
subsequent to December 31, 1996.
(l) No Undisclosed Liabilities. Cityscape and its subsidiaries have
no liabilities or obligations not disclosed in the SEC Documents, other
than those liabilities incurred in the ordinary course of Cityscape's or
its subsidiaries' respective businesses since December 31, 1996, which
liabilities, individually or in the aggregate, do not or would not have a
Material Adverse Effect on Cityscape.
(m) No General Solicitation. Neither Cityscape, nor any of its
affiliates, or, to its knowledge, 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 of 1933, as
amended (the "Act")) in connection with the offer or sale of the Series A
Preferred Stock or Common Shares.
(n) No Integrated Offering. Neither Cityscape, nor any of its
affiliates, nor to its knowledge any person acting on its or their behalf
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security other than pursuant to this
Agreement, under circumstances that would require registration under the
Act of the Series A Preferred Stock to be issued under this Agreement.
(o) Form S-3. Cityscape is eligible to use Form S-3 under the Act for
a primary issuance of its securities and to file the Registration Statement
(as defined in the Registration Rights Agreement) on Form S-3.
(p) No Litigation. No litigation or claim (including those for unpaid
taxes), or environmental proceeding against Cityscape or any of its
subsidiaries is pending, threatened or, to Cityscape's best knowledge,
contemplated and no other event has occurred, which if determined adversely
would have a Material Adverse Effect on Cityscape or would materially
adversely affect the transactions contemplated
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hereby. There are no outstanding injunctions or restraining orders
prohibiting consummation of any of the transactions contemplated by this
Agreement and the Registration Rights Agreement.
(q) Brokers. Cityscape has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by any Investor relating to this Agreement or the transactions
contemplated hereby, except for amounts payable to CIBC Wood Gundy
Securities Corp., which amounts shall be paid by Cityscape pursuant to a
separate agreement.
(r) Effectiveness of SEC Filings. The SEC has not issued any stop
order or other order suspending the effectiveness of any registration
involving the securities of Cityscape or its subsidiaries.
(s) No Investment Company. Cityscape is not an "investment company",
or an "affiliated person" of an investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
(t) Environmental Matters. Except as otherwise disclosed in the SEC
Documents, Cityscape and each of its subsidiaries is in compliance in all
material respects with all applicable state and federal environmental laws
and no event or condition has occurred that may interfere with the
compliance by Cityscape or any of its subsidiaries with any environmental
law or that may give rise to any liability under any environmental law
that, individually or in the aggregate, would have a Material Adverse
Effect.
(u) Permits. Cityscape and each of its subsidiaries have such
certificates, permits (including, without limitation environmental
permits), licenses, franchises, consents, approvals, authorizations and
clearances that are material to the condition (financial or otherwise),
business or operations of Cityscape and any of its subsidiaries, taken as a
whole ("Permits"), and are in compliance in all material respects with all
applicable laws of all tribunals as are necessary to own, lease or operate
their respective properties and to conduct their businesses in the manner
as presently conducted and all such Permits are valid and in full force and
effect, except for any such Permits as would not, individually or in the
aggregate, have a Material Adverse Effect. Cityscape and each of its
subsidiaries is in compliance in all material respects with its respective
obligations under such Permits and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or termination of
such Permits, except for any such revocation or termination as would not,
individually or in the aggregate, have a Material Adverse Effect.
Section 2.2 Representations and Warranties of the Investors. Each of the
Investors, severally and not jointly, hereby makes the following representations
and warranties to Cityscape as of the Closing Date:
(a) Authorization; Enforcement. (i) Such Investor has the requisite
power and authority to enter into and perform this Agreement, the
Registration Rights Agreement and the Warrant delivered in connection
herewith, and to purchase the Series A Preferred Stock and the Warrants
being sold hereunder and to acquire the Common Shares and the Warrant
Shares, (ii) the execution and delivery of this Agreement and the
Registration Rights Agreement by such Investor and the consummation by it
of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate or partnership action, and (iii) this
Agreement and the Registration Rights Agreement constitute valid and
binding obligations of such Investor enforceable against such Investor in
accordance with their terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the
enforcement of creditors' rights and remedies or by other equitable
principles of general application.
