EXHIBIT 10.8
INVESTMENT AGREEMENT
INVESTMENT AGREEMENT (this "AGREEMENT"), dated as of February 6, 2004, by
and between Payment Data Systems, Inc., a Nevada corporation (the "Company"),
and Dutchess Private Equities Fund, L.P., a Delaware limited partnership (the
"Investor").
Whereas, the parties desire that, upon the terms and subject to the
conditions contained herein, the Investor shall invest up to Ten Million Dollars
($10,000,000) to purchase the Company's Common Stock, .001 par value per share
(the "Common Stock");
Whereas, such investments will be made in reliance upon the provisions of
Section 4(2) under the Securities Act of 1933, as amended (the "1933 Act"), Rule
506 of Regulation D, and the rules and regulations promulgated thereunder,
and/or upon such other exemption from the registration requirements of the 1933
Act as may be available with respect to any or all of the investments in Common
Stock to be made hereunder; and
Whereas, contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement substantially in the form attached hereto as Exhibit A (as amended
from time to time, the "Registration Rights Agreement") pursuant to which the
Company has agreed to provide certain registration rights under the 1933 Act,
and the rules and regulations promulgated thereunder, and applicable state
securities laws.
NOW THEREFORE, in consideration of the foregoing recitals, which shall be
considered an integral part of this Agreement, the covenants and agreements set
forth hereafter, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Investor hereby
agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings specified or indicated below, and such meanings shall be equally
applicable to the singular and plural forms of such defined terms.
"1933 Act" shall have the meaning set forth in the preamble, above.
"1934 Act" shall mean the Securities Exchange Act of 1934, as it may be
amended.
"Affiliate" shall have the meaning specified in Section 5(h), below.
"Agreement" shall mean this Investment Agreement.
"Best Bid" shall mean the highest posted bid price of the Common Stock.
"Buy In" shall have the meaning specified in Section 6, below.
"Buy In Adjustment Amount" shall have the meaning specified in Section 6.
"Closing" shall have the meaning specified in Section 2(h).
"Closing Date" shall mean seven (7) Trading Days following the Put Notice
Date.
"Common Stock" shall have the meaning set forth in the preamble to this
Agreement.
"Control" or "Controls" shall have the meaning specified in Section 5(h).
"Covering Shares" shall have the meaning specified in Section 6.
"Effective Date" shall mean the date the SEC declares effective under the
1933 Act the Registration Statement covering the Securities.
"Environmental Laws" shall have the meaning specified in Section 4(m),
below.
"Execution Date" shall mean the date indicated in the preamble to this
Agreement.
"Indemnitiees" shall have the meaning specified in Section 11, below.
"Indemnified Liabilities" shall have the meaning specified in Section 11,
below.
"Ineffective Period" shall mean any period of time that the Registration
Statement or any Supplemental Registration Statement (as defined in the
Registration Rights Agreement) becomes ineffective or unavailable for use for
the sale or resale, as applicable, of any or all of the Registrable Securities
(as defined in the Registration Rights Agreement) for any reason (or in the
event the prospectus under either of the above is not current and deliverable)
during any time period required under the Registration Rights Agreement.
"Investor" shall have the meaning indicated in the preamble of this
Agreement.
"Major Transaction" shall have the meaning specified in Section 2(g),
above.
"Material Adverse Effect" shall have the meaning specified in Section 4(a).
"Maximum Common Stock Issuance" shall have the meaning specified in Section
2(i).
"Minimum Acceptable Price" with respect to any Put Notice Date shall mean
75% of the lowest closing bid prices for the ten Trading Day period immediately
preceding such Put Notice Date.
"Open Period" shall mean the period beginning on and including the Trading
Day immediately following the Effective Date and ending on the earlier to occur
of (I) the date which is thirty six (36) months from the Effective Date; and
(II) termination of the Agreement in accordance with Section 9, below.
"Payment Amount" shall have the meaning specified in Section 2(m), below.
"Pricing Period" shall mean the period beginning on the Put Notice Date and
ending on and including the date that is five (5) Trading Days after such Put
Notice Date.
"Principal Market" shall mean the American Stock Exchange, Inc., the
National Association of Securities Dealers, Inc. Over-the-Counter Bulletin
Board, the Nasdaq National Market System or the Nasdaq SmallCap Market,
whichever is the principal market on which the Common Stock is listed.
"Prospectus" shall mean the prospectus, preliminary prospectus and supplemental
prospectus used in connection with the Registration Statement.
"Purchase Amount" shall mean the total amount being paid by the Investor on
a particular Closing Date to purchase the Securities.
"Purchase Price" shall mean ninety-five percent (95%) of the lowest closing
Best Bid price of the Common Stock during the Pricing Period.
"Put Amount" shall have the meaning set forth in Section 2(b) hereof.
"Put Notice" shall mean a written notice sent to the Investor by the
Company stating the Put Amount of Shares the Company intends to sell to the
Investor pursuant to the terms of the Agreement and stating the current number
of Shares issued and outstanding on such date.
"Put Notice Date" shall mean the Trading Day immediately following the day
on which the Investor receives a Put Notice, however a Put Notice shall be
deemed delivered on (X) the Trading Day it is received by facsimile or otherwise
by the Investor if such notice is received prior to 9:00 am Eastern Time, or (Y)
the immediately succeeding Trading Day if it is received by facsimile or
otherwise after 9:00 am Eastern Time on a Trading Day. No Put Notice may be
deemed delivered on a day that is not a Trading Day.
"Put Restriction" shall mean the days between the end of the Pricing Period
and the date on which the Investor deems the Put closed. During this time, the
Company shall not be entitled to deliver another Put Notice.
"Registration Period" shall have the meaning specified in Section 5(c),
below.
"Registration Rights Agreement" shall have the meaning set forth in the
recitals, above.
"Registration Statement" means the registration statement of the Company
filed under the 1933 Act covering the Common Stock issuable hereunder.
"Related Party" shall have the meaning specified in Section 5(h).
"Repurchase Event" shall have the meaning specified in Section 2(m).
"Resolution" shall have the meaning specified in Section 8(e).
"SEC" shall mean the U.S. Securities & Exchange Commission.
"SEC Documents" shall have the meaning specified in Section 4(f).
"Securities" shall mean the shares of Common Stock issued pursuant to the
terms of the Agreement.
"Shares" shall mean the shares of the Company's Common Stock.
"Sold Shares" shall have the meaning specified in Section 6.
"Subsidiaries" shall have the meaning specified in Section 4(a).
"Trading Day" shall mean any day on which the Principal Market for the
Common Stock is open for trading, from the hours of 9:30 am until 4:00 pm.
"Transaction Documents" shall mean this Agreement, the Registration Rights
Agreement, and each of the other agreements entered into by the parties hereto
in connection with this Agreement.
"Valuation Event" shall have the meaning specified in Section 2(j).
SECTION 2. PURCHASE AND SALE OF COMMON STOCK.
(A) PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and
conditions set forth herein, the Company shall issue and sell to the Investor,
and the Investor shall purchase from the Company, up to that number of Shares
having an aggregate Purchase Price of Ten Million Dollars ($10,000,000).
(B) DELIVERY OF PUT NOTICES.
(I) Subject to the terms and conditions of the Transaction Documents, and
from time to time during the Open Period, the Company may, in its sole
discretion, deliver a Put Notice to the Investor which states the Put Amount
which the Company intends to sell to the Investor on a Closing Date. The Put
Notice shall be in the form attached hereto as Exhibit B and incorporated herein
by reference. The amount that the Company shall be entitled to Put to the
Investor in any single Put Notice (the "Put Amount") shall be equal to, at the
Company's election, either: (A) four hundred percent (400%) of the average daily
volume (U.S. market only) of the Common Stock for the ten (10) Trading Days
prior to the applicable Put Notice Date, multiplied by the average of the three
(3) daily closing Best Bid prices immediately preceding the Put Date, or (B)
twenty five thousand $25,000; provided that in no event will the Put Amount be
more than One Million Dollars ($1,000,000) with respect to any single Put.
During the Open Period, the Company shall not be entitled to submit a Put Notice
until after the previous Closing has been completed. The Purchase Price for the
Common Stock identified in the Put Notice shall be equal to 95% of the lowest
closing bid price of the Common Stock during the Pricing Period.
(II) If any closing bid price during the applicable Pricing Period with
respect to that Put Notice is less than 75% of the lowest closing Best Bid
prices of the Common Stock for the Ten (10) Trading Days prior to the Put Notice
Date (the "Minimum Acceptable Price"), the Put Notice will terminate at the
Company's request sent in accordance with Section 9 of this Agreement. In the
event that the closing bid price for the applicable Pricing Period is less than
the Minimum Acceptable Price, the Company may elect, by sending written notice
to the Investor to cancel the Put Notice.
(III) Within seven calendar days prior the commencement of each calendar
quarter occurring subsequent to the commencement of the Open Period, the Company
shall undertake to notify Investor as to its reasonable expectations as to the
Put Amount it intends to raise during such calendar quarter, if any, through the
issuance of Put Notices. Such notification shall constitute only the Company's
good faith estimate with respect to such calendar quarter and shall in no way
obligate the Company to raise such amount during such calendar quarter or
otherwise limit its ability to deliver Put Notices during such calendar quarter.
The failure by the Company to comply with this provision may be cured by
notifying the Investor at any time as to the Company's reasonable expectations
with respect to the current calendar quarter.
