PURCHASE AGREEMENT
Exhibit 10.4
THIS
PURCHASE AGREEMENT (this “Agreement”)
is
made as of the 12th day of May, 2008 by and among Global Services Partners
Acquisition Corp., a Delaware corporation (together with its successors and
assigns, “GSPAC”),
SouthPeak Interactive L.L.C., a Virginia limited liability company
(“SouthPeak”),
and
the Investors set forth on the signature pages affixed hereto on and after
the
date hereof (each an “Investor” and collectively the “Investors”).
Recitals
A.
GSPAC,
SouthPeak and the Investors are executing and delivering this Agreement in
reliance upon the exemption from securities registration afforded by the
provisions of Regulation D (“Regulation
D”),
as
promulgated by the U.S. Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended; and
B.
The
Investors wish to purchase from GSPAC, and GSPAC wishes to sell and issue to
the
Investors, upon the terms and conditions stated in this Agreement up to
15,000,000 shares (the “Shares”)
of
GSPAC’s Series A Convertible Preferred Stock, par value $0.0001 per share (the
“Preferred
Stock”),
at a
purchase price of $1.00 per share; and
C.
Contemporaneous
with the sale of the Shares, the parties hereto will execute and deliver a
Registration Rights Agreement, in the form attached hereto as Exhibit
A
(the
“Registration
Rights Agreement”),
pursuant to which GSPAC will agree to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and applicable state securities laws.
In
consideration of the mutual promises made herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1.
Definitions.
In
addition to those terms defined above and elsewhere in this Agreement, for
the
purposes of this Agreement, the following terms shall have the meanings set
forth below:
“Acquisition”
means
the transaction contemplated under the Acquisition Agreement.
“Acquisition
Agreement”
means
the definitive agreement contemplated under that certain Agreement entered
into
on or about the date of this Agreement, by and among GSPAC, SouthPeak
and
the
Members of SouthPeak under which GSPAC shall have acquired all of the membership
interests in SouthPeak.
“Affiliate”
means,
with respect to any Person, any other Person which, directly or indirectly
through one or more intermediaries, Controls, is controlled by, or is under
common control with, such Person.
“Business
Day”
means
a
day, other than a Saturday or Sunday, on which banks in New York City are open
for the general transaction of business.
“Common
Stock”
means
the common stock of GSPAC, par value $.0001 per share.
“Confidential
Information”
means
trade secrets, confidential information and know-how (including but not limited
to ideas, formulae, compositions, processes, procedures and techniques, research
and development information, computer program code, performance specifications,
support documentation, drawings, specifications, designs, business and marketing
plans, and customer and supplier lists and related information).
“Control”
(including the terms “controlling”, “controlled by” or “under common control
with”) means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Disclosure
Schedule”
means
the document attached hereto as Schedule 1 which (i) contains matters required
to be disclosed pursuant to Sections
4
and
5
hereof
that correspond to the numbered sections contained in such sections and (ii)
lists exceptions to the representations and warranties that correspond to the
numbered sections contained in Sections
4 and
5.
“Effective
Date”
means
the date on which the initial Registration Statement is declared effective
by
the SEC.
“Effectiveness
Deadline”
means
the date on which the initial Registration Statement is required to be declared
effective by the SEC under the terms of the Registration Rights Agreement.
“Financial
Statements”
means
as to SouthPeak (i) the audited balance sheets and statements of income as
of
the end of and for the fiscal years ended June 30, 2006 and 2007 and (ii) the
unaudited balance sheet and the unaudited statements of income and cash flows
for the six months ended December 31, 2007 and as to GSPAC means (i) the audited
balance sheets and statements of income as of the end of and for the fiscal
years ended July 31, 2006 and 2007 and (ii) the unaudited balance sheet and
the
unaudited statements of income and cash flows for the six months ended January
31, 2008.
“GSPAC’s
Knowledge”
means
that which is known, or should be known, by those Persons serving as of the
date
hereof as the executive officers (as defined in Rule 405 under the 0000 Xxx)
of
GSPAC, after due inquiry.
“Intellectual
Property”
means
all of the following: (i) patents, patent applications, patent disclosures
and
inventions (whether or not patentable and whether or not reduced to practice);
(ii) trademarks, service marks, trade dress, trade names, corporate names,
logos, slogans and Internet domain names, together with all goodwill associated
with each of the foregoing; (iii) copyrights and copyrightable works; (iv)
registrations, applications and renewals for any of the foregoing; (v)
proprietary computer software (including but not limited to data, data bases
and
documentation); and (vi) licenses for the foregoing including, but not limited
to, licenses for software developed by third parties for the use or benefit
of
SouthPeak.
2
“Material
Adverse Effect”
means
a
material adverse effect on (i) the assets, liabilities, results of operations,
condition (financial or otherwise), business, or prospects of an entity or
its
Subsidiaries taken as a whole, (ii) the ability of an entity to perform any
of
its obligations under the Transaction Documents or (iii) the legality, validity
or enforceability of the transactions contemplated hereby.
“Person”
means
an individual, corporation, partnership, limited liability company, trust,
business trust, association, joint stock company, joint venture, sole
proprietorship, unincorporated organization, governmental authority or any
other
form of entity not specifically listed herein.
“Purchase
Price”
means
$1.00.
“Registration
Statement”
has
the
meaning set forth in the Registration Rights Agreement.
“SEC
Filings”
has
the
meaning set forth in Section
4.6.
“SouthPeak’s
Knowledge”
means
that which is known, or should be known, by those Persons serving as of the
date
hereof as the executive officers (as defined in Rule 405 under the 0000 Xxx)
of
SouthPeak, after due inquiry.
“Subsidiary”
of
any
Person means another Person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if
there
are no such voting interests, 50% or more of the equity interests of which)
is
owned directly or indirectly by such first Person.
“Transaction
Documents”
means
this Agreement, the Acquisition Agreement and the Registration Rights Agreement.
“1933
Act”
means
the Securities Act of 1933, as amended, or any successor statute, and the rules
and regulations promulgated thereunder.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor statute,
and
the rules and regulations promulgated thereunder.
2.
Purchase
and Sale of the Shares.
Subject
to the terms and conditions of this Agreement, each of the Investors shall
severally, and not jointly, purchase, and GSPAC shall sell and issue to the
Investors, the Shares in the respective amounts set forth opposite each
Investor’s name on the signature pages attached hereto from time to time in
exchange for the Purchase Price as specified in Section
3
below.
3.
Closing.
Upon
confirmation that the other conditions to closing specified herein have been
satisfied or duly waived by an Investor, GSPAC shall deliver to Xxxxxx Xxxxxxxx
Frome Xxxxxxxxxx & Xxxxxxx LLP, in trust, a certificate or certificates,
registered in such name or names as each Investor may designate, representing
the Shares, with instructions that such certificates are to be held for release
to the Investor only upon payment in full of the Purchase Price to GSPAC by
the
Investor. Upon such receipt by Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx
LLP, of the certificates, each Investor shall promptly, but no more than one
Business Day thereafter, cause a wire transfer in same day funds to be sent
to
the account of GSPAC as instructed in writing by GSPAC, in an amount
representing such Investor’s pro rata portion of the Purchase Price as set forth
on the signature pages to this Agreement. On each date (a “Closing
Date”)
GSPAC
receives the Purchase Price, the certificates evidencing the Shares shall be
released to the Investors (each a “Closing”).
Each
Closing of the purchase and sale of the Shares shall take place at the offices
of Xxxxxxxxx Traurig, LLP, 0000 Xxxxxx Xxxxxxxxx, xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, or at such other location and on such other date as GSPAC and each
Investor shall mutually agree.
3
4.
Representations
and Warranties of GSPAC.
Except
as set forth in the Disclosure Schedule, GSPAC hereby represents and warrants
to
the Investors as of the initial Closing Date hereunder as follows:
4.
1
Organization,
Good Standing and Qualification.
Each of
GSPAC and its Subsidiaries is a corporation duly organized, validly existing
and
in good standing under the laws of the jurisdiction of its incorporation and
has
all requisite corporate power and authority to carry on its business as now
conducted and to own its properties. Each of GSPAC and its Subsidiaries is
duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification or leasing necessary unless the
failure to so qualify has not had and could not reasonably be expected to have
a
Material Adverse Effect. GSPAC’s Subsidiaries as of the date of this Agreement
are listed on Schedule
4.1
of the
Disclosure Schedule.