(b) No Conflicts. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement executed in connection
herewith, and the consummation by such Investor of the transactions
contemplated hereby and thereby, do not and will not (i) result in a
violation of such Investor's organizational documents, or (ii) conflict
with any agreement, indenture or instrument to which such Investor is a
party, or (iii) result in a violation of any law, rule, or regulation, or
any order, judgment or decree of any court or governmental agency
applicable to such Investor. Such Investor is not required to obtain any
consent or authorization of any governmental agency in order for it to
perform its obligations under this Agreement and the Registration Rights
Agreement.
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(c) Investment Representation. Such Investor is purchasing the Series
A Preferred Stock and acquiring the Warrants for its own account and not
with a view to distribution in violation of any securities laws. Such
Investor has no present intention to sell the Series A Preferred Stock, the
Warrants, the Common Shares or the Warrant Shares and such Investor has no
present arrangement (whether or not legally binding) to sell the Series A
Preferred Stock, the Warrants, the Common Shares or the Warrant Shares to
or through any person or entity; provided, however, that by making the
representations herein, such Investor does not agree to hold the Series A
Preferred Stock, the Warrants, the Common Shares or the Warrant Shares for
any minimum or other specific term and reserves the right to dispose of the
Series A Preferred Stock, the Warrants, the Common Shares or the Warrant
Shares at any time in accordance with federal and state securities laws
applicable to such disposition.
(d) Accredited Investor. Such Investor is an "accredited investor" as
defined in Rule 501 under the Act. The Investor has such knowledge and
experience in financial and business matters in general and investments in
particular, so that such Investor is able to evaluate the merits and risks
of an investment in the Series A Preferred Stock and the Warrants and to
protect its own interests in connection with such investment. In addition
(but without limiting the effect of Cityscape's representations and
warranties contained herein), such Investor has received such information
as it considers necessary or appropriate for deciding whether to purchase
the Series A Preferred Stock and the Warrants.
(e) Rule 144. Such Investor understands that there is no public
trading market for the Series A Preferred Stock or the Warrant, that none
is expected to develop, and that Series A Preferred Stock and the Warrant
must be held until such Series A Preferred Stock and Warrant are converted
pursuant to the terms of the Certificate of Designations, or exercised in
accordance with its terms, respectively, or registered under the Act or an
exemption from registration is available. Such Investor has been advised or
is aware of the provisions of Rule 144 under the Act.
(f) Brokers. Such Investor has taken no action which would give rise
to any claim by any person for brokerage commissions, finder's fees or
similar payments by Cityscape relating to this Agreement or the
transactions contemplated hereby, except for amounts payable to CIBC Wood
Gundy Securities Corp., which amounts shall be paid by Cityscape pursuant
to a separate agreement.
(g) Manner of Sale. At no time was the Investor presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
ARTICLE III
COVENANTS
Section 3.1 Registration and Listing; Effective Registration. Until such
time as no shares of Series A Preferred Stock or Warrants are subject to resale
restrictions (as to time, volume, manner or otherwise) under Rule 144 under the
Act, Cityscape shall cause the Common Stock to continue to be registered under
Section 12(g) of the Exchange Act, will comply in all material respects with its
reporting and filing obligations under the Exchange Act, and will not take any
action or file any document (whether or not permitted by the Exchange Act or the
rules thereunder) to terminate or suspend such reporting and filing obligations.