(C) INTEREST. It is the intention of the parties that any interest that
may be deemed to be payable under this Agreement shall not exceed the maximum
amount permitted under applicable law. If any applicable law sets the maximum
interest amount, and any payment required under this Agreement exceeds such
limit, then: (I) any such interest shall be reduced by the amount necessary to
reduce the interest to the legally permitted limit; and (II) any sums already
collected (if any) from a party which exceed the legally permitted limits will
be refunded to such party.
(D) INVESTOR'S OBLIGATION TO PURCHASE SHARES. Subject to the conditions
set forth in this Agreement, following the Investor's receipt of a validly
delivered Put Notice, the Investor shall be required to purchase from the
Company during the related Pricing Period that number of Shares having an
aggregate Purchase Price equal to the lesser of (i) the Put Amount set forth in
the Put Notice, and (ii) 20% of the aggregate trading volume of the Common Stock
during the applicable Pricing Period times (x) 95% of the lowest closing bid
prices of the Company's Common Stock during the specified Pricing Period, but
only if said Shares bear no restrictive legend, are not subject to stop transfer
instructions, pursuant to Section 2(h), prior to the applicable Closing Date.
(E) LIMITATION ON INVESTOR'S OBLIGATION TO PURCHASE SHARES. In no event
shall the Investor purchase Shares (whether from the Company or in public or
private secondary transactions) other than pursuant to this Agreement until such
date as this Agreement is terminated.
(F) CONDITIONS TO INVESTOR'S OBLIGATION TO PURCHASE SHARES.
Notwithstanding anything to the contrary in this Agreement, the Company shall
not be entitled to deliver a Put Notice and the Investor shall not be obligated
to purchase any Shares at a Closing (as defined in Section 2(h)) unless each of
the following conditions are satisfied:
(I) a Registration Statement shall have been declared effective and shall
remain effective and available for the resale of all the Registrable Securities
(as defined in the Registration Rights Agreement) at all times until the Closing
with respect to the subject Put Notice;
(II) at all times during the period beginning on the related Put Notice
Date and ending on and including the related Closing Date, the Common Stock
shall have been listed on the Principal Market and shall not have been suspended
from trading thereon for a period of five consecutive Trading Days during the
Open Period or one day during a Pricing Period, and the Company shall not have
been notified of any pending or threatened proceeding or other action to de-list
or suspend the Common Stock;
(III) the Company has complied with its obligations and is otherwise not in
breach of a material provision of, or in default under, this Agreement, the
Registration Rights Agreement or any other agreement executed in connection
herewith which has not been corrected prior to delivery of the Put Notice Date;
(IV) no injunction shall have been issued and remain in force, or action
commenced by a governmental authority which has not been stayed or abandoned,
prohibiting the purchase or the issuance of the Securities; and
(V) the issuance of the Securities will not violate any shareholder
approval requirements of the Principal Market.
If any of the events described in clauses (i) through (v) above occurs during a
Pricing Period, then the Investor shall have no obligation to purchase the Put
Amount of Common Stock set forth in the applicable Put Notice.
(G) MAJOR TRANSACTION. For purposes of this Agreement, a "Major
Transaction" shall be deemed to have occurred upon the closing of any of the
following events: (I) the consolidation, merger or other business combination of
the Company with or into another person (other than pursuant to a migratory
merger effected solely for the purposes of changing the jurisdiction of
incorporation of the Company or other than a transaction in which the Company is
the surviving corporation); (II) the sale or transfer of all or substantially
all of the Company's assets; or (III) the consummation of a purchase, tender or
exchange offer made to, and accepted by, the holders of more than 50% of the
economic interest in, or the combined voting power of all classes of voting
stock of, the Company.
(H) MECHANICS OF PURCHASE OF SHARES BY INVESTOR. Subject to the
satisfaction of the conditions set forth in Sections 2(f), 7 and 8, the closing
of the purchase by the Investor of Shares (a "Closing") shall occur on the date
which is no later than seven Trading Days following the applicable Put Notice
Date (each a "Closing Date"). Prior to each Closing Date, (I) the Company shall
deliver to the Investor pursuant to the this Agreement, certificates
representing the Shares to be issued to the Investor on such date and registered
in the name of the Investor; and (II) the Investor shall deliver to the Company
the Purchase Price to be paid for such Shares, determined as set forth in
accordance with the terms of this Agreement. In lieu of delivering physical
certificates representing the Securities and provided that the Company's
transfer agent then is participating in The Depository Trust Company ("DTC")
Fast Automated Securities Transfer ("FAST") program, upon request of the
Investor, the Company shall use its commercially reasonable efforts to cause its
transfer agent to electronically transmit the Securities by crediting the
account of the Investor's prime broker (which shall be specified by the Investor
a reasonably sufficient time in advance) with DTC through its Deposit Withdrawal
Agent Commission ("DWAC") system.
The Company understands that a delay in the issuance of Securities beyond
the Closing Date could result in economic loss to the Investor. After the
Effective Date, as compensation to the Investor for such loss, the Company
agrees to pay late payments to the Investor for late issuance of Securities
(delivery of Securities after the applicable Closing Date) in accordance with
the following schedule (where "No. of Days Late" is defined as the number of
days beyond the Closing Date):
LATE PAYMENT FOR EACH
NO. OF DAYS LATE $10,000 OF COMMON STOCK
1 $100
2 $200
3 $300
4 $400
5 $500
6 $600
7 $700
8 $800
9 $900
10 $1,000
Over 10 $1,000 + $200 for each
Business Day late beyond 10 days
The Company shall pay any payments incurred under this Section in immediately
available funds upon demand. Nothing herein shall limit the Investor's right to
pursue actual damages for the Company's failure to issue and deliver the
Securities to the Investor, except to the extent that such late payments shall
constitute payment for and offset any such actual damages alleged by the
Investor, and any Buy In Adjustment Amount.
(I) OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained
herein to the contrary, if during the Open Period the Company becomes listed on
an exchange that limits the number of shares of Common Stock that may be issued
without shareholder approval, then the number of Shares issuable by the Company
and purchasable by the Investor, shall not exceed that number of the shares of
Common Stock that may be issuable without shareholder approval, subject to
appropriate adjustment for stock splits, stock dividends, combinations or other
similar recapitalization affecting the Common Stock (the "Maximum Common Stock
Issuance"), unless the issuance of Shares, in excess of the Maximum Common Stock
Issuance shall first be approved by the Company's shareholders in accordance
with applicable law and the By-laws and Amended and Restated Certificate of
Incorporation of the Company, if such issuance of shares of Common Stock could
cause a delisting on the Principal Market. The parties understand and agree that
the Company's failure to seek or obtain such shareholder approval shall in no
way adversely affect the validity and due authorization of the issuance and sale
of Securities or the Investor's obligation in accordance with the terms and
conditions hereof to purchase a number of Shares in the aggregate up to the
Maximum Common Stock Issuance limitation, and that such approval pertains only
to the applicability of the Maximum Common Stock Issuance limitation provided in
this Section 2(i).
(J) For the purpose of this Agreement, the term "Valuation Event" means
the Company taking any of the following actions at any time during a Pricing
Period:
(I) the subdivision or combinations of the Company's Common Stock;
(II) the payment of a dividend or any other distribution with respect to shares
of the Company's Common Stock;
(III) the issuance of any options or other rights to subscribe for or
purchase Common Stock ("Options") or any securities convertible into or
exchangeable for Common Stock ("Convertible Securities"), the price per share
for which Common Stock is shall be less than the bid price in effect immediately
prior to such issuance of such Options or Convertible Securities;
(IV) the issuance of shares of Common Stock other than as provided in the
foregoing subsections (i) through (iii), at a price per share less, or for other
consideration lower, than the bid price in effect immediately prior to such
issuance, or without consideration; or
(V) the distribution of its assets or evidences of indebtedness to the
holders of Common Stock as a dividend in liquidation or by way of return of
capital or other than as a dividend payable out of earnings or surplus legally
available for dividends under applicable law or any distribution to such holders
made in respect of the sale of all or substantially all of the Company's assets
(other than under the circumstances provided for in the foregoing subsections
(i) through (iv)).
(K) The Company agrees that it shall not take any action that would result
in a Valuation Event occurring during a Pricing Period.
(L) PROCEDURE IF MATERIAL FACTS ARE REASONABLY BELIEVED TO BE UNTRUE OR
ARE OMITTED. In the event after such consultation the Investor or the Investor's
counsel reasonably believes that the Registration Statement contains an untrue
statement or a material fact or omits a material fact required to be stated in
the Registration Statement or necessary to make the statements contained
therein, in light of the circumstances in which they were made, not misleading,
(I) the Company shall file with the SEC an amendment to the Registration
Statement responsive to such alleged untrue statement or omission and provide
the Investor, as promptly as practicable, with copies of the Registration
Statement and related Prospectus, as so amended, or (II) if the Company disputes
the existence of any such material misstatement or omission, and in the event
the dispute relates to the adequacy of financial disclosure and the Investor
shall reasonably request, the Company's independent auditors shall provide to
the Company a letter ("Agreed Upon Procedures Report") outlining the performance
of such "agreed upon procedures," which shall not require any more than the SAS
71 review described above as shall be reasonably requested by the Investor and
the Company shall provide the Investor with a copy of such letter.
