EXHIBIT 4.1
SECURITIES PURCHASE AGREEMENT
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SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of May 14, 2001,
by and among GENUS, INC., a corporation organized under the laws of the State of
California (the "Company"), and the purchasers (the "Purchasers") set forth on
the execution pages hereof (the "Execution Pages").
WHEREAS:
A. The Company and each Purchaser 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 United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "Securities Act").
B. Each Purchaser desires to purchase, severally and not jointly,
subject to the terms and conditions stated in this Agreement, (i) shares of the
Company's common stock, no par value (the "Common Stock"), and (ii) warrants in
the form attached hereto as Exhibit A (including any warrants issued in
replacement thereof, the "Warrants"), to acquire shares of Common Stock. The
shares of Common Stock issuable upon exercise of or otherwise pursuant to the
Warrants are referred to herein as the "Warrant Shares."
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
in the form attached hereto as Exhibit B (the "Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. CERTAIN DEFINITIONS.
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For purposes of this Agreement, the following terms shall have the meanings
ascribed to them as provided below:
"Business Day" shall mean any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded as reported by NTMS (as defined below) is open for trading.
"Closing Price" shall mean for the Common Stock as of any date, the closing
bid price of such security on the principal United States securities exchange or
trading market on which such security is listed or traded as reported by the
Research Service of Nasdaq Trading and Market Services (or a comparable
reporting service of national reputation selected by the Purchasers as provided
in Section 8(n) hereof, and reasonably acceptable to the Company if the Research
Service of Nasdaq Trading and Market Services is not then reporting closing bid
prices of such security) (collectively, "NTMS"), or if the foregoing does not
apply, the last reported sale price of such security in the over-the-counter
market on the electronic bulletin board for such security as reported by NTMS,
or, if no sale price is reported for such security by NTMS, the average of the
bid prices of any market makers for such security as reported in the "pink
sheets" by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.), in
each case for such date or, if such date was not a Trading Day (as defined
below) for such security, on the next preceding day which was a Trading Day. If
the Closing Price cannot be calculated for a share of Common Stock as of either
of such dates on any of the foregoing bases, the Closing Price of such security
on such date shall be the fair market value as determined by an investment
banking firm selected by the Company and reasonably acceptable to the
Purchasers, with the costs of such appraisal to be borne by the Company.
"Investment Amount" shall mean the dollar amount to be invested in the
Company at the Closing pursuant to this Agreement by a Purchaser, as set forth
on the Execution Page hereto executed by such Purchaser.
"Market Price" shall mean, with respect to any date of determination, the
Closing Price on the Trading Day immediately preceding such date of
determination, appropriately adjusted to reflect any stock dividend, stock split
or similar transaction during either such relevant period.
"Material Adverse Effect" shall mean any material adverse effect on (i) the
Securities, (ii) the ability of the Company to perform its obligations hereunder
(including the issuance of the Shares and the Warrants), under the Warrants
(including the issuance of the Warrant Shares) or under the Registration Rights
Agreement or (iii) the business, operations, properties, prospects or financial
condition of the Company and its subsidiaries, taken as a whole.
"Pro Rata Percentage" shall mean, with respect to any Purchaser, a
percentage computed by dividing such Purchaser's Investment Amount by the
aggregate Investment Amounts of all Purchasers.
"Securities" shall mean the Shares, the Warrants and the Warrant Shares.
"Shares" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers at the Closing.
"Trading Day" shall mean a Business Day on which at least 10,000 shares of
Common Stock are traded on the principal United States securities exchange or
trading market on which such security is listed or traded as reported by NTMS.