Until such time as there are no shares of Series A Preferred Stock or Warrants
outstanding, Cityscape shall continue the listing or trading of the Common Stock
on Nasdaq or other national securities exchange and comply in all respects with
Cityscape's reporting, filing and other obligations under the bylaws or rules of
Nasdaq or such other national securities exchange on which the Common Stock is
then trading. Cityscape shall undertake its best efforts to obtain the
stockholder approval referenced in Section 2.1(b) as may be required for the
issuance of the Common Shares issued upon conversion of the Series A Preferred
Stock or Warrant Shares issuable upon exercise of the Warrant as promptly as
practicable. As used herein and in the Registration Rights Agreement, the
Certificate of Designations and the Warrants the term "Effective Registration"
shall mean that all registration obligations of Cityscape pursuant to the
Registration Rights Agreement have been satisfied, such registration is not
subject to any suspension or stop order, the prospectus for the resale of the
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Common Shares issuable upon conversion of the Series A Preferred Stock and the
Warrant Shares issuable upon exercise of the Warrants complies in all material
respects with the requirements of the Act and does not and will not contain an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and such Common
Shares are listed for trading on Nasdaq or such other national securities
exchange on which the Common Stock is then trading, and such trading has not
been suspended for any reason.
Section 3.2 Certificates on Conversion and Warrants on Exercise. (a) Upon
any conversion by an Investor (or then holder of Series A Preferred Stock) of
the Series A Preferred Stock pursuant to the Certificate of Designations,
Cityscape shall issue and deliver to such Investor (or holder) within three (3)
trading days of the Conversion Date (as defined in the Certificate of
Designations) a new certificate or certificates for the number of Series A
Preferred Stock which such Investor (or holder) has not yet elected to convert
but which are evidenced in part by the certificate(s) submitted to Cityscape in
connection with such conversion (with the number of an denomination of such new
certificate(s) designated by such Investor or holder).
(b) In the alternative to physical delivery of certificates for Common
Shares pursuant to Section 3(b) of the Certificate of Designations, if delivery
of the Common Shares pursuant to any conversion thereunder may be effectuated by
electronic book-entry through Depository Trust Company ("DTC"), then delivery of
Common Shares pursuant to such conversion shall, if requested by such Investor
(or holder of Common Shares), settle by book-entry transfer through DTC by the
third trading day following the Conversion Date. The parties agree to coordinate
with DTC to accomplish this objective.
(c) Upon any partial exercise by an Investor (or then holder of the
Warrants) of the Warrants, Cityscape shall issue and deliver to such Investor
(or holder) within three (3) trading days of the Exercise Date (as defined in
the Warrants) a new Warrant or Warrants, representing the number of adjusted
Warrant Shares, in accordance with the terms of Section 2 of the Warrants.
Section 3.3 Replacement Certificates and Warrants. (a) The certificate(s)
representing the Series A Preferred Stock held by any Investor (or then holder)
may be exchanged by such Investor (or such Holder) at any time and from time to
time for certificates with different denominations representing an equal
aggregate number of Series A Preferred Stock, as reasonably requested by such
Investor (or such holder) upon surrendering the same. No service charge will be
made for such registration or transfer or exchange.
(b) The Warrants are exchangeable at the option of the Investor (or then
holder of the Warrants) at the office of Cityscape for other Warrants of
different denominations entitling the holder thereof to purchase in the
aggregate the same number of Warrant Shares as are purchasable under such
Warrants. No service charge will be made for such transfer or exchange.
Section 3.4 Expenses. Cityscape shall pay, at the Closing (or at such
later date as it shall be invoiced by Xxxxxx & Xxxxxxx LLP) and promptly upon
receipt of any further invoices relating to the Closing, all reasonable due
diligence fees and expenses and reasonable attorneys' fees and expenses of
Xxxxxx & Whitney LLP, including, without limitation, costs and expenses incurred
in connection with review of Cityscape's registration statement on Form S-3 with
respect to the resale of the Common Shares and the Warrant Shares, and other due
diligence activities relating to the effectiveness of such registration
statement, incurred by the Investors in connection with the preparation,
negotiation, execution and delivery of this Agreement, the Registration Rights
Agreement, the Certificate of Designations and the Warrants and the related
agreements and documents and the transactions contemplated hereunder and
thereunder and in connection with the Closing.
Section 3.5 Securities Compliance. Cityscape shall notify each of the SEC
and Nasdaq, in accordance with their respective requirements, of the
transactions contemplated by this Agreement, the Certificate of Designations,
the Registration Rights Agreement and the Warrants and shall take all other
necessary action and proceedings as may be required and permitted by applicable
law, rule and regulation, for the legal and
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valid issuance of the Series A Preferred Stock hereunder, the Common Shares
issuable upon conversion thereof and the Warrant Shares issuable upon exercise
of the Warrants.