4.2
Authorization.
GSPAC
has full power and authority and has taken all requisite action, whether on
the
part of GSPAC, its officers, directors or stockholders, necessary for (i) the
authorization, execution and delivery of the Transaction Documents to which
it
is a party, (ii) the authorization of the performance of all of its obligations
hereunder or thereunder, and (iii) the authorization, issuance (or reservation
for issuance) and delivery of the Shares. The Transaction Documents constitute
the legal, valid and binding obligations of GSPAC, enforceable against GSPAC
in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability,
relating to or affecting creditors’ rights generally.
4.3
Capitalization.
Schedule
4.3
of the
Disclosure Schedule sets forth (a) the authorized capital stock of GSPAC on
the
date hereof and (b) the number of shares of capital stock issued and
outstanding, exclusive of the Shares and (c) the number of shares of capital
stock issuable and reserved for issuance pursuant to securities (other than
the
Shares) exercisable for, or convertible into or exchangeable for any shares
of
capital stock of GSPAC. All of the issued and outstanding shares of GSPAC’s
capital stock have been duly authorized and validly issued and are fully paid,
non-assessable and free of preemptive rights and were issued in full compliance
with applicable state and federal securities law and any rights of third
parties. All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, were issued in full compliance
with
applicable state and federal securities law and any rights of third parties
and
are owned by GSPAC, beneficially and of record, subject to no lien, encumbrance
or other adverse claim. No Person is entitled to preemptive or similar statutory
or contractual rights with respect to any of GSPAC’s securities. Except as
described on Schedule
4.3,
there
are no outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which GSPAC or any of its
Subsidiaries is or may be obligated to issue any equity securities of any kind
and except as contemplated by this Agreement or the Acquisition Agreement,
neither GSPAC nor any of its Subsidiaries is currently in negotiations for
the
issuance of any equity securities of any kind. Except for the Registration
Rights Agreement, there are no voting agreements, buy-sell agreements, option
or
right of first purchase agreements or other agreements of any kind among GSPAC
and any of its securityholders relating to GSPAC securities held by them. Except
as described on Schedule
4.3
and
except as provided in the Registration Rights Agreement, no Person has the
right
to require GSPAC to register any of its securities under the 1933 Act, whether
on a demand basis or in connection with the registration of GSPAC’s securities
for its own account or for the account of any other Person.
4
The
issuance and sale of the Shares hereunder will not obligate GSPAC to issue
shares of Preferred Stock or other securities to any other Person (other than
the Investors) and will not result in the adjustment of the exercise,
conversion, exchange or reset price of any outstanding security.
GSPAC
does not have outstanding stockholder purchase rights or “poison pill” or any
similar arrangement in effect giving any Person the right to purchase any equity
interest in GSPAC upon the occurrence of certain events.
4.4
Valid
Issuance.
The
Shares, upon the filing of the Certificate of Designations substantially in
the
form of Exhibit
C
attached
hereto, will be duly and validly authorized and, when issued and paid for
pursuant to this Agreement, will be validly issued, fully paid and
non-assessable, and shall be free and clear of all encumbrances and restrictions
(other than those created by the Investors), except for restrictions on transfer
set forth in the Transaction Documents or imposed by applicable securities
laws.
4.5
Consents.
GSPAC’s
execution, delivery and performance of the Transaction Documents and the offer,
issuance and sale of the Shares require no consent of, action by or in respect
of, or filing with, any Person, governmental body, agency, or official other
than filings that have been made pursuant to applicable state securities laws
and post-sale filings pursuant to applicable state and federal securities laws
which GSPAC undertakes to file within the applicable time periods. Subject
to
the accuracy of the representations and warranties of each Investor set forth
in
Section
6
hereof,
GSPAC has taken all action necessary to exempt (i) the issuance and sale of
the
Shares, and (ii) the other transactions contemplated by the Transaction
Documents from the provisions of any stockholder rights plan or other “poison
pill” arrangement, any anti-takeover, business combination or control share law
or statute binding on GSPAC or to which GSPAC or any of its assets and
properties may be subject and any provision of GSPAC’s Certificate of
Incorporation or Bylaws that is or could reasonably be expected to become
applicable to the Investors as a result of the transactions contemplated hereby,
including without limitation, the issuance of the Shares and the ownership,
disposition or voting of the Shares by the Investors or the exercise of any
right granted to the Investors pursuant to this Agreement or the other
Transaction Documents.
5
4.6
Delivery
of SEC Filings; Business.
GSPAC
has made available to the Investors through the XXXXX system, true and complete
copies of its most recent Annual Report on Form 10-K for the fiscal year ended
July 31, 2007 (the “10-K”),
all
other reports filed by GSPAC pursuant to the 1934 Act since the filing of the
10-K and prior to the date hereof (including all Quarterly Reports on Form
10-Q), and the Definitive Proxy Statement (No. 000-51869),
filed with the Securities and Exchange Commission on April 11, 2008
(“Proxy
Statement”),
(collectively,
the “SEC
Filings”).
The
SEC Filings are the only filings required of GSPAC pursuant to the 1934 Act
for
such period. GSPAC and its Subsidiaries are engaged in all material respects
only in the business described in the SEC Filings and the SEC Filings contain
a
complete and accurate description in all material respects of GSPAC’s business
and that of its Subsidiaries, taken as a whole.
4.7
Use
of
Proceeds.
The net
proceeds of the sale of the Shares hereunder shall be used by GSPAC for working
capital and general corporate purposes.
4.8
SEC
Filings.
(a)
At
the time of filing thereof, the SEC Filings complied as to form in all material
respects with the requirements of the 1934 Act and did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(b)
Each
registration statement and any amendment thereto filed by GSPAC since September
15, 2005 pursuant to the 1933 Act and the rules and regulations thereunder,
as
of the date such statement or amendment became effective, complied as to form
in
all material respects with the 1933 Act and did not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein not
misleading; and each prospectus filed pursuant to Rule 424(b) under the 1933
Act, as of its issue date and as of the closing of any sale of securities
pursuant thereto did not contain any untrue statement of a material fact or
omit
to state any material fact required to be stated therein or necessary in order
to make the statements made therein, in the light of the circumstances under
which they were made, not misleading.
4.9
No
Conflict, Breach, Violation or Default.
The
execution, delivery and performance of the Transaction Documents by GSPAC and
the issuance and sale of the Shares will not conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a default
under or otherwise accelerate any rights pursuant to (i) GSPAC’s Certificate of
Incorporation or Bylaws, both as in effect on the Closing Date (true and
complete copies of which have been made available to the Investors), or (ii)(a)
any statute, rule, regulation or order of any governmental agency or body or
any
court, domestic or foreign, having jurisdiction over GSPAC, any Subsidiary
or
any of their respective assets or properties, or (b) any agreement or instrument
to which GSPAC or any Subsidiary is a party or by which GSPAC or a Subsidiary
is
bound or to which any of their respective assets or properties is subject,
except, in the case of clause (ii) only, for such conflicts, breaches or
violations as have not had and could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate.
6
4.10
Litigation.
There
are no pending actions, suits or proceedings against or affecting GSPAC, its
Subsidiaries or any of its or their properties; and to GSPAC’s Knowledge, no
such actions, suits or proceedings are threatened or contemplated. Neither
GSPAC
nor any Subsidiary, nor any director or officer thereof, is or has been the
subject of any action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There
has not been, and to GSPAC’s Knowledge, there is not pending or contemplated,
any investigation by the SEC involving GSPAC or any current or former director
or officer of GSPAC. The SEC has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by GSPAC or
any
Subsidiary under the 1933 Act or the 1934 Act.
4.11
Financial
Statements.
The
financial statements included in each SEC Filing present fairly, in all material
respects, GSPAC’s consolidated financial position as of the dates shown and its
consolidated results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
(“GAAP”)
(except as may be disclosed therein or in the notes thereto, and, in the case
of
quarterly financial statements, as permitted by Form 10-Q under the 1934 Act).
Except as set forth in GSPAC’s financial statements included in the SEC Filings
filed prior to the date hereof or as described on Schedule
4.11
of the
Disclosure Schedule, neither GSPAC nor any of its Subsidiaries has incurred
any
liabilities, contingent or otherwise, except those incurred in the ordinary
course of business, consistent (as to amount and nature) with past practices
since the date of such financial statements, none of which, individually or
in
the aggregate, have had or could reasonably be expected to have a Material
Adverse Effect.