2. PURCHASE AND SALE OF SHARES AND WARRANTS.
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a. Generally. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section 6
and Section 7 below, each Purchaser shall purchase the number of Shares and
Warrants determined as provided in this Section 2, and the Company shall issue
and sell such number of Shares and Warrants to each Purchaser for such
Purchaser's Investment Amount as provided below. The Company's agreement with
each of the Purchasers is a separate agreement, and the sale of the Securities
to each of the Purchasers is a separate sale.
b. Number of Closing Shares and Warrants; Form of Payment; Closing
Date.
i. On the Closing Date (as defined below), the Company shall sell and
each Purchaser shall buy (A) the number of Shares as is equal to the quotient of
(I) such Purchaser's Investment Amount divided by (II) $3.00 and (B) Warrants
exercisable for a number of shares of Common Stock equal to 50% of the number of
Shares referred to in subclause (A) above. On the Closing Date, each Purchaser
shall pay the Company an amount equal to such Purchaser's Investment Amount.
ii. On the Closing Date, each Purchaser shall pay its Investment Amount
by wire transfer to the Company, in accordance with the Company's written wiring
instructions against delivery of certificates representing the Shares and duly
executed Warrants being purchased by such Purchaser, and the Company shall
deliver such Shares and Warrants against delivery of such Purchaser's Investment
Amount.
iii. Subject to the satisfaction (or waiver) of the conditions thereto
set forth in Section 6 and Section 7 below, the date and time of the sale of the
Shares and the Warrants pursuant to this Agreement (the "Closing") shall be 4:00
pm. San Francisco time on May 14, 2001 or such other date or time as Xxxxx Fargo
Xxx Xxxxxx ("WFVK") and the Company may mutually agree ("Closing Date"). The
Closing shall occur at the San Francisco offices of WFVK, or at such other place
as WFVK and the Company may otherwise mutually agree.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
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Each Purchaser severally and not jointly represents and warrants to the
Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the
Securities for the Purchaser's own account and not with a present view towards
the distribution thereof. The Purchaser understands that the Purchaser must
bear the economic risk of this investment indefinitely, unless the Securities
are registered pursuant to the Securities Act and any applicable state
securities or blue sky laws or an exemption from such registration is available,
and that the Company has no present intention of registering any such Securities
other than as contemplated by the Registration Rights Agreement.
Notwithstanding anything in this Section 3(a) to the contrary, by making the
foregoing representation, the Purchaser does not agree to hold the Securities
for any minimum or other specific term and reserves the right to dispose of the
Securities at any time in accordance with or pursuant to a registration
statement or an exemption from registration under the Securities Act and any
applicable state securities laws.
b. Information. The Purchaser has been furnished all materials
(excluding any material nonpublic information) relating to the business,
finances and operations of the Company and its subsidiaries and materials
relating to the offer and sale of the Securities that have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask questions of
the Company and has received what the Purchaser believes to be satisfactory
answers to any such inquiries. The Purchaser understands that its investment in
the Securities involves a high degree of risk. Neither such inquiries nor any
other due diligence investigation conducted by the Purchaser or its counsel or
any of its representatives shall modify, amend or affect the Purchaser's right
to rely on the Company's representations and warranties contained in Section 4
below.
c. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
d. Authorization; Enforcement. The Purchaser has the requisite power
and authority to enter into and perform its obligations under this Agreement and
to purchase the Shares and the Warrants in accordance with the terms hereof.
This Agreement has been duly and validly authorized, executed and delivered on
behalf of the Purchaser and is a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
e. Transfer or Resale. The Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be transferred unless (a) subsequently registered thereunder, or (b)
the Purchaser shall have delivered to the Company an opinion of counsel
reasonably acceptable to the Company (which opinion shall be in form, substance
and scope customary for opinions of counsel in comparable transactions) to the
effect that the Securities to be sold or transferred may be sold or transferred
under an exemption from such registration, and (ii) neither the Company nor any
other person is under any obligation to register such Securities under the
Securities Act or any state securities laws or to comply with the terms and
conditions of any exemption thereunder, in each case, other than pursuant to the
Registration Rights Agreement.