Section 3.6 Notices. Cityscape agrees to provide all holders of Series A
Preferred Stock with copies of all notices and information, including without
limitation notices and proxy statements in connection with any meetings, that
are provided to the holders of shares of Common Stock, contemporaneously with
the delivery of such notices or information to such Common Stock holders.
Section 3.7 Use of Proceeds. Cityscape agrees that the proceeds received
by Cityscape from the sale of the Series A Preferred Stock hereunder shall be
used for working capital purposes or retiring the existing bridge debt placed by
CIBC Wood Gundy Securities Corp.
Section 3.8 Reservation of Common Stock Issuable Upon Conversion of the
Series A Preferred Stock and Upon Exercise of the Warrants. Cityscape shall at
all times reserve and keep available out of its authorized but unissued Common
Stock, solely for the purpose of effecting the conversion of the Series A
Preferred Stock and the exercise of the Warrants, free from pre-emptive rights
such number of its Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Series A Preferred Stock and the
exercise of the Warrants, and if at any time the number of authorized but
unissued shares of Common Stock reserved for such purposes shall not be
sufficient to effect the conversion of all the then outstanding Series A
Preferred Stock and the exercise of the Warrants, Cityscape will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
it authorized but unissued Common Stock to such number of shares as shall be
sufficient for such purpose, including without limitation engaging in best
efforts to obtain the requisite stockholder approval.
Section 3.9 Corporate Existence. Cityscape will take all steps necessary
to preserve and continue its corporate existence.
Section 3.10 Issue Taxes. The Corporation shall pay any and all issue and
other taxes that may be payable in respect of any issue of Common Shares upon
conversion of Series A Preferred Stock in accordance with the Certificate of
Designations.
ARTICLE IV
CONDITIONS
Section 4.1 Conditions Precedent to the Obligation of Cityscape to Sell
the Series A Preferred Stock. The obligation hereunder of Cityscape to issue
and/or sell the Series A Preferred Stock and Warrants to the Investors is
subject to the satisfaction, at or before of the Closing, of each of the
conditions set forth below. These conditions are for Cityscape's sole benefit
and may be waived by Cityscape at any time in its sole discretion.
(a) Accuracy of the Investors' Representations and Warranties. The
representations and warranties of each Investor 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
particular date).
(b) Performance by the Investors. Each Investor shall have performed all
agreements and satisfied all conditions required to be performed or satisfied by
such Investor at or prior to the Closing.
(c) Payment of Purchase Price. At the Closing, each Investor shall deliver
the Purchase Price as indicated next to such Investor's name on the counterpart
of the signature page executed by such Investor as provided in Article I hereof.
(d) No Injunction. No statute, rule 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, the
Registration Rights Agreement, the Certificate of Designations and the Warrants.
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Section 4.2 Conditions Precedent to the Obligation of the Investors to
Purchase the Series A Preferred Stock. The obligation hereunder of each
Investor to acquire and pay for the Series A Preferred Stock and acquire the
Warrants is subject to the satisfaction, at or before the Closing, of each of
the conditions set forth below. These conditions are for the Investors' sole
benefit and may be waived by the Investors at any time in their sole discretion.
(a) Accuracy of Cityscape's Representations and Warranties. The
representation and warranties of Cityscape 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
particular date).
(b) Performance by Cityscape. Cityscape shall have performed, satisfied,
and complied in all material respects with all covenants, agreement and
conditions required to be performed or satisfied by Cityscape on or prior to the
Closing.
(c) Nasdaq. As of the Closing Date, trading in Cityscape's Common Stock
shall not have been suspended by the SEC or Nasdaq, and trading in securities
generally as reported by Nasdaq shall not have been suspended or limited.