4.12
Brokers
and Finders.
No
Person will have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon GSPAC,
any Subsidiary or an Investor for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or
on
behalf of GSPAC.
4.13
No
Directed Selling Efforts or General Solicitation.
Neither
GSPAC nor any Person acting on its behalf has conducted any general solicitation
or general advertising (as those terms are used in Regulation D) in connection
with the offer or sale of any of the Shares.
4.14
Private
Placement.
Assuming the accuracy of the representations and warranties made by the
Investors set forth in Section
6
hereof,
the offer and sale of the Shares to the Investors as contemplated hereby is
exempt from the registration requirements of the 1933 Act.
4.15
Transactions
with Affiliates.
Except
as disclosed in the SEC Filings, none of GSPAC’s officers or directors is
presently a party to any transaction with GSPAC or any Subsidiary (other than
as
holders of stock options and/or warrants, and 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 GSPAC’s Knowledge, any entity in which
any officer, director, or any such employee has a substantial interest or is
an
officer, director, trustee or partner.
7
4.16 Internal
Controls.
GSPAC
is in material compliance with the provisions of the Xxxxxxxx-Xxxxx Act of
2002
currently applicable to GSPAC. GSPAC and the 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 GAAP 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.
GSPAC
has established disclosure controls and procedures (as defined in 1934 Act
Rules
13a-15(e) and 15d-15(e)) for GSPAC and designed such disclosure controls and
procedures to ensure that material information relating to GSPAC, including
the
Subsidiaries, is made known to the certifying officers by others within those
entities, particularly during the period in which GSPAC's most recently filed
periodic report under the 1934 Act, as the case may be, is being prepared.
GSPAC’s certifying officers have evaluated the effectiveness of GSPAC’s controls
and procedures as of the end of the period covered by the most recently filed
periodic report under the 1934 Act (such date, the "Evaluation Date"). GSPAC
presented in its most recently filed periodic report under the 1934 Act the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in GSPAC’s
internal controls (as such term is defined in Item 308 of Regulation S-K) or,
to
GSPAC’s Knowledge, in other factors that could significantly affect GSPAC’s
internal controls. GSPAC maintains and will continue to maintain a standard
system of accounting established and administered in accordance with GAAP and
the applicable requirements of the 1934 Act.
4.17
Disclosures.
Except
as described on Schedule
4.17
of the
Disclosure Schedule, neither GSPAC nor any Person acting on its behalf has
provided the Investors or their agents or counsel with any information that
constitutes or might constitute material, non-public information, other than
the
terms of the transactions contemplated hereby. The written materials delivered
to the Investors in connection with the transactions contemplated by the
Transaction Documents do not contain any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading.
4.18
Tax
Matters.
GSPAC
has timely prepared and filed all tax returns required to have been filed by
it
with all appropriate governmental agencies and timely paid all taxes shown
thereon or otherwise owed by it. The charges, accruals and reserves on the
books
of GSPAC in respect of taxes for all fiscal periods are adequate in all material
respects, and there are no material unpaid assessments against GSPAC nor, to
GSPAC Knowledge, any basis for the assessment of any additional taxes, penalties
or interest for any fiscal period or audits by any federal, state or local
taxing authority except for any assessment which is not material to GSPAC,
taken
as a whole. All taxes and other assessments and levies that GSPAC is required
to
withhold or to collect for payment have been duly withheld and collected and
paid to the proper governmental entity or third party when due. There are no
tax
liens or claims pending or, to GSPAC Knowledge, threatened against GSPAC or
any
of its respective assets or property. There are no outstanding tax sharing
agreements or other such arrangements between GSPAC and any other
entity.
4.19
Labor
Matters.
Since
its incorporation, GSPAC has not employed any individual.
8
5.
Representations
and Warranties of SouthPeak.
Except
as set forth in the Disclosure Schedule, SouthPeak hereby represents and
warrants to the Investors as of the initial Closing Date hereunder as follows:
5.1 Organization,
Good Standing and Qualification.
SouthPeak is a limited liability company duly formed, validly existing and
in
good standing under the laws of the jurisdiction of its formation and has all
requisite power and authority to carry on its business as now conducted and
to
own its properties. SouthPeak is duly qualified to do business as a foreign
limited liability company and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property makes such
qualification or leasing necessary unless the failure to so qualify has not
had
and could not reasonably be expected to have a Material Adverse Effect.
SouthPeak does not directly or indirectly own any equity or similar interest
in,
or any interest convertible or exchangeable or exercisable for, any equity
or
similar interest in, any Subsidiary.
5.2 Capitalization.
The
members of SouthPeak set forth in the Acquisition Agreement represent all of
the
members of SouthPeak. Except as set forth in the Proxy Statement, there are
no
outstanding warrants, options, convertible securities or other rights to acquire
any interest or other securities in SouthPeak.
5.3
Authorization.
SouthPeak has full power and authority and has taken all requisite action,
whether on the part of SouthPeak, its officers, members or managers, necessary
for (i) the authorization, execution and delivery of each of the Transaction
Documents to which it is a party and (ii) the authorization of the performance
of all of its obligations hereunder or thereunder. To the extent it is a party
thereto, the Transaction Documents constitute the legal, valid and binding
obligations of SouthPeak, enforceable against SouthPeak in accordance with
their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors’ rights generally.
5.4 No
Material Adverse Change.
Since
June 30, 2007, except as identified and described in the Proxy Statement, there
has not been:
(i)
any
change in the consolidated assets, liabilities, financial condition or operating
results of SouthPeak from that reflected in SouthPeak’s financial statements, a
copy of which has been provided to Investors, except for changes in the ordinary
course of business which have not had and could not reasonably be expected
to
have a Material Adverse Effect, individually or in the aggregate, including
loans incurred in the approximate amount of $440,000, the proceeds of which
were
distributed to SouthPeak’s members for the payment of income taxes;
(ii)
any
material damage, destruction or loss, whether or not covered by insurance to
any
of SouthPeak’s assets or properties;
(iii)
any
declaration or payment of any dividend other than distributions to members
for
payment of income taxes, or any authorization or payment of any distribution
on
any of the membership interests of SouthPeak, or any redemption or repurchase
of
any securities of SouthPeak;
9
(iv)
any
waiver, not in the ordinary course of business, by SouthPeak of a material
right
or of a material debt owed to it;
(v)
any
satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by SouthPeak, except in the ordinary course of business or which
is
not material to the assets, properties, financial condition, operating results
or business of SouthPeak taken as a whole (as such business is presently
conducted and as it is proposed to be conducted);
(vi)
any
change or amendment to SouthPeak’ Operating Agreement, or material change to any
material contract or arrangement by which SouthPeak is bound or to which any
of
its respective assets or properties is subject;
(vii)
any
material labor difficulties or labor union organizing activities with respect
to
SouthPeak’s employees;
(viii)
any material transaction entered into by SouthPeak other than in the ordinary
course of business;
(ix)
the
loss of the services of any key employee, or material change in the composition
or duties of the senior management of SouthPeak;
(x)
the
loss of any customer which has had or could reasonably be expected to have
a
Material Adverse Effect; or
(xi)
any
other event or condition of any character that has had or could reasonably
be
expected to have a Material Adverse Effect.
5.5 No
Conflict, Breach, Violation or Default.
The
execution, delivery and performance of each of the Transaction Documents to
which SouthPeak is a party will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under
or otherwise accelerate any rights pursuant to (i) SouthPeak’s Operating
Agreement as in effect on the date hereof (true and complete copies of which
have been made available to the Investors), or (ii)(a) any statute, rule,
regulation or order of any governmental agency or body or any court, domestic
or
foreign, having jurisdiction over SouthPeak or any of its assets or properties,
or (b) any agreement or instrument to which SouthPeak is a party or by which
SouthPeak is bound or to which any of its assets or properties is subject,
except, in the case of clause (ii) only, for such conflicts, breaches or
violations as have not had and could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate.
10
5.6
Tax
Matters.