(M) DELISTING; SUSPENSION. If at any time during the Open Period or
within 30 calendar days after the end of the Open Period; (I) the Registration
Statement, after it has been declared effective, shall not remain effective and
available for sale of all the Registrable Securities for a period exceeding 10
calendar days; (II) the Common Stock shall not be listed on the Principal Market
or shall have been suspended from trading thereon (excluding suspensions of not
more than one trading day resulting from business announcements by the Company)
or the Company shall have been notified of any pending or threatened proceeding
or other action to delist or suspend the Common Stock; (III) there shall have
occurred a Major Transaction (as defined in Section 2(g)) or the public
announcement of a pending Major Transaction which has not been abandoned or
terminated; or (IV) the Registration Statement is no longer effective or stale
for a period of more than five Trading Days as a result of the Company's failure
to timely file its financial statements or for any other reason, the Company
shall repurchase, within 30 calendar days of the occurrence of one of the events
listed in clauses (i), (ii), (iii) or (iv) above (each a "Repurchase Event") and
subject to the limitations imposed by applicable federal and state law, all or
any part of the Securities issued to the Investor within the 60 Trading Days
preceding the occurrence of the Repurchase Event and then held by the Investor
at a price per Share equal to the highest closing bid price during the period
beginning on the date of the Repurchase Event and ending on and including the
date on which the Investor is paid by the Company for the repurchase of the
Shares (the "Payment Amount"). If the Company fails to pay to the Investor the
full aggregate Payment Amount within ten calendar days of the occurrence of a
Repurchase Event, the Company shall pay to the Investor, on the first Trading
Day following such tenth calendar day, in addition to and not in lieu of the
Payment Amount payable by the Company to the Investor, an amount equal to 2% of
the aggregate Payment Amount then due and payable to the Investor, in cash by
wire transfer, plus compounded annual interest of 18% on such Payment
Amount during the period, beginning on the day following such tenth calendar
day, during which such Payment Amount, or any portion thereof, is outstanding.
(N) GOVERNMENTAL OR CRIMINAL ACTIONS. During the Open Period, the Company
or any of its management or board of directors ("Insiders") shall not be the
cause for an investigation by any governmental agencies whether foreign or
domestic. All Insiders shall also not be charged with any criminal activities
whether it be foreign or domestic, securities related or non-securities related
for the Open Period.
SECTION 3. INVESTOR'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Investor represents and warrants to the Company, and covenants, that:
(A) SOPHISTICATED INVESTOR. The Investor has, by reason of its business
and financial experience, such knowledge, sophistication and experience in
financial and business matters and in making investment decisions of this type
that it is capable of (I) evaluating the merits and risks of an investment in
the Securities and making an informed investment decision; (II) protecting its
own interest; and (III) bearing the economic risk of such investment for an
indefinite period of time.
(B) AUTHORIZATION; ENFORCEMENT. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Investor and is a valid and
binding agreement of the Investor enforceable against the Investor in accordance
with its terms, subject as to enforceability to general principles of equity and
to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors' rights and remedies.
(C) SECTION 9 OF THE 1934 ACT. During the term of this Agreement, the
Investor will comply with the provisions of Section 9 of the 1934 Act, and the
rules promulgated thereunder, with respect to transactions involving the Common
Stock. The Investor agrees not to short, either directly or indirectly through
its affiliates, principals or advisors, the Company's common stock during the
term of this Agreement.
(D) ACCREDITED INVESTOR. Investor is an "Accredited Investor" as that
term is defined in Rule 501(a)(3) of Regulation D of the 1933 Act.
(E) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Investor and the consummation by the Investor of
the transactions contemplated hereby and thereby will not result in a violation
of Partnership Agreement or other organizational documents of the Investor.
(F) OPPORTUNITY TO DISCUSS. The Investor has had an opportunity to
discuss the business, management and financial affairs of the Company with the
Company's management to a level of satisfactory conditions for this type of
investment.
(G) INVESTMENT PURPOSES. The Investor is purchasing the Securities for
its own account for investment purposes and not with a view towards distribution
and agrees to resell or otherwise dispose of the Securities solely in accordance
with the registration provisions of the 1933 Act (or pursuant to an exemption
from such registration provisions).
(H) NO REGISTRATION AS A BROKER OR DEALER. The Investor is not and will
not be required to be registered as a "broker or "dealer" under the 1934 Act,
either as a result of its execution and performance of its obligations under
this Agreement or otherwise.
(I) GOOD STANDING. The Investor is a Limited Partnership, duly organized,
validly existing and in good standing in the State of Delaware.
(J) TAX LIABILITIES. The Investor understands that it is liable for its own
tax liabilities.
(K) REGULATION M. The Investor will comply with Regulation M under the
1934 Act, if applicable
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the Schedules attached hereto, or as disclosed on
the Company's SEC Documents, the Company represents and warrants to the Investor
that:
(A) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized and validly existing in good standing under the laws of the State of
Nevada, and has the requisite corporate power and authorization to own its
properties and to carry on its business as now being conducted. Each of the
Company and its Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect. As used in this
Agreement, "Material Adverse Effect" means any material adverse effect on the
business, properties, assets, operations, results of operations, financial
condition or prospects of the Company and its Subsidiaries, if any, taken as a
whole, or on the transactions contemplated hereby or by the agreements and
instruments to be entered into in connection herewith, or on the authority or
ability of the Company to perform its obligations under the Transaction
Documents (as defined in Section 1 and 4(b), below).
(B) AUTHORIZATION; ENFORCEMENT; COMPLIANCE WITH OTHER INSTRUMENTS.
(I) The Company has the requisite corporate power and authority to enter into
and perform this Agreement, the Registration Rights Agreement, and each of the
other agreements entered into by the parties hereto in connection with the
transactions contemplated by this Agreement (collectively, the "Transaction
Documents"), and to issue the Securities in accordance with the terms hereof and
thereof.
(II) The execution and delivery of the Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby,
including without limitation the reservation for issuance and the issuance of
the Securities pursuant to this Agreement, have been duly and validly authorized
by the Company's Board of Directors and no further consent or authorization is
required by the Company, its Board of Directors, or its shareholders.
(III) The Transaction Documents have been duly and validly executed and
delivered by the Company.
(IV) The Transaction Documents constitute the valid and binding obligations of
the Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of creditors'
rights and remedies.
(C) CAPITALIZATION. As of the date hereof, the authorized capital stock of
the Company consists of (i) 200,000,000 shares of Common Stock, .001 par value
per share, of which as of the date hereof, 20,722,656 shares are issued and
outstanding, and 2,000,000 shares of Preferred Stock, $.01 par value per share,
of which, as of the date hereof, no shares are issued and outstanding. All of
such outstanding shares have been, or upon issuance will be, validly issued and
are fully paid and nonassessable. Except as disclosed in the Company's publicly
available filings with Periodic Filings or in the Schedules attached hereto, (i)
no shares of the Company's capital stock are subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the
Company; (ii) there are no outstanding debt securities; (iii) there are no
outstanding shares of capital stock, options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
Subsidiaries; (iv) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the sale of any of
their securities under the 1933 Act (except the Registration Rights Agreement);
(v) there are no outstanding securities of the Company or any of its
Subsidiaries which contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to redeem a security of the
Company or any of its Subsidiaries; (vi) there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities as described in this Agreement; (vii) the Company
does not have any stock appreciation rights or "phantom stock" plans or
agreements or any similar plan or agreement; and (viii) there is no dispute as
to the classification of any shares of the Company's capital stock. The Company
has furnished to the Investor, or the Investor has had access through XXXXX to,
true and correct copies of the Company's Amended and Restated Certificate of
Incorporation, as in effect on the date hereof (the "Certificate of
Incorporation"), and the Company's By-laws, as in effect on the date hereof (the
"By-laws"), and the terms of all securities convertible into or exercisable for
Common Stock and the material rights of the holders thereof in respect thereto.
(D) ISSUANCE OF SHARES. The Company has reserved 40,000,000 Shares for
issuance pursuant to this Agreement has been duly authorized and reserved for
issuance (subject to adjustment pursuant to the Company's covenant set forth in
Section 5(f) below) pursuant to this Agreement. Upon issuance in accordance
with this Agreement, the Securities will be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof. In the event the Company cannot register a sufficient number of
Shares for issuance pursuant to this Agreement, the Company will use its best
efforts to authorize and reserve for issuance the number of Shares required for
the Company to perform its obligations hereunder as soon as reasonably
practicable.
(E) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby will not (I) result in a violation
of the Certificate of Incorporation, any Certificate of Designations,
Preferences and Rights of any outstanding series of preferred stock of the
Company or the By-laws; or (II) conflict with, or constitute a material default
(or an event which with notice or lapse of time or both would become a material
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any material agreement, contract, indenture
mortgage, indebtedness or instrument to which the Company or any of its
Subsidiaries is a party, or result in a violation of any law, rule, regulation,
order, judgment or decree (including United States federal and state securities
laws and regulations and the rules and regulations of the Principal Market or
principal securities exchange or trading market on which the Common Stock is
traded or listed) applicable to the Company or any of its Subsidiaries or by
which any property or asset of the Company or any of its Subsidiaries is bound
or affected. Except as disclosed in Schedule 4(e), neither the Company nor its
Subsidiaries is in violation of any term of, or in default under, the
Certificate of Incorporation, any Certificate of Designations, Preferences and
Rights of any outstanding series of preferred stock of the Company or the
By-laws or their organizational charter or by-laws, respectively, or any
contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company or
its Subsidiaries, except for possible conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations that would not
individually or in the aggregate have a Material Adverse Effect. The business of
the Company and its Subsidiaries is not being conducted, and shall not be
conducted, in violation of any law, statute, ordinance, rule, order or
regulation of any governmental authority or agency, regulatory or
self-regulatory agency, or court, except for possible violations the sanctions
for which either individually or in the aggregate would not have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as
required under the 1933 Act, the Company is not required to obtain any consent,
authorization, permit or order of, or make any filing or registration (except
the filing of a registration statement) with, any court, governmental authority
or agency, regulatory or self-regulatory agency or other third party in order
for it to execute, deliver or perform any of its obligations under, or
contemplated by, the Transaction Documents in accordance with the terms hereof
or thereof. All consents, authorizations, permits, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof and are
in full force and effect as of the date hereof. Except as disclosed in Schedule
4(e) with respect to certain rights of first refusal granted by the Company, the
Company and its Subsidiaries are unaware of any facts or circumstances which
might give rise to any of the foregoing. The Company is not, and will not be, in
violation of the listing requirements of the Principal Market as in effect on
the date hereof and on each of the Closing Dates and is not aware of any facts
which would reasonably lead to delisting of the Common Stock by the Principal
Market in the foreseeable future.