(d) No Injunction. No statute, rule, 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 or materially adversely affects any of the transactions
contemplated by this Agreement, the Registration Rights Agreement, the
Certificate of Designations or the Warrants and no proceeding shall have been
commenced which is reasonably likely to have the effect of prohibiting or
adversely affecting any of the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Certificate of Designations or the Warrants.
(e) Opinion of Counsel. At the Closing the Investors shall have received
an opinion of counsel to Cityscape in the form attached hereto as Exhibit D.
(f) Other Documents. At the Closing the Investors shall have received such
other certificates and documents as the Investors or their counsel shall
reasonably require.
(g) Registration Rights Agreement. Cityscape shall have executed and
delivered to the Investors the Registration Rights Agreement.
(h) Officer's Certificate. Cityscape shall have delivered to the Investors
a certificate in form and substance of Exhibit E executed by an officer of
Cityscape.
(i) Certificate of Designations Filed. The Investors shall have received
copies of the filed Certificate of Designations.
(j) Certificates. The Investors shall have received certificates
evidencing the Series A Preferred Stock and the Warrants.
ARTICLE V
LEGEND; RESTRICTIONS ON TRANSFER
Each certificate representing the Series A Preferred Stock, the Common
Shares, the Warrants and the Warrant Shares shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SECURITIES EVIDENCED OR CONSTITUTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT UNLESS EITHER (i) THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS
NOT REQUIRED IN CONNECTION WITH SUCH
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DISPOSITION OR (ii) THE SALE OF SUCH SECURITIES IS MADE PURSUANT TO RULE
144 PROMULGATED UNDER THE ACT."
Each Investor agrees that it shall not sell, offer for sale, transfer,
pledge or hypothecate any of the Series A Preferred Stock, the Common Shares,
the Warrants and the Warrant Shares without registration under the Act unless
either (i) Cityscape has received an opinion of counsel, in form and substance
reasonably satisfactory to Cityscape, to the effect that registration is not
required in connection with such disposition or in connection with the
conversion or exercise of the securities so disposed or (ii) such disposition
involves the sale of Common Shares or Warrant Shares and is made pursuant to
Rule 144 promulgated under the Act.
Cityscape agrees to reissue certificates representing the Series A
Preferred Stock, Common Shares, Warrants and Warrant Shares without the legend
set forth above at such time as (i) the holder thereof is permitted to dispose
of such Series A Preferred Stock, Common Shares, Warrants and/or Warrant Shares
pursuant to Rule 144(k) under the Act, (ii) such Series A Preferred Stock,
Common Shares, Warrants and/or Warrant Shares are sold to a purchaser or
purchasers who (in the opinion of counsel to the seller or such purchaser(s), in
form and substance reasonably satisfactory to Cityscape and its counsel) are
able to dispose of such securities publicly without registration under the Act,
or (iii) such Series A Preferred Stock, Common Shares, Warrants and/or Warrant
Shares are sold in a registered offering under the Act.
If on a Conversion Date (as defined in the Certificate of Designations), or
within three (3) trading days of such Conversion Date, the Investor notifies
Cityscape that it has resold Common Shares underlying the Series A Preferred
Stock being converted, so long as the Registration Statement (as defined in the
Registration Rights Agreement) is effective, Cityscape agrees to issue
certificates representing such Common Shares resold by the Investor without the
legend set forth above to or upon the instructions of the Investor.
Upon the sale of any Common Shares sold pursuant to an effective
Registration Statement, Cityscape or its transfer agent, shall promptly, but no
later than three trading days thereafter, issue new certificates representing
such Common Shares free and clear of any legends transfer restrictions and stop
orders. In order to facilitate this, Cityscape agrees to deliver to its transfer
agent, upon the Registration Statement being declared effective, instructions
authorizing the transfer agent to effect the transfer of, and removal of legend
from, any Common Shares sold pursuant to the Registration Statement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Specific Enforcement; Consent to Jurisdiction.
(a) Cityscape and the Investors acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which any of them may be entitled by
law or equity.