SouthPeak has timely prepared and filed all tax returns required to have been
filed by it with all appropriate governmental agencies and timely paid all
taxes
shown thereon or otherwise owed by it. The charges, accruals and reserves on
the
books of SouthPeak in respect of taxes for all fiscal periods are adequate
in
all material respects, and there are no material unpaid assessments against
SouthPeak nor, to SouthPeak’s Knowledge, any basis for the assessment of any
additional taxes, penalties or interest for any fiscal period or audits by
any
federal, state or local taxing authority except for any assessment which is
not
material to South Peak, taken as a whole. All taxes and other assessments and
levies that SouthPeak is required to withhold or to collect for payment have
been duly withheld and collected and paid to the proper governmental entity
or
third party when due. There are no tax liens or claims pending or, to
SouthPeak’s Knowledge, threatened against SouthPeak or any of its respective
assets or property. There are no outstanding tax sharing agreements or other
such arrangements between SouthPeak and any other entity.
5.7
Title
to Properties.
Except
as
described in Schedule
5.7,
SouthPeak has good and marketable title to all real properties and all other
properties and assets owned by it, in each case free from liens, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or currently planned to be made thereof by it;
and
except as disclosed in Schedule
5.7,
SouthPeak holds any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or
currently planned to be made thereof by it.
5.8
Certificates,
Authorities and Permits.
SouthPeak possesses adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by it, and SouthPeak has not received any notice of proceedings
relating to the revocation or modification of any such certificate, authority
or
permit that, if determined adversely to SouthPeak, could reasonably be expected
to have a Material Adverse Effect, individually or in the aggregate.
5.9
Labor
Matters.
(a)
SouthPeak is not a party to or bound by any collective bargaining agreements
or
other agreements with labor organizations. SouthPeak has not violated in any
material respect any laws, regulations, orders or contract terms, affecting
the
collective bargaining rights of employees, labor organizations or any laws,
regulations or orders affecting employment discrimination, equal opportunity
employment, or employees’ health, safety, welfare, wages and hours.
(b)
(i)
There are no labor disputes existing, or to SouthPeak’s Knowledge, threatened,
involving strikes, slow-downs, work stoppages, job actions, disputes, lockouts
or any other disruptions of or by SouthPeak’s employees, (ii) there are no
unfair labor practices or petitions for election pending or, to SouthPeak’s
Knowledge, threatened before the National Labor Relations Board or any other
federal, state or local labor commission relating to SouthPeak’s employees,
(iii) no demand for recognition or certification heretofore made by any labor
organization or group of employees is pending with respect to SouthPeak and
(iv)
to SouthPeak’s Knowledge, it enjoys good labor and employee relations with its
employees and labor organizations.
(c)
SouthPeak is, and at all times has been, in compliance in all material respects
with all applicable laws respecting employment (including laws relating to
classification of employees and independent contractors) and employment
practices, terms and conditions of employment, wages and hours, and immigration
and naturalization. There are no claims pending against SouthPeak before the
Equal Employment Opportunity Commission or any other administrative body or
in
any court asserting any violation of Title VII of the Civil Rights Act of 1964,
the Age Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or any other
federal, state or local Law, statute or ordinance barring discrimination in
employment.
11
(d)
Except as disclosed in the Proxy Statement, SouthPeak is not a party to, or
bound by, any employment or other contract or agreement that contains any
severance, termination pay or change of control liability or obligation,
including, without limitation, any “excess parachute payment,” as defined in
Section 280G(b) of the Internal Revenue Code.
(e)
Except as specified in Schedule
5.8,
each of
SouthPeak’s employees is a Person who is either a United States citizen or a
permanent resident entitled to work in the United States. To SouthPeak’s
Knowledge, SouthPeak has no liability for the improper classification by
SouthPeak of such employees as independent contractors or leased employees
prior
to the Closing.
5.10
Intellectual
Property.
(a)
All
Intellectual Property of SouthPeak is currently in compliance with all legal
requirements (including timely filings, proofs and payments of fees) and is
valid and enforceable. No SouthPeak Intellectual Property which is necessary
for
the conduct of SouthPeak’s business as currently conducted has been or is now
involved in any cancellation, dispute or litigation, and, to SouthPeak’s
Knowledge, no such action is threatened. No patent of SouthPeak’s has been or is
now involved in any interference, reissue, re-examination or opposition
proceeding.
(b)
All
of the material licenses and material sublicenses and material consent, royalty
or other agreements concerning Intellectual Property which are necessary for
the
conduct of SouthPeak’s business as currently conducted, to which SouthPeak is a
party or by which any of its assets are bound (other than generally commercially
available, non-custom, off-the-shelf software application programs having a
retail acquisition price of less than $10,000 per license) (collectively,
“License
Agreements”)
are
valid and binding obligations of SouthPeak and, to SouthPeak’s Knowledge, the
other parties thereto, enforceable in accordance with their terms, except to
the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting the enforcement of creditors’ rights generally, and there exists no
event or condition which will result in a material violation or breach of or
constitute (with or without due notice or lapse of time or both) a default
by
SouthPeak under any such License Agreement.
(c)
SouthPeak owns or has the valid right to use all of the Intellectual Property
that is necessary for the conduct of its business as currently conducted and
for
the ownership, maintenance and operation of its properties and assets, free
and
clear of all liens, encumbrances, adverse claims or obligations to license
all
such owned Intellectual Property and Confidential Information, other than
licenses entered into in the ordinary course of its business. SouthPeak has
a
valid and enforceable right to use all third party Intellectual Property and
Confidential Information used or held for use in the business of SouthPeak.
12
(d)
The
conduct of SouthPeak’s business as currently conducted does not infringe or
otherwise impair or conflict with (collectively, “Infringe”)
any
Intellectual Property rights of any third party or any confidentiality
obligation owed to a third party, and, to SouthPeak’s Knowledge, the
Intellectual Property and Confidential Information of SouthPeak which are
necessary for the conduct of SouthPeak’s business as currently conducted are not
being Infringed by any third party. There is no litigation or order pending
or
outstanding or, to SouthPeak’s Knowledge, threatened or imminent, that seeks to
limit or challenge or that concerns the ownership, use, validity or
enforceability of any Intellectual Property or Confidential Information of
SouthPeak and SouthPeak’s use of any Intellectual Property or Confidential
Information owned by a third party, and, to SouthPeak’s Knowledge, there is no
valid basis for the same.
(e)
The
consummation of the transactions contemplated hereby and by the other
Transaction Documents will not result in the alteration, loss, impairment of
or
restriction on SouthPeak’s ownership or right to use any of the Intellectual
Property or Confidential Information which is necessary for the conduct of
its
business as currently conducted.
(f)
SouthPeak has taken reasonable steps to protect its rights in its Intellectual
Property and Confidential Information. Each employee, consultant and contractor
who has had access to Confidential Information which is necessary for the
conduct of SouthPeak’s business as currently conducted has executed an agreement
to maintain the confidentiality of such Confidential Information and has
executed appropriate agreements that are substantially consistent with
SouthPeak’s standard forms thereof. Except under confidentiality obligations,
there has been no material disclosure of any of SouthPeak’s Confidential
Information to any third party.
5.11
Environmental
Matters.
SouthPeak is not in violation of any statute, rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, “Environmental
Laws”),
does
not own or operate any real property contaminated with any substance that is
subject to any Environmental Laws, is not liable for any off-site disposal
or
contamination pursuant to any Environmental Laws, is not subject to any claim
relating to any Environmental Laws, which violation, contamination, liability
or
claim has had or could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate; and there is no pending or, to SouthPeak’s
Knowledge, threatened investigation that might lead to such a claim.
5.12 Litigation.
There
are no pending actions, suits or proceedings against or affecting SouthPeak
or
any of its properties; and to SouthPeak’s Knowledge, no such actions, suits or
proceedings are threatened or contemplated. Except for Xxxxx Xxxxxxxx, neither
SouthPeak, nor any member, manager or officer thereof has been the subject
of
any action involving a claim of violation of or liability under federal or
state
securities laws or a claim of breach of fiduciary duty. There has not been,
and
to SouthPeak’s Knowledge, there is not pending or contemplated, any
investigation by the SEC involving SouthPeak or any current or former member,
manager or officer of SouthPeak.
13
5.13 Financial
Statements.