(F) SEC DOCUMENTS; FINANCIAL STATEMENTS. Since at least September 30th,
2003, the Company has filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the 1934 Act (all of the foregoing filed prior to the date
hereof and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein being hereinafter
referred to as the "SEC Documents"). The Company has delivered to the Investor
or its representatives, or they have had access through XXXXX to, true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder applicable
to the SEC Documents, and none of the SEC Documents, at the time they were filed
with the SEC, contained any untrue statement of a material fact or omitted 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. As of their respective filing dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied, 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 exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other written information provided by or on behalf of the
Company to the Investor which is not included in the SEC Documents, including,
without limitation, information referred to in Section 4(d) of this Agreement,
contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstance
under which they are or were made, not misleading. Neither the Company nor any
of its Subsidiaries or any of their officers, directors, employees or agents
have provided the Investor with any material, nonpublic information which was
not publicly disclosed prior to the date hereof and any material, nonpublic
information provided to the Investor by the Company or its Subsidiaries or any
of their officers, directors, employees or agents prior to any Closing Date
shall be publicly disclosed by the Company prior to such Closing Date.
(G) ABSENCE OF CERTAIN CHANGES. Except as set forth in the SEC Documents,
the Company does not intend to change the business operations of the Company.
The Company has not taken any steps, and does not currently expect to take any
steps, to seek protection pursuant to any bankruptcy law nor does the Company or
its Subsidiaries have any knowledge or reason to believe that its creditors
intend to initiate involuntary bankruptcy proceedings.
(H) ABSENCE OF LITIGATION. Except as set forth in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the executive officers of Company or any of its
Subsidiaries, threatened against or affecting the Company, the Common Stock or
any of the Company's Subsidiaries or any of the Company's or the Company's
Subsidiaries' officers or directors in their capacities as such, in which an
adverse decision could have a Material Adverse Effect.
(I) ACKNOWLEDGMENT REGARDING INVESTOR'S PURCHASE OF SHARES. The Company
acknowledges and agrees that the Investor is acting solely in the capacity of
arm's length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby and any advice given by the
Investor or any of its respective representatives or agents in connection with
the Transaction Documents and the transactions contemplated hereby and thereby
is merely incidental to the Investor's purchase of the Securities. The Company
further represents to the Investor that the Company's decision to enter into the
Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives.
(J) NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES.
Except as set forth in the SEC Documents and the Schedules attached hereto with
respect to any proposed Executive Stock Compensation Plan or Stock Trading Plan,
since November 24, 2003, no event, liability, development or circumstance has
occurred or exists, or to the Company's knowledge is contemplated to occur, with
respect to the Company or its Subsidiaries or their respective business,
properties, assets, prospects, operations or financial condition, that would be
required to be disclosed by the Company under applicable securities laws on a
registration statement filed with the SEC relating to an issuance and sale by
the Company of its Common Stock and which has not been publicly announced.
(K) EMPLOYEE RELATIONS. Neither the Company nor any of its Subsidiaries is
involved in any union labor dispute nor, to the knowledge of the Company or any
of its Subsidiaries, is any such dispute threatened. Neither the Company nor any
of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that relations with their employees are
good. No executive officer (as defined in Rule 501(f) of the 0000 Xxx) has
notified the Company that such officer intends to leave the Company's employ or
otherwise terminate such officer's employment with the Company.
(L) INTELLECTUAL PROPERTY RIGHTS. The Company and its Subsidiaries own or
possess adequate rights or licenses to use all trademarks, trade names, service
marks, service xxxx registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade
secrets and rights necessary to conduct their respective businesses as now
conducted. Except as set forth the SEC Documents, none of the Company's
trademarks, trade names, service marks, service xxxx registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals,
government authorizations, trade secrets or other intellectual property rights
necessary to conduct its business as now or as proposed to be conducted have
expired or terminated, or are expected to expire or terminate within two years
from the date of this Agreement. The Company and its Subsidiaries do not have
any knowledge of any infringement by the Company or its Subsidiaries of
trademark, trade name rights, patents, patent rights, copyrights, inventions,
licenses, service names, service marks, service xxxx registrations, trade secret
or other similar rights of others, or of any such development of similar or
identical trade secrets or technical information by others and, except as set
forth on the SEC Documents, there is no claim, action or proceeding being made
or brought against, or to the Company's knowledge, being threatened against, the
Company or its Subsidiaries regarding trademark, trade name, patents, patent
rights, invention, copyright, license, service names, service marks, service
xxxx registrations, trade secret or other infringement; and the Company and its
Subsidiaries are unaware of any facts or circumstances which might give rise to
any of the foregoing. The Company and its Subsidiaries have taken commercially
reasonable security measures to protect the secrecy, confidentiality and value
of all of their intellectual properties.
(M) ENVIRONMENTAL LAWS. The Company and its Subsidiaries (I) are, to the
knowledge of management of the Company, in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"); (II)
have, to the knowledge of management of the Company, received all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses; and (III) are in compliance, to the
knowledge of the Company, with all terms and conditions of any such permit,
license or approval where, in each of the three foregoing cases, the failure to
so comply would have, individually or in the aggregate, a Material Adverse
Effect.
(N) TITLE. Except as otherwise provided in the Schedules attached hereto
with respect to certain rights of first refusal granted by the Company, the
Company and its Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them which is material to the business of the Company and its Subsidiaries, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the SEC Documents or such as do not materially affect the value
of such property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its Subsidiaries. Any real property
and facilities held under lease by the Company or any of its Subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its Subsidiaries.
(O) INSURANCE. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company reasonably believes to be
prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been
refused any insurance coverage sought or applied for and neither the Company nor
any such Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect. The Company
does not currently maintain directors and officers insurance coverage for any of
its directors or officers.
(P) REGULATORY PERMITS. The Company and its Subsidiaries have in full
force and effect all certificates, approvals, authorizations and permits from
the appropriate federal, state, local or foreign regulatory authorities and
comparable foreign regulatory agencies, necessary to own, lease or operate their
respective properties and assets and conduct their respective businesses, and
neither the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
approval, authorization or permit, except for such certificates, approvals,
authorizations or permits which if not obtained, or such revocations or
modifications which, would not have a Material Adverse Effect.
(Q) INTERNAL ACCOUNTING CONTROLS. The Company and each of its
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (I) transactions are executed in accordance
with management's general or specific authorizations; (II) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (III) access to assets is permitted only in accordance with
management's general or specific authorization; and (IV) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(R) NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Company nor any of
its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the
judgment of the Company's officers has or is expected in the future to have a
Material Adverse Effect. Except as otherwise provided in the Schedules attached
hereto with respect to certain rights of first refusal granted by the Company,
neither the Company nor any of its Subsidiaries is a party to any contract or
agreement which in the judgment of the Company's officers has or is expected to
have a Material Adverse Effect.
(S) TAX STATUS. The Company and each of its Subsidiaries has made or
filed all United States federal and state income and all other tax returns,
reports and declarations required byany jurisdiction to which it is subject
(unless and only to the extent that the Company and each of its Subsidiaries has
set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and has set aside on its books provision reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such claim.
(T) CERTAIN TRANSACTIONS. Except as set forth in the SEC Documents filed
at least ten days prior to the date hereof and except for arm's length
transactions pursuant to which the Company makes payments in the ordinary course
of business upon terms no less favorable than the Company could obtain from
third parties and other than the grant of stock or stock options disclosed in
the SEC Documents and the Schedules attached hereto with respect to any proposed
Executive Stock Compensation Plan, none of the officers, directors, or employees
of the Company is presently a party to any transaction with the Company or any
of its Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
(U) DILUTIVE EFFECT. The Company understands and acknowledges that the
number of Shares issuable upon purchases pursuant to this Agreement will
increase in certain circumstances including, but not necessarily limited to, the
circumstance wherein the trading price of the Common Stock declines during the
period between the Effective Date and the end of the Open Period. The Company's
executive officers and directors have studied and fully understand the nature of
the transactions contemplated by this Agreement and recognize that they have a
potential dilutive effect. The Board of Directors of the Company has concluded,
in its good faith business judgment, that such issuance is in the best interests
of the Company. The Company specifically acknowledges that, subject to such
limitations as are expressly set forth in the Transaction Documents, its
obligation to issue Shares of Common Stock upon purchases pursuant to this
Agreement is absolute and unconditional regardless of the dilutive effect that
such issuance may have on the ownership interests of other shareholders of the
Company.