(b) Cityscape and each of the Investors (i) hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court, the New York
State courts and other courts of the United States sitting in New York county,
New York for the purposes of any suit, action or proceeding arising out of or
relating to this Agreement and (ii) hereby waives, and agrees not to assert in
any such suit action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Cityscape and each of the Investors consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing in this paragraph shall affect or limit any right to
serve process in any other manner permitted by law.
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Section 6.2 Entire Agreement; Amendment. This Agreement, together with
the Registration Rights Agreement, the Warrants and the Certificate of
Designations and the agreements and documents executed in connection herewith
and therewith, contains the entire understanding of the parties with respect to
the matters covered hereby and thereby and, except as specifically set forth
herein or therein, neither Cityscape nor any Investor makes any representation,
warranty, covenant or undertaking with respect to such matters.
Section 6.3 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective upon
actual receipt of such mailing. The addresses for such communications shall be:
to Cityscape: Cityscape Financial Corp.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attn: Chief Executive Officer
General Counsel
with copies to: Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx, Esq.
to the Investor: at the address and/or fax number set forth on Schedule I of this
Agreement
Any party hereto may from time to time change its address for notices by giving
at least 10 days' written notice of such changed address to the other parties
hereto.
Section 6.4 Indemnity. Each party shall indemnify each other party
against any loss, cost or damages (including reasonable attorney's fees but
excluding consequential damages) incurred as a result of such parties' breach of
any representation, warranty, covenant or agreement in this Agreement.
Section 6.5 Waivers. Any term of this Agreement may be amended and the
observance of any term hereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of Cityscape and the holders of more than 66 2/3% of the Series A
Preferred Stock. Any amendment or waiver effected in accordance with this
Section shall be binding upon each holder of any securities purchased under this
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and
Cityscape; provided, however, that no conditions set forth in Section 4.2 may be
waived with respect to an Investor without such Investor's prior written
consent.
Section 6.6 Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
Section 6.7 Successors and Assigns. Except as otherwise provided herein,
this Agreement shall be binding upon and insure to the benefit of the parties
and their successors and permitted assigns. Cityscape may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of all Investors (which consent may be withheld for any reason in their
sole discretion), except that Cityscape may assign this Agreement in connection
with the sale of all or substantially all of its assets provided that Cityscape
is not released from any of its obligations hereunder, such assignee assumes all
obligations of Cityscape hereunder, and appropriate adjustment of the provisions
contained in this Agreement, the Registration Rights Agreement, the Certificate
of Designations and the Warrants is made, in form and substance satisfactory to
the Investors, to place the Investors in the same position as they would have
been but for such assignment, in accordance with the terms of the Certificate of
Designations and the Warrants. Any Investor may assign this Agreement (in whole
or in part) or any rights or obligations hereunder without the consent of
Cityscape in connection with any sale or transfer of all or any portion of the
Series A Preferred Stock or the Warrants held by such Investor, provided such
sale or transfer is in compliance with Article V hereof and that no Investor
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may assign this Agreement prior to the Closing Date without Cityscape's prior
written consent except to an affiliate or affiliates of such Investor, provided
such affiliate or affiliates agrees in writing to be bound by the terms hereof.
Section 6.8 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
Section 6.9 Governing Law. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with the internal
laws of the State of New York without regard to such state's principles of
conflict of laws.
Section 6.10 Survival. The representations ant warranties and the
agreements and covenants of Cityscape and each Investor contained herein shall
survive the Closing.
Section 6.11 Execution. This Agreement may be executed in counterparts,
all of which shall be considered one the same agreement, it being understood
that all parties need not sign the same counterpart.
Section 6.12 Publicity. Cityscape agrees that it will not disclose, and
will not include in any public announcement the name of any Investor without its
express written consent, unless and until such disclosure is required by law or
applicable regulation, and then only to the extent of such requirement. Except
as may be required by law, Cityscape and each Investor shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any press release or make any
such public statement prior to such consultation.
Section 6.13 (a) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that such severability shall be
ineffective if it materially changes the economic benefit of this Agreement to
any party.