f. Legends. The Purchaser understands that the Shares and the Warrants
and, until such time as the Shares and Warrant Shares have been registered under
the Securities Act as contemplated by the Registration Rights Agreement or
otherwise may be sold by the Purchaser under Rule 144, the certificates for the
Shares and Warrant Shares may bear a restrictive legend in substantially the
following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state of the United States. The securities
represented hereby may not be offered or sold in the absence of an
effective registration statement for the securities under applicable
securities laws unless offered, sold or transferred under an available
exemption from the registration requirements of those laws.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Security upon which it is
stamped, if (a) the sale of such Security is registered under the Securities Act
or (b) in connection with the resale of such Security, such holder provides the
Company with an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public sale
or transfer of such Security may be made without registration under the
Securities Act or (c) such holder provides the Company with reasonable
assurances that such Security can be sold under Rule 144(k). The Purchaser
agrees to sell all Securities, including those represented by a certificate(s)
from which the legend has been removed, pursuant to an effective registration
statement or under an exemption from the registration requirements of the
Securities Act. The legend shall be removed when such Security is sold pursuant
to an effective registration statement or may be sold by a Purchaser who is not
an "affiliate" of the Company under Rule 144(k).
g. Investor Status. The Purchaser is an "accredited investor" within
the meaning of Rule 501 Regulation D under the Securities Act. In the normal
course of its business, it invests in or purchases securities similar to the
Securities and it has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of purchasing the
Securities.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. Each of the Company and its
subsidiaries is a corporation duly organized and existing under the laws of the
jurisdiction in which it is incorporated, and has the requisite corporate power
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 the nature
of the business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. Schedule 4(a) sets
forth the Company's jurisdiction of incorporation and the name of each of the
Company's subsidiaries and its jurisdiction of incorporation.
b. Authorization; Enforcement. (i) The Company has the requisite corporate
power and authority to enter into and perform its obligations under this
Agreement, the Warrants and the Registration Rights Agreement, to issue and sell
the Shares and the Warrants in accordance with the terms hereof and to issue the
Warrant Shares upon exercise of the Warrants in accordance with the terms of the
Warrants; (ii) the execution, delivery and performance of this Agreement, the
Warrants and the Registration Rights Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby
(including, without limitation, the reservation for issuance and issuance of the
Shares and the issuance of the Warrants and the reservation for issuance and
issuance of the Warrant Shares) have been duly authorized by the Company's Board
of Directors and no further consent or authorization of the Company, its Board
of Directors or its shareholders is required; (iii) this Agreement has been duly
executed and delivered by the Company; and (iv) this Agreement constitutes, and,
upon execution and delivery by the Company and the other parties thereto to the
extent required of the Registration Rights Agreement and the Warrants, such
agreements will constitute, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity).
c. Capitalization. The capitalization of the Company and each of its
subsidiaries as of the date hereof is set forth on Schedule 4(c), including the
authorized capital stock, the number of shares issued and outstanding, the
number of shares issuable and reserved for issuance pursuant to the Company's
stock option plans, the number of shares issuable and reserved for issuance
pursuant to securities exercisable for, or convertible into or exchangeable for
any shares of capital stock. All of such outstanding shares of the Company's
capital stock have been, or upon issuance will be, validly issued, fully paid
and nonassessable. Except as set forth on Schedule 4(c), no shares of capital
stock of the Company (including the Shares and the Warrant Shares) or any of the
subsidiaries are subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances. Except for the
Securities and as disclosed in Schedule 4(c), as of the date of this Agreement,
(i) there are no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever to which the Company or any of
the subsidiaries is a party relating to the issuance by the Company or any of
its subsidiaries of securities or rights convertible into or exercisable or
exchangeable for, any shares of capital stock of the Company or any of its
subsidiaries, 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 such subsidiaries, and (ii) there are no agreements or arrangements under
which the Company or any of its subsidiaries is obligated to register the sale
of any of its or their securities under the Securities Act (except the
Registration Rights Agreement). Except as set forth on Schedule 4(c), there are
no securities or instruments containing antidilution or similar provisions that
may be triggered by the issuance of the Securities in accordance with the terms
of this Agreement, the Warrants or the Registration Rights Agreement and the
holders of the securities and instruments listed on such Schedule 4(c) have
waived any rights they may have under such antidilution or similar provisions in
connection with the issuance of the Securities in accordance with the terms of
this Agreement, the Warrants or the Registration Rights Agreement. The Company
has made available to each Purchaser true and correct copies of the Company's
Articles of Incorporation as in effect on the date hereof ("Articles of
Incorporation"), the Company's By-laws as in effect on the date hereof (the
"By-laws") and all other instruments and agreements governing securities
convertible into or exercisable or exchangeable for capital stock of the
Company, except for stock options granted under any benefit plan of the Company.