(V) RIGHT OF FIRST REFUSAL. The Company shall not, directly or
indirectly, without the prior written consent of Investor offer, sell, grant any
option to purchase, or otherwise dispose of (or announce any offer, sale, grant
or any option to purchase or other disposition) any of its Common Stock or
securities convertible into Common Stock at a price that is less than the market
price of the Common Stock at the time of issuance of such security or investment
(a "Subsequent Financing") for a period of one year after the Effective Date,
except (I) the granting of stock or stock options or warrants to employees,
officers, directors and consultants, and the issuance of Shares upon exercise of
options granted, under any stock or stock option plan heretofore or hereafter
duly adopted by the Company or for services rendered or to be rendered; (II)
Shares issued upon exercise of any currently outstanding warrants or options and
upon conversion of any currently outstanding convertible debenture or
convertible preferred stock, in each case disclosed pursuant to Section 4(c);
(III) securities issued in connection with the capitalization or creation of a
joint venture with a strategic partner; (IV) Shares issued to pay part or all of
the purchase price for the acquisition by the Company of another entity (which,
for purposes of this clause (iv), shall not include an individual or group of
individuals); and (V) Shares issued in a bona fide public offering by the
Company of its securities, unless (A) the Company delivers to Investor a written
notice (the "Subsequent Financing Notice") of its intention to effect such
Subsequent Financing, which Subsequent Financing Notice shall describe in
reasonable detail the proposed terms of such Subsequent Financing, the amount of
proceeds intended to be raised thereunder, the person with whom such Subsequent
Financing shall be effected, and attached to which shall be a term sheet
or similar document relating thereto; and (B) Investor shall not have notified
the Company by 5:00 p.m. (New York time) on the fifth Trading Day after its
receipt of the Subsequent Financing Notice of its willingness to provide,
subject to completion of mutually acceptable documentation, financing to the
Company on substantially the terms set forth in the Subsequent Financing Notice.
If Investor shall fail to notify the Company of its intention to enter into such
negotiations within such time period, then the Company may effect the Subsequent
Financing substantially upon the terms set forth in the Subsequent Financing
Notice; provided that the Company shall provide Investor with a second
Subsequent Financing Notice, and Investor shall again have the right of first
refusal set forth above in this Section, if the Subsequent Financing subject to
the initial Subsequent Financing Notice shall not have been consummated for any
reason on the terms set forth in such Subsequent Financing Notice within thirty
Trading Days after the date of the initial Subsequent Financing Notice. The
rights granted to Investor in this Section are not subject to any prior right of
first refusal given to any other person disclosed on Schedule 4(c).
(W) LOCK-UP. Except to the extent of any proposed Stock Trading Plans
described in the Schedules attached hereto, the Company shall cause its
officers, insiders, directors, affiliates or other related parties to refrain
from selling Common Stock during each Pricing Period.
(X) NO GENERAL SOLICITATION. Neither the Company, nor any of its
affiliates, nor any person acting on its behalf, has engaged in any form of
general solicitation or general advertising (within the meaning of Regulation D)
in connection with the offer or sale of the Common Stock offered hereby.
(Y) NO BROKERS, FINDERS OR FINANCIAL ADVISORY FEES OR COMMISSIONS will be
payable by the Company with respect to the transaction contemplated by this
Agreement other than described in Section 12 (m) of this Agreement.
SECTION 5. COVENANTS OF THE COMPANY
(A) BEST EFFORTS. The Company shall use commercially reasonable efforts
timely to satisfy each of the conditions to be satisfied by it as provided in
Section 7 of this Agreement.
(B) BLUE SKY. The Company shall, at its sole cost and expense, on or
before each of the Closing Dates, take such action as the Company shall
reasonably determine is necessary to qualify the Securities for, or obtain
exemption for the Securities for, sale to the Investor at each of the Closings
pursuant to this Agreement under applicable securities or "Blue Sky" laws of
such states of the United States, as reasonably specified by Investor, and shall
provide evidence of any such action so taken to the Investor on or prior to the
Closing Date.
(C) REPORTING STATUS. Until the earlier to occur of (I) the first date
which is after the date this Agreement is terminated pursuant to Section 9 and
on which the Holders (as that term is defined in the Registration Rights
Agreement) may sell all of the Securities without restriction pursuant to Rule
144(k) promulgated under the 1933 Act (or successor thereto); and (II) the date
on which (A) the Holders shall have sold all the Securities; and (B) this
Agreement has been terminated pursuant to Section 9 (the "Registration Period"),
the Company shall file all reports required to be filed with the SEC pursuant to
the 1934 Act, and the Company shall not terminate its status as a reporting
company under the 1934 Act.
(D) USE OF PROCEEDS. The Company will use the proceeds from the sale of
the Shares (excluding amounts paid by the Company for fees as set forth in the
Transaction Documents) for general corporate and working capital purposes or for
other purposes deemed fit by the Company's Board of Directors.
(E) FINANCIAL INFORMATION. The Company agrees to make available to the
Investor via XXXXX or other electronic means the following to the Investor
during the Registration Period: (I) within five (5) Trading Days after the
filing thereof with the SEC, a copy of its Annual Reports on Form 10-KSB, its
Quarterly Reports on Form 10-QSB, any Current Reports on Form 8-K and any
Registration Statements or amendments filed pursuant to the 1933 Act; (II) on
the same day as the release thereof, facsimile copies of all press releases
issued by the Company or any of its Subsidiaries; (III) copies of any notices
and other information made available or given to the shareholders of the Company
generally, contemporaneously with the making available or giving thereof to the
shareholders; and (IV) within two (2) calendar days of filing or delivery
thereof, copies of all documents filed with, and all correspondence sent to, the
Principal Market, any securities exchange or market, or the National Association
of Securities Dealers, Inc., unless such information is material nonpublic
information.
(F) RESERVATION OF SHARES. Subject to the following sentence, the Company
shall take all action necessary to at all times have authorized, and reserved
for the purpose of issuance, a sufficient number of Shares of Common Stock to
provide for the issuance of the Securities hereunder. In the event that the
Company determines that it does not have a sufficient number of authorized
Shares to reserve and keep available for issuance as described in this Section
5(f), the Company shall use its best efforts to increase the number of
authorized Shares by seeking shareholder approval for the authorization of such
additional shares.
(G) LISTING. The Company shall promptly secure and maintain the listing
of all of the Registrable Securities (as defined in the Registration Rights
Agreement) upon the Principal Market and each other national securities exchange
and automated quotation system, if any, upon which shares of Common Stock are
then listed (subject to official notice of issuance) and shall maintain, such
listing of all Registrable Securities from time to time issuable under the terms
of the Transaction Documents. The Company shall maintain the Common Stock's
authorization for quotation on the Principal Market. Neither the Company nor any
of its Subsidiaries shall take any action which would be reasonably expected to
result in the delisting or suspension of the Common Stock on the Principal
Market (excluding suspensions of not more than one trading day resulting from
business announcements by the Company). The Company shall promptly provide to
the Investor copies of any notices it receives from the Principal Market
regarding the continued eligibility of the Common Stock for listing on such
automated quotation system or securities exchange. The Company shall pay all
fees and expenses in connection with satisfying its obligations under this
Section 5(g).
(I) FILING OF FORM 8-K. On or before the date which is three Trading Days
after the Execution Date, the Company shall file a Current Report on Form 8-K
with the SEC describing the terms of the transaction contemplated by the
Transaction Documents in the form required by the 1934 Act, if such filing is
required.
(J) CORPORATE EXISTENCE. The Company shall use its best efforts to
preserve and continue the corporate existence of the Company.
(K) NOTICE OF CERTAIN EVENTS AFFECTING REGISTRATION; SUSPENSION OF RIGHT
TO MAKE A PUT. The Company shall promptly notify Investor upon the occurrence of
any of the following events in respect of a Registration Statement or related
prospectus in respect of an offering of the Securities and shall not deliver any
Put Notice during the continuation of any of the following events: (I) receipt
of any request for additional information by the SEC or any other federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to the Registration
Statement or related prospectus; (II) the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any proceedings
for that purpose; (III) receipt of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; (IV) the happening of any event that makes any
statement made in such Registration Statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in the
Registration Statement, related prospectus or documents so that, in the case of
a Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the related prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (V) the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate, and the Company shall promptly make available to Investor
any such supplement or amendment to the related prospectus. The Company shall
not deliver to Investor any Put Notice during the continuation of any of the
foregoing events.
(L) REIMBURSEMENT. If (I) Investor becomes involved in any capacity in any
action, proceeding or investigation brought by any shareholder of the Company,
in connection with or as a result of the consummation of the transactions
contemplated by the Transaction Documents, or if Investor is impleaded in any
such action, proceeding or investigation by any person (other than as a result
of a breach of the Investor's representations and warranties set forth in this
Agreement); or (II) Investor becomes involved in any capacity in any action,
proceeding or investigation brought by the SEC against or involving the Company
or in connection with or as a result of the consummation of the transactions
contemplated by the Transaction Documents (other than as a result of a breach of
the Investor's representations and warranties set forth in this Agreement), or
if Investor is impleaded in any such action, proceeding or investigation by any
person, then in any such case, the Company will reimburse Investor for its
reasonable legal and other expenses (including the cost of any investigation and
preparation) incurred in connection therewith, as such expenses are incurred. In
addition, other than with respect to any matter in which Investor is a named
party, the Company will pay to Investor the charges, as reasonably determined by
Investor, for the time of any officers or employees of Investor devoted to
appearing and preparing to appear as witnesses, assisting in preparation for
hearings, trials or pretrial matters, or otherwise with respect to inquiries,
hearing, trials, and other proceedings relating to the subject matter of this
Agreement. The reimbursement obligations of the Company under this section shall
be in addition to any liability which the Company may otherwise have, shall
extend upon the same terms and conditions to any affiliates of Investor that are
actually named in such action, proceeding or investigation, and partners,
directors, agents, employees, attorneys, accountants, auditors and controlling
persons (if any), as the case may be, of Investor and any such affiliate, and
shall be binding upon and inure to the benefit of any successors of the Company,
Investor and any such affiliate and any such person.