(b) Obligations Several and Not Joint. The parties acknowledge and agree
that the Investors are not agents, affiliates or partners of each other, that
all representations, warranties, covenants and agreements of the Investors
hereunder are several and not joint, that no Investor shall have any
responsibility or liability for the representations, warrants, agreements, acts
or omissions of any other Investor, and that any rights granted to "Investors"
hereunder shall be enforceable by each Investor hereunder.
Section 6.14 Covenant of the Investor. Each of the Investors, severally
and not jointly, hereby covenants and agrees that it will not, directly or
through an affiliate create the "lowest trading price" (as defined in the
Certificate of Designations) for the Common Stock on any of the four (4) (or
fifteen (15) if applicable) consecutive trading days immediately preceding the
day of delivery by such Investor of a Conversion Notice (as defined in the
Certificate of Designations).
Section 6.15 Limitations on Investor's Right to Convert shares of Series A
Preferred Stock. Notwithstanding anything to the contrary contained herein, no
shares of Series A Preferred Stock may be converted by an Investor to the extent
that, after giving effect to Common Shares to be issued pursuant to a Conversion
Notice (as such term is defined in the Certificate of Designations), the total
number of Common Shares deemed beneficially owned by such Investor, together
with all Common Shares deemed beneficially owned by the Investor's "affiliates"
(as defined in Rule 144 of the Act) that would be aggregated for purposes of
determining whether a group under Section 13(d) of the Securities Exchange Act
of 1934 exists, would exceed 4.9% of the total issued and outstanding shares of
the Corporation's Common Stock, provided that each Investor shall have the right
to waive this restriction, in whole or in part, immediately in the case of a
pending Change of Control Transaction (as such term is defined in the
Certificate of Designations) and in any other case upon 61 days prior notice to
the Corporation. The delivery of a Conversion Notice by any Investor shall be
deemed a representation by such Investor that it is in compliance with this
paragraph.
Section 6.16 Ineffective Conversion of shares of Series A Preferred Stock.
A conversion by an Investor of shares of Series A Preferred Stock into Common
Shares shall be deemed ineffective, pursuant to an election by such Investor, to
the extent that, during the period commencing on the date such Common Shares are
delivered to the Investor upon such conversion and ending 5 trading days
thereafter (i) such Investor is unable to resell all or a portion of such
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Common Shares because the Registration Statement shall, for any reason, not be
available or (ii) Cityscape notifies the Investors of its intent to purchase, in
accordance with Sections 3(h)(3) or 3(h)(6) of the Certificate of Designations,
all of the outstanding shares of Series A Preferred Stock held by the Investors
at the time of such notice. The Investor shall promptly, but no later than 5
trading days from the end of the 5 trading day period specified in the previous
sentence, give Cityscape notice of an election pursuant to this Section 6.16.
Cityscape shall, upon receipt of such notice of election from the Investor,
re-issue shares of Series A Preferred Stock to such Investor as promptly as
practicable upon surrender by the Investor of the Common Shares held by such
Investor which are the subject of this Section 6.16.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CITYSCAPE FINANCIAL CORP.
By: /s/ Xxxxxx X. Patent
--------------------------------------
Name: Xxxxxx X. Patent
Title: Executive Vice President
INVESTOR:
Credit Suisse First Boston Corp.
By: /s/ Xxxx XxXxxx
Name: Xxxx XxXxxx
Title: Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 300
Number of Warrants Purchased: 30,000
-------------------------------------
Address for Notices:
Attn: Xxxxx Xxxxx
00 Xxxxxxx Xxx.
0xx Xxxxx
Xxx Xxxx, XX 00000
INVESTOR:
CIBC Wood Gundy Securities Corp.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 850
Number of Warrants Purchased: 85,000
-------------------------------------
Address for Notices:
Xxxx X. Xxxxxx
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
INVESTOR:
Bear, Xxxxxxx & Co. Inc.
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Senior Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 300
Number of Warrants Purchased: 30,000
-------------------------------------
Address for Notices:
INVESTOR:
Paloma Securities L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 1,050
Number of Warrants Purchased: 105,000
-------------------------------------
Address for Notices:
Xxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
INVESTOR:
SoundShore Partners L.P.