d. Issuance of Shares. The Shares are duly authorized and when issued
and paid for in accordance with the terms hereof, will be validly issued, fully
paid and non-assessable, and free from all taxes, liens, claims and encumbrances
(other than those imposed through acts or omissions of the Purchaser thereof),
and will not be subject to preemptive rights or other similar rights of
shareholders of the Company and will not impose personal liability upon the
holder thereof. The Warrant Shares are duly authorized and reserved for
issuance, and, upon exercise of the Warrants in accordance with the terms
thereof, will be validly issued, fully paid and non-assessable and free from all
taxes and liens, claims and encumbrances (other than those imposed through acts
or omissions of the Purchaser thereof), and will not be subject to preemptive
rights or other similar rights of shareholders of the Company and will not
impose personal liability upon the holder thereof.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Warrants by the Company,
and the consummation by the Company of the transactions contemplated hereby and
thereby (including, without limitation, the reservation for issuance and
issuance of the Shares and the Warrant Shares and the issuance of the Warrants)
will not (i) conflict with or result in a violation of the Articles of
Incorporation or By-laws or (ii) conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of any agreement, indenture or instrument to which 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 (assuming the accuracy of the
representations and warranties of the Purchasers) the United States federal and
state securities laws and regulations) 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, with respect to clause (ii), for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect). Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation, By-laws and other organizational
documents and neither the Company nor any of its subsidiaries is in default (and
no event has occurred which, with notice or lapse of time or both, would put the
Company or any of its subsidiaries in default) under, nor has there occurred any
event giving others (with notice or lapse of time or both) any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its subsidiaries is a
party, except for actual or possible violations, defaults or rights as would
not, individually or in the aggregate, have a Material Adverse Effect. The
businesses of the Company and its subsidiaries are not being conducted in
violation of any law, ordinance or regulation of any governmental entity, except
for actual or possible violations, if any, the sanctions for which either singly
or in the aggregate would not have a Material Adverse Effect. Except as
specifically contemplated by this Agreement and as required under the Securities
Act and any applicable state securities laws, the Company is not required to
obtain any consent, approval, authorization or order of, or make any filing or
registration with, any court or governmental agency or any regulatory or self
regulatory agency in order for it to execute, deliver or perform any of its
obligations under this Agreement (including without limitation the issuance and
sale of the Shares and Warrants as provided hereby), the Warrants (including
without limitation the issuance of the Warrant Shares) or the Registration
Rights Agreement, in each case in accordance with the terms hereof or thereof.
The Company is not in violation of the listing requirements of The Nasdaq Stock
Market and does not reasonably anticipate that the Common Stock will be delisted
by The Nasdaq Stock Market in the foreseeable future based on its rules (and
interpretations thereof) as currently in effect.
f. SEC Documents; Financial Statements. Since January 1, 2000, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and has filed all
registration statements and other documents required to be filed by it with the
SEC pursuant to the Securities 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 herein as the "SEC Documents"). The Company has made available to
each Purchaser true and complete copies of the SEC Documents, except for the
exhibits and schedules thereto and the documents incorporated therein. As of
their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act or the Securities Act, as the case may be,
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 in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Any statements made in any such SEC Documents that are or
were required to be updated or amended under applicable law have been so updated
or amended. As of their respective dates, the financial statements of the
Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC applicable with respect thereto. Such financial statements have been
prepared in accordance with United States 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 not
include footnotes or may be condensed or summary statements) and fairly present
in all material respects the consolidated financial position of the Company and
its subsidiaries as of the dates thereof and the results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments). Except as set
forth in the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of such SEC Documents and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in such
SEC Documents, which liabilities and obligations referred to in clauses (i) and
(ii), individually or in the aggregate, would not have a Material Adverse
Effect.
g. Absence of Certain Changes. Except as disclosed in the SEC
Documents, since December 31, 2000, there has been no change or development
which individually or in the aggregate has had or could have a Material Adverse
Effect.