SECTION 6. COVER. If the number of Shares represented by any Put Notices
become restricted or are no longer freely trading for any reason, and after the
applicable Closing Date, the Investor purchases, in an open market transaction
or otherwise, the Company's Common Stock (the "Covering Shares") in order to
make delivery in satisfaction of a sale of Common Stock by the Investor (the
"Sold Shares"), which delivery such Investor anticipated to make using the
Shares represented by the Put Notice (a "Buy-In"), the Company shall pay to the
Investor the Buy-In Adjustment Amount (as defined below). The "Buy-In
Adjustment Amount" is the amount equal to the excess, if any, of (A) the
Investor's total purchase price (including brokerage commissions, if any) for
the Covering Shares over (B) the net proceeds (after brokerage commissions, if
any) received by the Investor from the sale of the Sold Shares. The Company
shall pay the Buy-In Adjustment Amount to the Investor in immediately available
funds immediately upon demand by the Investor. By way of illustration and not
in limitation of the foregoing, if the Investor purchases Common Stock having a
total purchase price (including brokerage commissions) of $11,000 to cover a
Buy-In with respect to the Common Stock it sold for net proceeds of $10,000, the
Buy-In Adjustment Amount which the Company will be required to pay to the
Investor will be $1,000.
SECTION 7. CONDITIONS OF THE COMPANY'S OBLIGATION TO SELL.
The obligation hereunder of the Company to issue and sell the Securities to
the Investor is further subject to the satisfaction, at or before each Closing
Date, of each of the following conditions set forth below. These conditions are
for the Company's sole benefit and may be waived by the Company at any time in
its sole discretion.
(A) The Investor shall have executed each of this Agreement and the
Registration Rights Agreement and delivered the same to the Company.
(B) The Investor shall have delivered to the Company the Purchase Price
for the Securities being purchased by the Investor at the Closing (after receipt
of confirmation of delivery of such Securities) by wire transfer of immediately
available funds pursuant to the wire instructions provided by the Company.
(C) Reserved.
(D) 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.
(E) No Valuation Event shall have occurred since the applicable Put Notice
Date.
SECTION 8. FURTHER CONDITIONS OF THE INVESTOR'S OBLIGATION TO PURCHASE.
The obligation of the Investor hereunder to purchase Securities is subject
to the satisfaction, on or before each Closing Date, of each of the following
conditions set forth below.
(A) The Company shall have executed each of the Transaction Documents and
delivered the same to the Investor.
(B) The Common Stock shall be authorized for quotation on the Principal
Market and trading in the Common Stock shall not have been suspended by the
Principal Market or the SEC, at any time beginning on the date hereof and
through and including the respective Closing Date (excluding suspensions of not
more than one Trading Day resulting from business announcements by the Company,
provided that such suspensions occur prior to the Company's delivery of the Put
Notice related to such Closing).
(C) The representations and warranties of the Company shall be true and
correct as of the date when made and as of the applicable Closing Date as though
made at that time (except for (I) representations and warranties that speak as
of a specific date and (II) with respect to the representations made in Sections
4(g), (h) and (j) and the third sentence of Section 4(k) hereof, events which
occur on or after the date of this Agreement and are disclosed in SEC filings
made by the Company at least ten Trading Days prior to the applicable Put Notice
Date) and the Company shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company on or before such Closing
Date. The Investor may request an update as of such Closing Date regarding the
representation contained in Section 4(c) above.
(D) The Company shall have executed and delivered to the Investor the
certificates representing, or have executed electronic book-entry transfer of,
the Securities (in such denominations as such Investor shall request) being
purchased by the Investor at such Closing.
(E) The Board of Directors of the Company shall have adopted resolutions
consistent with Section 4(b)(ii) above (the "Resolutions") and such Resolutions
shall not have been amended or rescinded prior to such Closing Date.
(F) reserved.
(G) 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.
(H) The Registration Statement shall be effective on each Closing Date and
no stop order suspending the effectiveness of the Registration statement shall
be in effect or shall be pending or threatened. Furthermore, on each Closing
Date (I) neither the Company nor Investor shall have received notice that the
SEC has issued or intends to issue a stop order with respect to such
Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of such Registration Statement, either temporarily or permanently,
or intends or has threatened to do so (unless the SEC's concerns have been
addressed and Investor is reasonably satisfied that the SEC no longer is
considering or intends to take such action), and (II) no other suspension of the
use or withdrawal of the effectiveness of such Registration Statement or related
prospectus shall exist.
(I) At the time of each Closing, the Registration Statement (including
information or documents incorporated by reference therein) and any amendments
or supplements thereto shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or which would require public
disclosure or an update supplement to the prospectus.
(J) If applicable, the shareholders of the Company shall have approved the
issuance of any Shares in excess of the Maximum Common Stock Issuance in
accordance with Section 2(i).
(K) The conditions to such Closing set forth in Section 2(f) shall have
been satisfied on or before such Closing Date.
(L) The Company shall have certified to the Investor the number of Shares
of Common Stock outstanding when a Put Notice is given to the Investor.
SECTION 9. TERMINATION. This Agreement shall terminate upon any of the
following events:
(I) when the Investor has purchased an aggregate of Ten Million Dollars
($10,000,000) in the Common Stock of the Company pursuant to this Agreement;
provided that the Company's representations, warranties and covenants contained
in this Agreement insofar as applicable to the transactions consummated
hereunder prior to such termination, shall survive the termination of this
Agreement for the period of any applicable statute of limitations;
(II) on the date which is thirty-six (36) months after the Effective Date;
(III) if the Company shall file or consent by answer or otherwise to the
entry of an order for relief or approving a petition for relief, reorganization
or arrangement or any other petition in bankruptcy for liquidation or to take
advantage of any bankruptcy or insolvency law of any jurisdiction, or shall make
an assignment for the benefit of its creditors, or shall consent to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property, or shall be
adjudicated a bankrupt or insolvent, or shall take corporate action for the
purpose of any of the foregoing, or if a court or governmental authority of
competent jurisdiction shall enter an order appointing a custodian, receiver,
trustee or other officer with similar powers with respect to the Company or any
substantial part of its property or an order for relief or approving a petition
for relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law, or an
order for the dissolution, winding up or liquidation of the Company, or if any
such petition shall be filed against the Company;
(IV) if the Company shall issue or sell any equity securities or
securities convertible into, or exchangeable for, equity securities or enter
into any other equity financing facility during the Open Period, other than in
compliance with Section 4(v);
SECTION 10. SUSPENSION. This Agreement shall be suspended upon any of the
following events, and shall remain suspended until such event is rectified:
(I) the trading of the Common Stock is suspended by the SEC, the Principal
Market or the NASD for a period of five consecutive Trading Days during the Open
Period;
(II) except as relating to any proposed Executive Stock Compensation
Plan as described in the Schedules attached hereto, the Company shall not have
filed with the SEC the initial Registration Statement with respect to the resale
of the Registrable Securities in accordance with the terms of the initial
Registration Rights Agreement within 60 calendar days of the date hereof or the
Registration Statement has not been declared effective within 180 calendar days
of the date hereof; or
(III) The Common Stock ceases to be registered under the 1934 Act or
listed or traded on the Principal Market. Upon the occurrence of one of the
above-described events, the Company shall send written notice of such event to
the Investor.
SECTION 11. INDEMNIFICATION. In consideration of the parties mutual
obligations set forth in the Transaction Documents, each of the parties (in such
capacity, an "Indemnitor") shall defend, protect, indemnify and hold harmless
the other and all of the other party's shareholders, officers, directors,
employees, counsel, and direct or indirect investors and any of the foregoing
person's agents or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against any and all actions, causes
of action, suits, claims, losses, costs, penalties, fees, liabilities and
damages, and expenses in connection therewith (irrespective of whether any such
Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys' fees and disbursements (the
"Indemnified Liabilities"), incurred by any Indemnitee as a result of, or
arising out of, or relating to (I) any misrepresentation or breach of any
representation or warranty made by the Indemnitor or any other certificate,
instrument or document contemplated hereby or thereby; (II) any breach of any
covenant, agreement or obligation of the Indemnitor contained in the Transaction
Documents or any other certificate, instrument or document contemplated hereby
or thereby; or (III) any cause of action, suit or claim brought or made against
such Indemnitee by a third party and arising out of or resulting from the
execution, delivery, performance or enforcement of the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby,
except insofar as any such misrepresentation, breach or any untrue statement,
alleged untrue statement, omission or alleged omission is made in reliance upon
and in conformity with written information furnished to Indemnitor which is
specifically intended for use in the preparation of any such Registration
Statement, preliminary prospectus, prospectus or amendments to the prospectus.
To the extent that the foregoing undertaking by the Indenitor may be
unenforceable for any reason, the Indemnitor shall make the maximum contribution
to the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The indemnity provisions contained herein
shall be in addition to any cause of action or similar rights Indemnitor may
have, and any liabilities the Indemnitor or the Indemnitees may be subject to.
SECTION 12. GOVERNING LAW; MISCELLANEOUS.