*-BY: AIG International Asset Management
Ltd, as General Partner of SoundShore
Partners L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice-President*
Number of shares of Series A Preferred
Stock Purchased at the Closing: 50
Number of Warrants Purchased: 5,000
-------------------------------------
Address for Notices:
INVESTOR:
Halifax Fund, L.P.
By: THE PALLADIN GROUP, L.P., as
attorney-in-fact
By: PALLADIN CAPITAL
MANAGEMENT L.L.C., General Partner
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 1,000
Number of Warrants Purchased: 100,000
-------------------------------------
Address for Notices:
Halifax Fund L.P.
c/o Palladin Group, L.P.
00 Xxxx 00xx Xx.
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx
INVESTOR:
Hick Investment Ltd.
By: THE PALLADIN GROUP, L.P., as
attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT L.L.C.,
General Partner
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 50
Number of Warrants Purchased: 5,000
-------------------------------------
Address for Notices:
Halifax Fund L.P.
c/o Palladin Group, L.P.
00 Xxxx 00xx Xx.
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx
INVESTOR:
Colonial Penn Insurance Co.
By: THE PALLADIN GROUP, L.P., as
attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT L.L.C.,
General Partner
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 50
Number of Warrants Purchased: 5,000
---------------------------------------
Address for Notices:
Halifax Fund L.P.
c/o Palladin Group, L.P.
00 Xxxx 00xx Xx.
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx
INVESTOR:
Colonial Penn Insurance Co.
By: THE PALLADIN GROUP, L.P., as
attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT,
L.L.C., General Partner
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 50
Number of Warrants Purchased: 5,000
----------------------------------------
Address for Notices:
Halifax Fund L.P.
c/o Palladin Group, L.P.
00 Xxxx 00xx Xx.
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx
INVESTOR:
Gleneagles Fund Company
By: THE PALLADIN Group, L.P.,
as attorney-in-fact
By: PALLADIN CAPITAL MANAGEMENT L.L.C.,
General Partner
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 150
Number of Warrants Purchased: 15,000
----------------------------------------
Address for Notices:
Halifax Fund L.P.
c/o Palladin Group, L.P.
00 Xxxx 00xx Xx.
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxx
INVESTOR:
Galileo Capital LLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Manager
Number of shares of Series A Preferred
Stock Purchased at the Closing: 150
Number of Warrants Purchased: 15,000
-------------------------------------
Address for Notices:
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: NASCO CHEMICAL
COMPANY RETIREMENT TRUST
By: /s/ Xxxxxx X'Xxxxxx
Name: Xxxxxx X'Xxxxxx
Title: Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 20
Number of Warrants Purchased: 2,000
-------------------------------------
Address for Notices:
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: PENSION RESERVES
INVESTMENT MANAGEMENT BOARD
By: /s/ Xxxxxx X'Xxxxxx
Name: Xxxxxx X'Xxxxxx
Title: Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 130
Number of Warrants Purchased: 13,000
-------------------------------------
Address for Notices:
INVESTOR:
FROLEY REVY INVESTMENT CO. INC.
ACCOUNT: STATE OF OREGON
EQUITY FUND
By: /s/ Xxxxxx X'Xxxxxx
Name: Xxxxxx X'Xxxxxx
Title: Managing Director
Number of shares of Series A Preferred
Stock Purchased at the Closing: 350
Number of Warrants Purchased: 35,000
-------------------------------------
Address for Notices:
INVESTOR:
Continental Casualty Company,
Designated High Yield
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 50
Number of Warrants Purchased: 5,000
-------------------------------------
Address for Notices:
INVESTOR:
Continental Casualty Company
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Number of shares of Series A Preferred
Stock Purchased at the Closing: 450
Number of Warrants Purchased: 45,000
-------------------------------------
Address for Notices:
15
EXHIBITS
Exhibit A Certificate of Designations of Cityscape
Exhibit B Form of Warrant
Exhibit C Form of Certificate of Series A Preferred
Stock
Exhibit D Form of Opinion of Counsel
Exhibit E Form of Officer's Certificate