h. Absence of Litigation. Except as disclosed in Schedule 5(h) or 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 Company, threatened
against or affecting the Company, or any of its subsidiaries, or any of their
directors or officers in their capacities as such which would have a Material
Adverse Effect.
i. Intellectual Property. The Company and each of its subsidiaries
owns or is licensed to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, permits, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) and other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as now being conducted
and as proposed to be conducted. Neither the Company nor any of its
subsidiaries has received written notice that it is infringing upon or in
conflict with any third party Intangibles. Neither the Company nor any of its
subsidiaries has entered into any consent, indemnification, forbearance to xxx
or settlement agreements with respect to the validity of the Company's or such
subsidiary's ownership or right to use its Intangibles. The Intangibles are
valid and enforceable, and no registration relating thereto has lapsed, expired
or been abandoned or canceled or is the subject of cancellation or other
adversarial proceedings, and all applications therefor are pending and in good
standing. The Company has complied with its contractual obligations relating to
the protection of the Intangibles used pursuant to licenses. To the Company's
knowledge, no person is infringing on or violating the Intangibles owned or used
by the Company.
j. Environment. Except as disclosed in the SEC Documents (i) there is no
environmental liability, nor factors likely to give rise to any environmental
liability, affecting any of the properties of the Company or any of its
subsidiaries that, individually or in the aggregate, would have a Material
Adverse Effect and (ii) neither the Company nor any of the subsidiaries has
violated any environmental law applicable to it now or previously in effect,
other than such violations or infringements that, individually or in the
aggregate, have not had and will not have a Material Adverse Effect.
k. Title. The Company and each of its subsidiaries has good title in
fee simple to all real property and good title to all personal property owned by
it which is material to its business, free and clear of all liens, encumbrances
and defects except for such defects in title that, individually or in the
aggregate, could not have a Material Adverse Effect. Any real property and
facilities held under lease by the Company or any of its subsidiaries are held
by the Company or such subsidiary under valid, subsisting and enforceable leases
with such exceptions which have not had and will not have a Material Adverse
Effect.
l. Insurance. The Company and its subsidiaries maintain such insurance
relating to their business, operations, assets, key-employees and officers and
directors as is appropriate to their business, assets and operations, in such
amounts and against such risks as are customarily carried and insured against by
owners of comparable businesses, assets and operations, and such insurance
coverages will be continued in full force and effect to and including the
Closing Date other than those insurance coverages in respect of which the
failure to continue in full force and effect could not reasonably be expected to
have a Material Adverse Effect.
m. Acknowledgment Regarding the Purchasers' Purchase of the Securities.
The Company acknowledges and agrees that no Purchaser is acting as a financial
advisor or is acting as a fiduciary of the Company (or in any similar capacity)
with respect to this Agreement or the transactions contemplated hereby, and the
relationship between the Company and the Purchasers is "arms length" and that
any statement made by any Purchaser or any of its representatives or agents in
connection with this Agreement and the transactions contemplated hereby is not
advice or a recommendation and is merely incidental to such Purchaser's purchase
of Securities and has not been relied upon by the Company, its officers or
directors in any way. The Company further represents to the Purchaser that the
Company's decision to enter into this Agreement has been based solely on an
independent evaluation by the Company and its representatives.
n. No Brokers. The Company has not engaged any person to which or to
whom brokerage commissions, finder's fees, financial advisory fees or similar
payments are or will become due in connection with this Agreement or the
transactions contemplated hereby except for WFVK and Xxxxxxx Securities Inc.,
whose commissions and fees will be paid by the Company.
o. Tax Status. The Company and each of its subsidiaries has made or
filed all material federal, state and local income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company or the applicable subsidiary has
set aside on its books provisions 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 provisions adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no material unpaid taxes claimed to be due by the
taxing authority of any jurisdiction. The Company has not executed a waiver
with respect to any statute of limitations relating to the assessment or
collection of any federal, state or local tax. None of the Company's tax
returns have been or is being audited by any taxing authority.