(A) GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts without regard to
the principles of conflict of laws. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City of
Boston, County of Suffolk, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(B) LEGAL FEES; AND MISCELLANEOUS FEES. Except as otherwise set forth in
the Transaction Documents, the Company shall pay the fees and expenses of its
advisers, counsel, the accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. Any attorneys' fees and
expenses incurred by either the Company or by the Investor in connection with
the preparation, negotiation, execution and delivery of any amendments to this
Agreement or relating to the enforcement of the rights of any party, after the
occurrence of any breach of the terms of this Agreement by another party or any
default by another party in respect of the transactions contemplated hereunder,
shall be paid on demand by the party which breached the Agreement and/or
defaulted, as the case may be. The Company shall pay all stamp and other taxes
and duties levied in connection with the issuance of any Securities.
(C) COUNTERPARTS. This Agreement may be executed in two (2) or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(D) HEADINGS; SINGULAR/PLURAL. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. Whenever required by the context of this
Agreement, the singular shall include the plural and masculine shall include the
feminine.
(E) SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(F) ENTIRE AGREEMENT; AMENDMENTS. This Agreement supersedes all other
prior oral or written agreements between the Investor, the Company, their
affiliates and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
(including the other Transaction Documents) contain the entire understanding of
the parties with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor the
Investor makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be amended other
than by an instrument in writing signed by the Company and the Investor, and no
provision hereof may be waived other than by an instrument in writing signed by
the party against whom enforcement is sought.
(G) NOTICES. Any notices or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered (I) upon receipt, when delivered personally; (II) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (III) one (1) day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall be:
If to the Company:
Payment Data Systems, Inc.
00000 Xxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Investor:
Dutchess Private Equities fund, LP
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each party shall provide five days' prior written notice to the other party
of any change in address or facsimile number.
(H) NO ASSIGNMENT. This Agreement may not be assigned.
(I) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
(J) SURVIVAL. The representations and warranties of the Company and the
Investor contained in Sections 2 and 3, the agreements and covenants set forth
in Sections 4 and 5, and the indemnification provisions set forth in Section 11,
shall survive each of the Closings and the termination of this Agreement.
(K) PUBLICITY. The Company and Investor shall consult with each other in
issuing any press releases or otherwise making public statements with respect to
the transactions contemplated hereby and no party shall issue any such press
release or otherwise make any such public statement without the prior written
consent of the other parties, which consent shall not be unreasonably withheld
or delayed, except that no prior consent shall be required if such disclosure is
required by law, in which such case the disclosing party shall provide the other
parties with prior notice of such public statement. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of Investor without
the prior written consent of such Investor, except to the extent required by
law. Investor acknowledges that this Agreement and all or part of the
Transaction Documents may be deemed to be "material contracts" as that term is
defined by Item 601(b)(10) of Regulation S-B, and that the Company may therefore
be required to file such documents as exhibits to reports or registration
statements filed under the 1933 Act or the 1934 Act. Investor further agrees
that the status of such documents and materials as material contracts shall be
determined solely by the Company, in consultation with its counsel.
(L) FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(M) PLACEMENT AGENT. The Company agrees to pay Charleston Capital
Corporation, ("Charleston") a registered broker dealer, 1% (one percent) of the
Put Amount on each draw during the term of the Transaction Documents, the
aggregate of all such fees paid during the term of the Transaction Documents
will not exceed$10,000. Charleston Capital Corporation will also act as an
unaffiliated broker dealer. The Investor shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other persons
or entities for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by the Transaction Documents. The
Company shall indemnify and hold harmless the Investor, their employees,
officers, directors, agents, and partners, and their respective affiliates, from
and against all claims, losses, damages, costs (including the costs of
preparation and attorney's fees) and expenses incurred in respect of any such
claimed or existing fees, as such fees and expenses are incurred.
(N) NO STRICT CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
(O) REMEDIES. The Investor and each holder of the Shares shall have all
rights and remedies set forth in this Agreement and the Registration Rights
Agreement and all rights and remedies which such holders have been granted at
any time under any other agreement or contract and all of the rights which such
holders have under any law. Any person having any rights under any provision of
this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages by reason of any default
or breach of any provision of this Agreement, including the recovery of
reasonable attorneys fees and costs, and to exercise all other rights granted by
law.
(P) PAYMENT SET ASIDE. To the extent that the Company makes a payment or
payments to the Investor hereunder or the Registration Rights Agreement or the
Investor enforces or exercises its rights hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Company, a trustee, receiver or any other person
under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent of any
such restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
(Q) PRICING OF COMMON STOCK. For purposes of this Agreement, the bid
price of the Common Stock in this Agreement shall be as reported on
Xxxxxxxxx.xxx.
* * *
SIGNATURE PAGE OF INVESTMENT AGREEMENT
The signature of the authorized representative of the on this Signature
Page evidences the Company's agreement to be bound by the terms and conditions
of the Investment Agreement and the Registration Rights Agreement as of the date
first written above.
The undersigned signatory hereby certifies that he has read and understands
the Investment Agreement, and the representations made by the Company in this
Investment Agreement are true and accurate, and on behalf of the Company, agrees
to be bound by its terms.
DUTCHESS PRIVATE EQUITIES FUND, L.P.
BY ITS GENERAL PARTNER,
DUTCHESS CAPITAL MANAGEMENT, LLC
By:____________________________
Xxxxxxx X. Xxxxxxxx, Managing Member
PAYMENT DATA SYSTEMS, INC.
By__________________________________
Xxxxxxx Xxxx, Chief Executive Officer
LIST OF EXHIBITS
-----------------
EXHIBIT A Registration Rights Agreement
EXHIBIT B Opinion of Company's Counsel
EXHIBIT C [reserved]
EXHIBIT D Broker Representation Letter
EXHIBIT E Board Resolution
EXHIBIT F Put Notice
EXHIBIT G Put Settlement Sheet
LIST OF SCHEDULES
-----------------
Schedule 4(a) Subsidiaries
Schedule 4(c) Capitalization
Schedule 4(e) Conflicts
Schedule 4(g) Material Changes
Schedule 4(h) Litigation
Schedule 4(l) Intellectual Property
Schedule 4(n) Liens
Schedule 4(t) Certain Transactions
EXHIBIT A
EXHIBIT B
EXHIBIT D
[BROKER'S LETTERHEAD]
Date
Via Facsimile
Attention:
______________________
______________________
______________________
Re: Payment Data Systems, Inc.
Dear __________________:
It is our understanding that the Form______ Registration Statement bearing SEC
File Number ( ___-______) filed by Payment Data Systems, Inc.on Form _____ on
__________, 2004 was declared effective on _________, 2004.
This letter shall confirm that ______________ shares of the common stock of
Payment Data Systems, Inc. are being sold on behalf of __________________ and
that we shall comply with the prospectus delivery requirements set forth in that
Registration Statement by filing the same with the purchaser.
If you have any questions please do not hesitate to call.
Sincerely,
______________________
cc:
EXHIBIT E
EXHIBIT F
Date:
RE: Put Notice Number __
Dear Xx. Xxxxxxxx,
This is to inform you that as of today, Payment Data Systems, Inc., a Nevada
corporation (the "Company"), hereby elects to exercise its right pursuant to the
Investment Agreement to require Dutchess Private Equities Fund, LP. to purchase
shares of its common stock. The Company hereby certifies that:
The amount of this put is $__________.
The Pricing Period runs from ________ until _______.
The current number of shares issued and outstanding as of the Company are:
____________________
Regards,
________________________
Xxxxxxx Xxxx
Payment Data Systems, Inc.
EXHIBIT G
PUT SETTLEMENT SHEET
Date:
Xxxxxxx,
Pursuant to the Put given by Payment Data Systems, Inc. to Dutchess Private
Equities Fund, L.P. on _________________ 200x, we are now submitting the amount
of common shares for you to issue to Dutchess.
Please have a certificate baring no restrictive legend totaling __________
shares issued to Dutchess Private Equities Fund, LP immediately and send via
DWAC to the following account:
XXXXXX
If not DWAC eligible, please send Fedex Priority Overnight to:
XXXXXX
Once these shares are received by us, we will break have the funds wired to the
Company.
Regards,
Xxxxxxx X. Xxxxxxxx
DATE PRICE
Date of Day 1 Closing Bid of Day 1
Date of Day 2 Closing Bid of Day 2
Date of Day 3 Closing Bid of Day 3
Date of Day 4 Closing Bid of Day 4
Date of Day 5 Closing Bid of Day 5
LOWEST 1 (ONE) CLOSING BID IN PRICING PERIOD
PUT AMOUNT
AMOUNT WIRED TO COMPANY
PURCHASE PRICE (95% (NINETY-FIVE PERCENT))
AMOUNT OF SHARES DUE
The undersigned has completed this Put as of this ___th day of _________, 20xx.
Payment Data Systems, Inc.
________________________________
Xxxxxxx Xxxx, CEO
SCHEDULE 4(a) SUBSIDIARIES
XXXXX.XXX, INC.