SouthPeak has as made available to the Investors true and complete copies of
its
most recent Financial Statements. The Financial Statements have been prepared
in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, fairly present the financial condition, results of operations
and cash flows of SouthPeak as of the respective dates thereof and for the
periods referred to therein and are consistent with the books and records of
SouthPeak and are true, accurate and correct in all material respects; provided,
however, that the Financial Statements referred to in clause (ii) of the
definition of such term are subject to normal recurring year-end adjustments
and
do not include footnotes.
5.14 Insurance
Coverage.
SouthPeak maintains in full force and effect insurance coverage that is
customary for comparably situated companies for the business being conducted
and
properties owned or leased by SouthPeak, and SouthPeak reasonably believes
such
insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
5.15
Brokers
and Finders.
Except
for HCFP/Xxxxxxx Securities LLC, no Person will have, as a result of the
transactions contemplated by the Transaction Documents, any valid right,
interest or claim against or upon SouthPeak for any commission, fee or other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of SouthPeak.
5.16
No
Directed Selling Efforts or General Solicitation.
Neither
SouthPeak nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation
D) in
connection with the offer or sale of any of the Shares.
5.17 Transactions
with Affiliates.
Except
as disclosed in the Proxy Statement, none of the officers, members or managers
of SouthPeak and, to SouthPeak’s Knowledge, none of its employees is presently a
party to any transaction with SouthPeak (other than as holders of membership
interests, and for services as employees, officers and managers), 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, member, manager or
such
employee or, to SouthPeak’s Knowledge, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
5.18
Disclosures.
Except
as described on Schedule
5.18
of the
Disclosure Schedule, neither SouthPeak nor any Person acting on its behalf
has
provided the Investors or their agents or counsel with any information that
constitutes or might constitute material, non-public information, other than
the
terms of the transactions contemplated hereby. The written materials delivered
to the Investors in connection with the transactions contemplated by the
Transaction Documents do not contain any untrue statement of a material fact
or
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading.
14
6. Representations
and Warranties of the Investors.
Each of
the Investors hereby severally, and not jointly, represents and warrants to
each
of GSPAC and SouthPeak that:
6.1
Organization
and Existence.
Such
Investor is a validly existing corporation, limited partnership or limited
liability company and has all requisite corporate, partnership or limited
liability company power and authority to invest in the Shares pursuant to this
Agreement.
6.2
Authorization.
The
execution, delivery and performance by such Investor of the Transaction
Documents to which such Investor is a party have been duly authorized and each
will constitute the legal, valid and binding obligations of such Investor,
enforceable against such Investor in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability, relating to or affecting creditors’
rights generally.
6.3
Purchase
Entirely for Own Account.
The
Shares to be received by such Investor hereunder will be acquired for such
Investor’s own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the 1933 Act, and
such Investor has no present intention of selling, granting any participation
in, or otherwise distributing the same in violation of the 1933 Act without
prejudice, however, to such Investor’s right at all times to sell or otherwise
dispose of all or any part of such Shares in compliance with applicable federal
and state securities laws.
Nothing
contained herein shall be deemed a representation or warranty by such Investor
to hold the Shares for any period of time. Such Investor is not a broker-dealer
registered with the SEC under the 1934 Act or an entity engaged in a business
that would require it to be so registered.
6.4
Investment
Experience.
Such
Investor acknowledges that it can bear the economic risk and complete loss
of
its investment in the Shares and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of
the
investment contemplated hereby.
6.5
Disclosure
of Information.
Such
Investor has had an opportunity to receive all information related to each
of
GSPAC and SouthPeak requested by it and to ask questions of and receive answers
from GSPAC and SouthPeak regarding their respective businesses and the terms
and
conditions of the offering of the Shares. Such Investor acknowledges receipt
of
copies of the SEC Filings. Neither such inquiries nor any other due diligence
investigation conducted by such Investor shall modify, limit or otherwise affect
such Investor’s right to rely on the representations and warranties of GSPAC and
SouthPeak contained in this Agreement. The parties agree that each Investor
may
determine that it wants to limit the type of information that it receives and,
consequently, each Investor shall have the ability to perform its due diligence
investigation in the manner it determines is appropriate and may request not
to
receive any material non-public information relating to GSPAC.
6.6
Restricted
Securities.
Such
Investor understands that the Shares are characterized as “restricted
securities” under the U.S. federal securities laws inasmuch as they are being
acquired from GSPAC in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be resold without
registration under the 1933 Act only in certain limited circumstances.
15
6.7
Legends.
It is
understood that, except as provided below, certificates evidencing the Shares
may bear the following or any similar legend:
(a)
“The
securities represented hereby have not been registered under the Securities
Act
of 1933 or any applicable state securities laws and may not be transferred
unless (i) such securities have been registered for sale pursuant to the
Securities Act of 1933, as amended, (ii) such securities may be sold pursuant
to
Rule 144(k), or (iii) GSPAC has received an opinion of counsel reasonably
satisfactory to it that such transfer may lawfully be made without registration
under the Securities Act of 1933 or qualification under applicable state
securities laws.”
(b)
If
required by the authorities of any state in connection with the issuance of
sale
of the Shares, the legend required by such state authority.
(c)
GSPAC
acknowledges and agrees that an Investor may from time to time pledge, and/or
grant a security interest in, some or all of the legended Shares in connection
with applicable securities laws, pursuant to a bona fide margin agreement in
compliance with a bona fide margin loan. Such a pledge would not be subject
to
approval or consent of GSPAC and no legal opinion of legal counsel to the
pledge, secured party or pledgor shall be required in connection with the
pledge, but such legal opinion shall be required in connection with a subsequent
transfer or foreclosure following default by the transferee of the pledge.
No
notice shall be required of such pledge, but Investor’s transferee shall
promptly notify GSPAC of any such subsequent transfer or foreclosure. Each
Investor acknowledges that GSPAC shall not be responsible for any pledges
relating to, or the grant of any security interest in, any of the Shares or
for
any agreement, understanding or arrangement between any Investor and its pledgee
or secured party. At the appropriate Investor’s expense, GSPAC will execute and
deliver such reasonable documentation as a pledgee or secured party of Shares
may reasonably request in connection with a pledge or transfer of the Shares,
including the preparation and filing of any required prospectus supplement
under
Rule 424(b)(3) of the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder. Each Investor acknowledges and agrees that, except as otherwise
provided in Section
8.2,
any
Shares subject to a pledge or security interest as contemplated by this
Section
6.7
shall
continue to bear the legend set forth in this Section
6.7
and be
subject to the restrictions on transfer set forth in this Agreement.
6.8
Accredited
Investor.
Such
Investor is an accredited investor as defined in Rule 501(a) of Regulation
D, as
amended, under the 0000 Xxx.
6.9
No
General Solicitation.
Such
Investor did not learn of the investment in the Shares as a result of any
general solicitation or general advertising.
6.10
Brokers
and Finders.
No
Person will have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon
SouthPeak, GSPAC, any Subsidiary or an Investor for any commission, fee or
other
compensation pursuant to any agreement, arrangement or understanding entered
into by or on behalf of such Investor.
16
6.11
Prohibited
Transactions.
During
the last thirty (30) days prior to the date hereof, neither such Investor nor
any Affiliate of such Investor which (x) had knowledge of the transactions
contemplated hereby, (y) has or shares discretion relating to such Investor’s
investments or trading or information concerning such Investor’s investments,
including in respect of the Shares, or (z) is subject to such Investor’s review
or input concerning such Affiliate’s investments or trading (collectively,
“Trading
Affiliates”)
has,
directly or indirectly, effected or agreed to effect any short sale, whether
or
not against the box, established any “put equivalent position” (as defined in
Rule 16a-1(h) under the 0000 Xxx) with respect to GSPAC’s Common Stock, granted
any other right (including, without limitation, any put or call option) with
respect to such Common Stock or with respect to any security that includes,
relates to or derived any significant part of its value from the Common Stock
or
otherwise sought to hedge its position in the shares of Common Stock underlying
the Preferred Stock (each, a “Prohibited
Transaction”).
Prior
to the earliest to occur of (i) the termination of this Agreement, (ii) the
Effective Date or (iii) the Effectiveness Deadline, such Investor shall not,
and
shall cause its Trading Affiliates not to, engage, directly or indirectly,
in a
Prohibited Transaction. Such Investor acknowledges that the representations,
warranties and covenants contained in this Section
6.11
are
being made for the benefit of the Investors as well as GSPAC and that each
of
the other Investors shall have an independent right to assert any claims against
such Investor arising out of any breach or violation of the provisions of this
Section
6.11.