BILLSERV.COM-CANADA, INC. (INACTIVE)
SCHEDULE 4(c) CAPITALIZATION
200,000,000 shares of Common Stock, $0.001 par value per share, 20, 722,656
shares issued and outstanding
10,000,000 shares of Preferred Stock, $0.01 par value per share, no shares
issued or outstanding
5,000,000 shares of Common Stock registered pursuant to Amended and Restated
1999 Employee Comprehensive Stock Plan under S-8 Registration Statement bearing
SEC File Numbers 333-30962 and 333-82530
800,000 shares of Common Stock reserved pursuant to 1999 Non-Employee Director
Plan; 500,000 shares of Common Stock registered under S-8 Registration Statement
bearing SEC File Number 333-30960
1,000,000 shares of Common Stock registered pursuant to Employee Stock Purchase
Plan under S-8 Registration Statement bearing SEC File Number 333-30960
SCHEDULE 4(e) CONFLICTS
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
SCHEDULE 4(g) MATERIAL CHANGES
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
SCHEDULE 4(h) LITIGATION
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
SCHEDULE 4(l) INTELLECTUAL PROPERTY
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
SCHEDULE 4(n) LIENS
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
SCHEDULE 4(t) CERTAIN TRANSACTIONS
Please See Payment Data Systems, Inc. Scheduled Disclosures and Attached
Documentation.
PAYMENT DATA SYSTEMS, INC. SCHEDULED DISCLOSURES
LITIGATION
On July 25, 2003, certain stockholders of the Company (such stockholders being
Xxxx Xxxxxxxx, Xx., Xxxx and Xxxxxxxx XxXxxxx, Xxxxxxx and Xxxx Xxxxxxxx, Xxxxx
and Xxxxx Xxxxx, Xxxx X. Xxxxxxxx, III, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx,
Xxxx Xxxxxxxxx-Xxxxxxx, Xxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx,
Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxx and XxXxxx Xxxxxxx, Xxx and Xxxxxxxx Xxxxxx, G.
Xxxxx Xxxxxx, Xx., Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx X.
Xxxxxxxxx, Xx. Xxxx Diephold, Xxxxxx Xxxxxxx, Xx., and Xxxxxxx Xxxxxxx
(collectively, the "Plaintiffs")) commenced legal action against the Company,
Ernst & Young, LLP and certain of the Company's current and former directors
(such directors being Xxxxx X. Xxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxx, Xxxxx
Xxxxxxxxxxx, E. Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx, and Xxxxx X. Xxxxxx
(the "Defendant Directors")) in the District Court of the 45th Judicial
District, Bexar County, Texas (the "Suit"). The Plaintiffs allege, as the Suit
pertains to the Company, that the Company, acting through the Defendant
Directors, materially misrepresented in the Company's 2000 and 2001 Form 10-Ks
the Company's ability to use for operational purposes certain Company funds
pledged as security for margin loans of three Company officers. The Plaintiffs
seek economic and exemplary damages, rescission, interest, attorneys' fees, and
costs of court. The Company believes the Suit to be without merit, and intends
to vigorously defend itself and the Defendant Directors.
EXECUTIVE STOCK COMPENSATION PLAN
The Company intends to implement an executive stock compensation plan which will
permit the Company to compensate its executive officers with common stock or
options therefor in lieu of cash (the "Executive Stock Plan"). In furtherance
of the Executive Stock Plan, the Company intends to register approximately
12,500,000 shares of its common stock, par value $0.001 per share, with the
Securities and Exchange Commission in a registration statement filed on Form
S-8. Pursuant to the Executive Stock Plan, issuances of stock or options for
stock will be made to executives in conformity with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended, as well as all other applicable rules and
laws.
STOCK TRADING PLANS
Certain officers and employees of the Company may, from time to time, enter into
and terminate stock trading plans, which plans provide for written,
contractually enforceable, programs for trading securities of the Company
("Trading Plans"). Trading Plans will be designed to gain the protections of
the affirmative defenses of Rule 10b5-1 of the Securities Exchange Act of 1934,
as amended. Trading Plans also may be designed to exempt participating officers
and employees from the Company's voluntary xxxxxxx xxxxxxx policies, as well as
Regulation BTR.
CHECK FREE
On June 2, 2000, the Company entered into an extended xxxxxx service provider
agreement ("Master Agreement"), which is attached hereto for reference, with
CheckFree Investment Corporation, CheckFree Services Corporation, and CheckFree
Holdings Corporation ("CheckFree"). As part of the Master Agreement, CheckFree
purchased 879,121 shares of the Company's common stock at $11.375 per share
("Initial Purchase"). Additionally, the Company issued CheckFree warrants to
purchase 2,179,121 shares of common stock at $11.375 per share ("Additional
Warrants"). CheckFree has the ability to earn incentive warrants to purchase up
to 2,801,903 shares of common stock, 1,000,000 of which are exercisable at
$11.375 per share and 1,801,903 of which are exercisable at $14.219 per share
("Incentive Warrants"). Additional Warrants vested on the date of the Initial
Purchase and remain exercisable for a period of ten years from that date.
Incentive Warrants vest upon the ascertainment of certain target levels of
referred billers, such vesting to occur, if at all, on the first through the
fifth anniversaries of June 2, 2000. Incentive Warrants remain exercisable for
a period of ten years after vesting. Pursuant to a "change in control"
provision of the Warrant Agreement between the Company and CheckFree dated June
2, 2000, which is attached hereto for reference, one-half of the Incentive
Warrants vested immediately prior to the sale of substantially all of the assets
of the Company on July 25, 2003. As of January 31, 2004, no other Incentive
Warrants have vested. The Company has registered 1,758,242 shares of common
stock with the Securities and Exchange Commission for distribution by CheckFree.
Pursuant to the Registration Rights Agreement between the Company and CheckFree
dated June 2, 2000, which is attached hereto for reference, CheckFree has a
right to demand, subject to certain limitations, that (1) common stock issued to
it under the Master Agreement be registered for public resale; (2) common stock
issued to it under the Master Agreement be offered through an underwriting; (3)
common stock issued to it under the Master Agreement be registered under any
registration statement filed by the Company to effect a public offering of
securities of the Company; and (4) common stock issued to it under the Master
Agreement be registered for public resale pursuant to a shelf registration on
Form S-3. So long as the Registration Rights Agreement is in effect, the
Company may not enter into another agreement with any other person which would
reduce the amount of common stock of CheckFree registerable under any
registration statement or permit any person to make a demand registration which
could result in such registration being declared effective during or within 120
days of the effectiveness of any demand registration under the Registration
Rights Agreement. The Company will have no obligation to register common stock
issued to CheckFree after the fifth anniversary of the date of the Initial
Purchase, subject to certain limitations.
If the Company intends to sell or offer for sale any equity security, debt
security, or convertible security, whether through a private placement or other
private transaction, at a price below the most recent closing price for the
Company's common stock on the last trading day before the Company's notice to
CheckFree of such proposed sale, then the Company shall first offer to sell such
securities to CheckFree on the same terms and conditions as the proposed sale.
If CheckFree fails to purchase such securities, in whole or in part, within five
days of its notice of such proposed sale, then the Company may sell such balance
to the offering third-party, provided that the sale price is not less than 95%
of the sales price listed in the Company's notice to CheckFree and the sale is
completed within 30 days of the date of the Company's notice to CheckFree.
NETWORK 1
On October 7, 2003, the Company and Network 1 Financial, Inc. ("Network 1"),
entered into an Affiliate Office Agreement ("Affiliate Agreement"), which is
attached hereto for reference. Pursuant to the terms of the Affiliate
Agreement, if the Company receives (1) a Bona Fide Offer, as such term is
defined in the Affiliate Agreement, from a third-party to purchase the revenues
due the Company under the Affiliate Agreement through an asset purchase or
merger or (2) a Bona Fide Offer to acquire or merge with or into the Company,
then the Company shall provide Network 1 the exclusive right of first refusal,
for a period of fifteen days from the date of Network 1's receipt of notice of
such Bona Fide Offer, to (1) purchase all or part of the revenue due the Company
under the Affiliate Agreement or (2) acquire the Company under the same terms
and conditions as the Bona Fide Offer. The Network 1 right of first refusal is
subordinate to the CheckFree right of first refusal.
STOCK RIGHTS DIVIDEND
On October 4, 2000, the Company's board of directors declared a dividend of one
right, allocated to each outstanding share, to purchase from the Company one
share of common stock at a purchase price of $14.00. Holders of record of
common stock of the Company on October 4, 2000 are entitled to this rights
dividend. The rights dividends expire at the close of business on October 4,
2004. The common stock underlying the rights dividend was registered on a Form
8-A on October 12, 2000.
OUTSTANDING RIGHTS TO ISSUABLE STOCK
- 34,725 shares of common stock to Comp-Utility Corporation pursuant to
Common Stock Purchase Agreement
- 55,000 shares of common stock to Xxxxx Xxxxx pursuant to Amended and
Restated 1999 Employee Comprehensive Stock Plan
- At January 31, 2004, the outstanding options to purchase common stock are
as follows:
3,981,767 shares of common stock pursuant to Amended and Restated 1999
Employee Comprehensive Stock Plan
533,003 shares of common stock pursuant to 1999 Non-Employee Director Plan
- At January 31, 2004, the outstanding vested warrants to purchase common
stock are as follows:
Shares of Common Exercise Expiration
Holder. . . . . . Stock Price Date Holder
----------------- ---------------- --------- ---------- -----------------
Private Placement 41,237 $ 6.06 08/05/2004 Private Placement
Placement Agent . 250 3.25 10/14/2004 Placement Agent
Placement Agent . 280 8.00 12/15/2004 Placement Agent
Placement Agent . 8,890 7.41 12/20/2004 Placement Agent
Placement Agent . 3,500 7.31 12/22/2004 Placement Agent
Private Placement 2,000,000 1.80 11/27/2006 Private Placement
CheckFree . . . . 2,679,121 11.38 06/02/2010 CheckFree
CheckFree . . . . 900,952 14.22 06/02/2010 CheckFree
5,634,230
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