6.12
Regulation
M.
Such
Investor is aware that the anti-manipulation rules of Regulation M under the
1934 Act may apply to sales of Preferred Stock and other activities with respect
to the Preferred Stock by the Investors.
6.13
Residency.
Such
Investor’s principal executive offices are in the jurisdiction set forth in the
address for notice for such Investor on the applicable signature page attached
hereto.
7.
Conditions
to Closing.
7.1
Conditions
to the Investors’ Obligations.
The
obligation of each Investor to purchase the Shares at the Closing is subject
to
the fulfillment to such Investor’s satisfaction, on or prior to the Closing
Date, of the following conditions, any of which may be waived by such Investor
(as to itself only):
(a)
The
representations and warranties made by GSPAC in Section
4
hereof
and by SouthPeak in Section
5
hereof
not qualified as to materiality shall be true and correct in all material
respects when made and shall be true and correct in all material respects at
and
on the Closing Date, except to the extent any such representation or warranty
expressly speaks as of an earlier date, in which case such representation or
warranty shall be true and correct as of such earlier date. GSPAC and SouthPeak,
as applicable, shall have performed in all material respects all obligations
and
covenants herein required to be performed by it on or prior to the Closing
Date.
(b)
GSPAC
and SouthPeak, as applicable, shall have obtained any and all consents, permits,
approvals, registrations and waivers necessary or appropriate for consummation
of the purchase and sale of the Shares and the consummation of the other
transactions contemplated by the Transaction Documents, including those
consents, permits, approvals, registrations and waivers as set forth in
Sections
7.2(d)
and
(e)
below,
all of which shall be in full force and effect.
17
(c)
GSPAC
shall have executed and delivered the Registration Rights Agreement.
(d)
Closing shall have occurred under the Acquisition Agreement and the Amended
and
Restated Certificate of Incorporation attached hereto as Exhibit
B
and the
Certificate of Designations attached hereto as Exhibit
C
shall
have been filed with the Delaware Secretary of State.
(e)
No
judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order
of
or by any governmental authority, shall have been issued, and no action or
proceeding shall have been instituted by any governmental authority, enjoining
or preventing the consummation of the transactions contemplated hereby or in
the
other Transaction Documents.
(f)
GSPAC
shall have delivered a Certificate, executed on behalf of GSPAC by its Chief
Executive Officer or its Chief Financial Officer, dated as of the Closing Date,
certifying to the fulfillment of the conditions specified in subsections
(a),(b),(d),(e)
and
(i)
of this
Section
7.1.
SouthPeak shall have delivered a Certificate, executed on behalf of SouthPeak
by
its managing member, dated as of the Closing Date, certifying to the fulfillment
of the conditions specified in subsections (b),(d)
and
(e)
of this
Section
7.1.
(g)
GSPAC
shall have delivered a Certificate, executed on behalf of GSPAC by its
Secretary, dated as of the Closing Date, certifying the resolutions adopted
by
the Board of Directors of GSPAC approving the transactions contemplated by
this
Agreement and the other Transaction Documents and the issuance of the Shares,
certifying the current versions of its Certificate of Incorporation and Bylaws
and certifying as to the signatures and authority of persons signing the
Transaction Documents and related documents on behalf of GSPAC.
(h)
SouthPeak shall have delivered a Certificate, executed on behalf of SouthPeak,
dated as of the Closing Date, certifying the resolutions adopted by the Managers
of GSPAC approving the transactions contemplated by this Agreement and the
other
Transaction Documents, certifying the current version of its Operating Agreement
and certifying as to the signatures and authority of persons signing the
Transaction Documents and related documents on behalf of SouthPeak.
(i)
The
Investors shall have received an opinion from Xxxxxxxxx Xxxxxxx, LLP, GSPAC’s
counsel, dated as of the Closing Date, in form and substance reasonably
acceptable to the Investors and attached hereto as Exhibit
D,
addressing such legal matters as the Investors may reasonably request.
(j)
No
stop order or suspension of trading shall have been imposed by any
Self-Regulatory Organization, the SEC or any other governmental or regulatory
body with respect to public trading in the Preferred Stock.
(k)
The
members of SouthPeak shall have executed a lock-up agreement in form and
substance satisfactory to the Investors at the initial Closing under this
Agreement.
18
7.2
Conditions
to Obligations of GSPAC.
GSPAC’s
obligation to sell and issue the Shares at the Closing is subject to the
fulfillment to the satisfaction of GSPAC on or prior to the Closing Date of
the
following conditions, any of which may be waived by GSPAC:
(a)
The
representations and warranties made by the Investors in Section
6
hereof,
other than the representations and warranties contained in Sections 6.3, 6.4, 6.5, 6.6, 6.7, 6.8 and 6.9
(the
“Investment
Representations”),
shall
be true and correct in all material respects when made, and shall be true and
correct in all material respects on the Closing Date with the same force and
effect as if they had been made on and as of said date. The Investment
Representations shall be true and correct in all respects when made, and shall
be true and correct in all respects on the Closing Date with the same force
and
effect as if they had been made on and as of said date. The Investors shall
have
performed in all material respects all obligations and covenants herein required
to be performed by them on or prior to the Closing Date.
(b)
The
Investors shall have executed and delivered the Registration Rights Agreement.
(c)
The
Acquisition shall have been consummated on or before May 31, 2008.
(d)
GSPAC’s wholly-owned subsidiary, SouthPeak Interactive Corporation
(“SP
Holdings”),
and
SP Holdings’ wholly-owned subsidiary, GSPAC Merger GSPAC, shall have been merged
with and into GSPAC (the “Merger”)
and
GSPAC shall have received all applicable approvals of such Merger required
under
Delaware corporate law and federal securities laws.
(e)
The
Amended and Restated Certificate of Incorporation and Certificate of
Designations attached hereto as Exhibits
B and C
shall
have been filed with the Delaware Secretary of State.
7.3
Conditions
to Obligations of SouthPeak.
SouthPeak’s obligation to consummate the transactions contemplated by this
Agreement and the Transaction Documents, to the extent it is a party thereto,
is
subject to the fulfillment to the satisfaction of SouthPeak on or prior to
the
Closing Date of the following conditions, any of which may be waived by
SouthPeak:
(a)
The
representations and warranties made by the Investors in Section
6
hereof,
other than the Investment Representations, shall be true and correct in all
material respects when made, and shall be true and correct in all material
respects on the Closing Date with the same force and effect as if they had
been
made on and as of said date. The Investment Representations shall be true and
correct in all respects when made, and shall be true and correct in all respects
on the Closing Date with the same force and effect as if they had been made
on
and as of said date. The Investors shall have performed in all material respects
all obligations and covenants herein required to be performed by them on or
prior to the Closing Date.
19
(b)
The
Amended and Restated Certificate of Incorporation and Certificate of
Designations attached hereto as Exhibits
B and C
shall
have been filed with the Delaware Secretary of State.
7.4 Termination
of Obligations to Effect Closing; Effects.
(a)
The
obligations of each of GSPAC and SouthPeak, on the one hand, and the Investors,
on the other hand, to effect the Closing shall terminate as follows:
(i)
Upon
the mutual written consent of either GSPAC or SouthPeak and the Investors;
(ii)
By
GSPAC or SouthPeak if any of the conditions set forth in Section
7.2
or
7.3,
respectively, shall have become incapable of fulfillment, and shall not have
been waived by GSPAC or SouthPeak, as applicable.
(iii)
By
an Investor (with respect to itself only) if any of the conditions set forth
in
Section
7.1
shall
have become incapable of fulfillment, and shall not have been waived by the
Investor; or
(iv)
By
any party to the Agreement if the initial Closing has not occurred on or prior
to May 31, 2008;
provided,
however, that, except in the case of clause (i) above, the party seeking to
terminate its obligation to effect the Closing shall not then be in breach
of
any of its representations, warranties, covenants or agreements contained in
this Agreement or the other Transaction Documents if such breach has resulted
in
the circumstances giving rise to such party’s seeking to terminate its
obligation to effect the Closing.
(b)
In
the event of termination by any party of its obligations to effect the Closing
pursuant to this Section
7.4,
written
notice thereof shall forthwith be given to the other parties by such terminating
party and the other parties shall have the right to terminate their obligations
to effect the Closing upon written notice to the remaining parties. Nothing
in
this Section
7.4
shall be
deemed to release any party from any liability for any breach by such party
of
the terms and provisions of this Agreement or the other Transaction Documents
or
to impair the right of any party to compel specific performance by any other
party of its obligations under this Agreement or the other Transaction
Documents.
8.
Covenants
and Agreements of GSPAC.
8.1
No
Conflicting Agreements.
GSPAC
will not take any action, enter into any agreement or make any commitment that
would conflict in any material respect with GSPAC obligations to the Investors
under the Transaction Documents. The provisions of this Section
8.1
shall
terminate and be of no further force and effect on the date on which GSPAC’s
obligations under the Registration Rights Agreement to register or maintain
the
effectiveness of any registration covering the Registrable Securities (as such
term is defined in the Registration Rights Agreement) shall terminate.
20
8.2
Removal
of Legends.
Upon
the earlier of (i) registration for resale pursuant to the Registration Rights
Agreement or (ii) Rule 144(k) becoming available, GSPAC shall promptly (A)
deliver to the transfer agent for the Common Stock underlying the Preferred
Stock (the “Transfer
Agent”)
irrevocable instructions that the Transfer Agent shall reissue a certificate
representing shares of Common Stock without legends upon receipt by such
Transfer Agent of the legended certificates for such shares, together with
either (1) a customary representation by the Investor that Rule 144(k) applies
to the shares of Common Stock represented thereby or (2) a statement by the
Investor that such Investor has sold the shares of Common Stock represented
thereby in accordance with the Plan of Distribution contained in the
Registration Statement, and (B) cause its counsel to deliver to the Transfer
Agent one or more blanket opinions to the effect that the removal of such
legends in such circumstances may be effected under the 1933 Act. From and
after
the earlier of such dates, upon an Investor’s written request, GSPAC shall
promptly cause certificates evidencing the Investor’s shares of common Stock to
be replaced with certificates which do not bear such restrictive legends. When
GSPAC is required to cause an unlegended certificate to replace a previously
issued legended certificate, if: (1) the unlegended certificate is not delivered
to an Investor within three (3) Business Days of submission by that Investor
of
a legended certificate and supporting documentation to the Transfer Agent as
provided above (with a copy to GSPAC) and (2) prior to the time such unlegended
certificate is received by the Investor, the Investor, or any third party on
behalf of such Investor or for the Investor’s account, purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Investor of shares represented by such certificate
(a “Buy-In”),
then
GSPAC shall pay in cash to the Investor (for costs incurred either directly
by
such Purchaser or on behalf of a third party) the amount by which the total
purchase price paid for Common Stock as a result of the Buy-In (including
brokerage commissions, if any) exceeds the proceeds received by such Investor
as
a result of the sale to which such Buy-In relates. The Investor shall provide
GSPAC written notice indicating the amounts payable to the Investor in respect
of the Buy-In.
8.3 Equal
Treatment of Investors.
No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision constitutes
a
separate right granted to each Investor by the other parties hereto and
negotiated separately by each Investor, and is intended for the other parties
hereto to treat the Investors as a class and shall not in any way be construed
as the Investors acting in concert or as a group with respect to the purchase,
disposition or voting of Shares or otherwise.
8.4 Rights
of Participation.
(a) Rights
of Participation.
GSPAC
hereby grants to each Investor, so long as such Investor shall own at least
one-half of the Shares purchased hereunder, including shares of Common Stock
issued upon conversion of the Shares, the right to purchase up to a pro
rata portion
of New Securities (as defined in paragraph (b) below) which GSPAC, from time
to
time, proposes to sell or issue following the date hereof. A Stockholder’s
pro
rata portion,
for purposes of this Section 8.4, is the product of (i) a fraction, the
numerator
of which
is the number of outstanding shares of Common Stock which such Stockholder
then
holds (inclusive of shares of Common Stock then issuable upon conversion of
convertible shares, including the Shares) and the denominator
of which
is the total number of outstanding shares of Common Stock, in the aggregate,
(inclusive of shares of Common Stock then issuable upon conversion of
convertible shares, including the Shares) multiplied by (ii) the number of
New
Securities GSPAC proposes to sell or issue.
21
(b) Definition
of New Securities.
“New
Securities”
shall
mean any Common Stock or other equity securities of GSPAC whether now authorized
or not, any rights, options or warrants to purchase Common Stock or other equity
securities and any indebtedness or preferred stock of GSPAC which is convertible
into Common Stock or other equity securities (or which is convertible into
a
security which is, in turn, convertible into Common Stock or other equity
securities); provided, that the term “New Securities” does not include (i)
indebtedness of GSPAC which is not by its terms convertible into Common Stock;
(ii) Common Stock issued as a stock dividend to all holders of Common
Stock
pro
rata or
upon
any subdivision or combination of shares of Common Stock; (iii) Common Stock
issued to any employee or director and approved by the Board of Directors and
any employee or director stock options approved by the Board of Directors;
(iv)
Common Stock issued in exchange for the cancellation or retirement of any debt
securities of GSPAC or in connection with any restructuring or other financial
workout of GSPAC; (v) Common Stock or warrants to purchase Common Stock issued
to non-Affiliates of GSPAC as part of a bona fide debt offering of units
comprised of such Common Stock or warrants and a debt security of GSPAC; (vi)
Common Stock issued for the acquisition of another corporation or other entity
by GSPAC by stock purchase, merger, purchase of substantially all assets or
other reorganization; (vii) the issuance of Common Stock upon the exercise
or
conversion of any rights, options or warrants to purchase Common Stock; (viii)
Common Stock issuable in a public offering; and (ix) Common Stock issued in
respect of services provided (other than as an employee) to GSPAC or its
subsidiaries and approved by the Board of Directors; and provided,
further,
that
if
any “New Securities” include Common Stock and other equity securities coupled as
a package, “New Securities” shall mean the package of securities and not each
class of securities individually.
(c) Notice
from GSPAC.
In the
event GSPAC proposes to issue New Securities, GSPAC shall give each Investor
written notice of such proposal, describing the type of New Securities and
the
price and the terms upon which GSPAC proposes to issue the same. For a period
of
fifteen (15) business days following the delivery of such notice by GSPAC,
GSPAC
shall be deemed to have irrevocably offered to sell to each Investor such
Investor’s pro
rata share
of
such New Securities for the price and upon the terms specified in the notice.
Each Investor may exercise such Investor’s rights of participation hereunder by
giving written notice to GSPAC and stating therein the quantity of New
Securities to be purchased. Each such Investor shall also be entitled to
indicate a desire to purchase all or a portion of any New Securities remaining
after such pro
rata
allocation. If, as a result of such oversubscription right, such
oversubscriptions exceed the total number of New Securities available in respect
of such oversubscription right, the oversubscribing Investors shall be cut
back
with respect to their oversubscriptions on a pro
rata
basis or
as they may otherwise agree among themselves.
(d) Sale
by GSPAC.
In the
event that the Investors who have a right of participation under this
Section 8.4 fail to commit to purchase all of such New Securities within
said ten (10) business day period, GSPAC shall have ninety (90) days thereafter
to sell the New Securities with respect to which the right of participation
was
not exercised, at a price and upon terms no more favorable to the purchasers
thereof than specified in GSPAC’s notice given pursuant to
Section 8.4(c).
22
(e) Closing.
The
closing for any such issuance shall take place as proposed by GSPAC with respect
to the New Securities to be issued, at which closing GSPAC shall deliver
certificates for the New Securities in the respective names of the purchasing
Stockholders against receipt of payment therefor.
(f) Post-Issuance
Right.
Notwithstanding the requirements of subparagraph (a) of this Section 8.4, GSPAC
may proceed with any issuance of New Securities prior to having complied with
the provisions of subparagraph (a); provided, that GSPAC shall:
(i)
provide
to each Investor
(i) with
prompt notice of such issuance and (ii) the notice described in
subparagraph (a) in which the actual price of the New Securities shall be set
forth;
(ii)
offer to
issue to each Investor such number of New Securities as may be requested by
such
Investor (not to exceed the pro
rata
number
of New Securities that such Investor would have been entitled to purchase
pursuant to subparagraph (a) as adjusted to give effect to the number of New
Securities being sold in accordance with this subparagraph (f)), on the same
economic terms and conditions with respect to such New Securities as the
purchasers of such New Securities have paid; and
(iii)
keep
such offer open for a period of ten (10) Business Days, during which period,
each such Investor may accept such offer by sending a written acceptance to
GSPAC committing to purchase an amount of such New Securities (not in any event
to exceed the maximum number that such Investor would have been entitled to
purchase pursuant to subparagraph (a) as adjusted to give effect to the number
of New Securities being sold in accordance with this subparagraph
(f)
8.5 Warrant
Substitution.
For
every two Shares that an Investor purchases, such Investor shall have the right
for a period of 90 days from the date of such Investor’s purchase of Shares to
tender to GSPAC one outstanding Class W or Class Z warrant of GSPAC and receive
in exchange and substitution therefore a newly authorized Class Y warrant which
Class Y warrant shall possess the same terms as a Class W or Class Z warrant
and
be issued under a Warrant Agreement and form of Warrant Certificate similar
to a
Class W or Class Z warrant except, however, the exercise price shall be $1.50
per share, the term shall expire on May 31, 2013 and the sales price per share
of GSPAC common stock for purposes of allowing for the redemption of such Class
Y warrants shall be $2.50 per share.
9.
Survival
and Indemnification.
9.1
Survival.
The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing of the transactions contemplated by this
Agreement.
23
9.2
Indemnification.
GSPAC
agrees to indemnify and hold harmless each Investor and its Affiliates and
their
respective directors, officers, employees and agents from and against any and
all losses, claims, damages, liabilities and expenses (including without
limitation reasonable attorney fees and disbursements and other expenses
incurred in connection with investigating, preparing, defending or otherwise
directly involving any action, claim or proceeding, pending or threatened and
the costs of enforcement thereof) (collectively, “Losses”)
to
which such Person may become subject as a result of any breach of
representation, warranty, covenant or agreement made by or to be performed
on
the part of GSPAC or SouthPeak, respectively, under the Transaction Documents,
and will reimburse any such Person for all such amounts as they are incurred
by
such Person.
9.3
Conduct
of Indemnification Proceedings.
Promptly
after receipt by any Person (the “Indemnified
Person”)
of
notice of any demand, claim or circumstances which would or might give rise
to a
claim or the commencement of any action, proceeding or investigation in respect
of which indemnity may be sought pursuant to Section
9.2,
such
Indemnified Person shall promptly notify GSPAC) in writing and GSPAC shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person, and shall assume the payment of all
fees and expenses; provided, however, that the failure of any Indemnified Person
so to notify GSPAC shall not relieve GSPAC of its obligations hereunder except
to the extent that GSPAC is materially prejudiced by such failure to notify.
In
any such proceeding, any Indemnified Person shall have the right to retain
its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless: (i) GSPAC and the Indemnified Person shall
have mutually agreed to the retention of such counsel; or (ii) in the reasonable
judgment of counsel to such Indemnified Person representation of both parties
by
the same counsel would be inappropriate due to actual or potential differing
interests between them. GSPAC shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, GSPAC shall indemnify and hold harmless such
Indemnified Person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior written
consent of the Indemnified Person, which consent shall not be unreasonably
withheld, GSPAC shall not effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability arising out of such proceeding.
10.
Miscellaneous.
10.1
Successors
and Assigns.
This
Agreement may not be assigned by a party hereto without the prior written
consent of the other parties to this Agreement, provided, however, that an
Investor may assign its rights and delegate its duties hereunder in whole or
in
part to an Affiliate or to a third party acquiring some or all of its Shares
in
a transaction complying with applicable securities laws without the prior
written consent of the other parties hereto. The provisions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto
or
their respective successors and assigns any rights, remedies, obligations,
or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
24
10.2
Counterparts;
Faxes.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed via facsimile, which shall
be
deemed an original.
10.3
Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement.
10.4
Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given
by
an internationally recognized overnight air courier, then such notice shall
be
deemed given one Business Day after delivery to such carrier. All notices shall
be addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days’ advance written notice to
the other party:
If
to
GSPAC:
Xxxxx
000
Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone:
(703) 286 - 3776
Facsimile:
Attn:
Xxxxxxxx Xxxx
With
a
copy to:
Xxxxxx
& Xxxxxx PLLC
0000
Xxxxxxxxx Xxxxxx, XX
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000-0000
Telephone:
Facsimile:
(000) 000-0000
Attn:
Xxxxxx X. Xxxxxxx, Xx.
If
to
SouthPeak:
0000
Xxxx
Xxxxxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
Attn:
Xxxxx Xxxxxxxx
25
With
a
copy to:
Xxxxxxxxx
Traurig, LLP
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attn:
Xxxx Xxxxxxx
If
to the
Investors:
to
the
addresses set forth on the signature pages hereto.
With
a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attn:
Xxxxx Xxxxxxx
10.5
Expenses.
The
parties hereto shall pay their own costs and expenses in connection herewith.
In
the event that legal proceedings are commenced by any party to this Agreement
against another party to this Agreement in connection with this Agreement or
the
other Transaction Documents, the party or parties which do not prevail in such
proceedings shall pay the reasonable attorneys’ fees and other reasonable
out-of-pocket costs and expenses incurred by the prevailing party in such
proceedings.
10.6
Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of all parties
to
the Agreement. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Shares purchased under this
Agreement at the time outstanding, each future holder of all such Shares, GSPAC
and SouthPeak.
10.7
Publicity.
No
public release or announcement concerning the transactions contemplated hereby
shall be issued by the Investors without the prior consent of GSPAC (which
consent shall not be unreasonably withheld), except as such release or
announcement may be required by law. Prior to the fifth the trading day
immediately following the initial Closing Date, GSPAC shall issue a press
release disclosing the consummation of the transactions contemplated by this
Agreement. No later than the fourth trading day following the Closing Date,
GSPAC will file a Current Report on Form 8-K attaching the press release
described in the foregoing sentence as well as copies of the Transaction
Documents. In addition, GSPAC will make such other filings and notices in the
manner and time required by the SEC. No press release issued by GSPAC shall
reference any Investor without such Investor’s consent, which consent shall not
be unreasonably withheld.
26
10.8
Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law
which
renders any provision hereof prohibited or unenforceable in any respect.
10.9
Entire
Agreement.
This
Agreement, including the Exhibits and the Disclosure Schedule, and the other
Transaction Documents constitute the entire agreement among the parties hereof
with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.
10.10
Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
10.11
Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York
for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served
on
each party hereto anywhere in the world by the same methods as are specified
for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that
any
such suit, action or proceeding brought in any such court has been brought
in an
inconvenient forum. EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.
27
10.12
Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor under any Transaction Document are several and
not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. The decision of each Investor to
purchase Shares pursuant to the Transaction Documents has been made by such
Investor independently of any other Investor. Nothing contained herein or in
any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents.
Each
Investor acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and that no Investor
will be acting as agent of such Investor in connection with monitoring its
investment in the Shares or enforcing its rights under the Transaction
Documents. Each Investor shall be entitled to independently protect and enforce
its rights, including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose. GSPAC acknowledges that each of the Investors
has
been provided with the same Transaction Documents for the purpose of closing
a
transaction with multiple Investors and not because it was required or requested
to do so by any Investor.
[signature
page follows]
28
IN
WITNESS WHEREOF, the parties have executed this Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
GSPAC:
|
|
|||
|
|
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
||||
|
Title:
President and Chief Executive Officer
|
||||
|
|
|
|
||
|
SOUTHPEAK:
|
|
SOUTHPEAK
INTERACTIVE L.L.C.
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxxx
|
|||
|
Name:
Xxxxx X. Xxxxxxxx
|
||||
|
|
|
Title:
Managing Member
|
||
|
INVESTORS:
|
Entity
Name: __________________________________________
|
||
|
By:
______________________________________
|
|||
|
Name:
___________________________________
|
|||
|
Title:
____________________________________
|
|||
|
Address:
|
|||
| _________________________________________ | |||
| _________________________________________ | |||
| _________________________________________ | |||
| _________________________________________ | |||
|
Facsimile: ________________________________
|
|||
|
Attn: ____________________________________
|
|||
|
Tax
ID No.: _______________________________
|
|||
|
Total
Purchase
Price: _______________________
|
|||
[Signature
Page to Purchase Agreement]
29