p. No General Solicitation. Neither the Company nor any person
participating on the Company's behalf in the transactions contemplated hereby
has conducted any "general solicitation" or "general advertising" as such terms
are used in Regulation D, with respect to any of the Securities being offered
hereby.
q. Securities Laws. Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security
under circumstances that would require registration of the Securities being
offered hereby under the Securities Act or cause this offering of Securities to
be integrated with any prior offering of securities of the Company for purposes
of the Securities Act. The offer, sale and delivery of shares of Common Stock
upon exercise of the Warrants will be exempt from the registration requirements
of Section 5 of the Securities Act. Assuming the truth and accuracy of the
representations and warranties of the Purchasers set forth in Section 3 of this
Agreement, the Purchasers will not be statutory underwriters within the meaning
of Section 2(a) 11 of the Securities Act.
r. Form S-3 Eligibility. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. There exist no facts or circumstances (including without
limitation any required approvals or waivers of any circumstances that may delay
or prevent the obtaining of accountant's consents) that would prohibit or delay
the preparation and filing of a registration statement on Form S-3 with respect
to the Registrable Securities (as defined in the Registration Rights Agreement).
s. Disclosure. All information relating to or concerning the Company
and its subsidiaries set forth in this Agreement or provided to the Purchaser
pursuant to Section 3(b) hereof and otherwise in connection with the
transactions contemplated hereby is true and correct in all material respects
and the Company has not omitted to state any material fact necessary in order to
make the statements made herein or therein, in light of the circumstances under
which they were made, not misleading. No event or circumstance has occurred or
exists with respect to the Company or its subsidiaries or their businesses,
properties, operations, prospects or financial conditions, which has not been
publicly disclosed but, under applicable law, rule or regulation, would be
required to be disclosed by the Company in a registration statement filed on the
date hereof by the Company under the Securities Act with respect to a primary
issuance of the Company's securities. The Company has not disclosed or
provided, and without such Purchaser's consent thereto, will not hereafter
disclose or provide to any Purchaser, any information that (i) if disclosed,
would, or could reasonably be expected to have, a material effect on the price
of the Common Stock or (ii) according to applicable law, rule or regulation,
should have been disclosed publicly by the Company but which has not been
disclosed.
5. COVENANTS.
---------
a. Satisfaction of Conditions. The parties shall use their best
efforts to satisfy in a timely manner each of the conditions set forth in
Section 6 and Section 7 of this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D and to provide a copy
thereof to each Purchaser promptly after such filing. The Company shall, on or
before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchasers
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States or obtain exemption therefrom, and shall provide
evidence of any such action so taken to each Purchaser on or prior to the
Closing Date.
c. Reporting Status. So long as a Purchaser beneficially owns any
Securities or has the right to acquire any Securities pursuant to this
Agreement, the Company shall timely file all reports required to be filed with
the SEC pursuant to the Exchange Act, and shall not terminate its status as an
issuer required to file reports under the Exchange Act even if the Exchange Act
or the rules and regulations thereunder would permit such termination.
d. Use of Proceeds. The Company shall use the net proceeds from the
sale of the Shares and the Warrants for the purposes set forth on Schedule 5(d),
but in no event shall the Company use such net proceeds to repurchase any
outstanding securities of the Company.
e. Expenses. At the Closing, the Company shall reimburse WFVK for the
out-of-pocket expenses reasonably incurred by WFVK and its affiliates and
advisors in connection with the negotiation, preparation, execution and delivery
of this Agreement, the Registration Rights Agreement, the Warrants and the other
agreements to be executed in connection herewith, including, expenses incurred
in conducting WFVK's and its affiliates' and advisors' reasonable due diligence
and WFVK's and its affiliates' reasonable attorneys' fees and expenses up to a
maximum of $30,000.
f. Financial Information. For a period of three (3) years following
the Closing, the Company agrees to send to each Purchaser (i) within ten days
after the filing with the SEC, to the extent not available through the SEC's
XXXXX system, a copy of its Annual Report on Form 10-K, its Quarterly Reports on
Form 10-Q, its proxy and information statements and any Current Reports on Form
8-K and (ii) within one day after release, copies of all press releases issued
by the Company or any of its subsidiaries, if any.
g. Reservation of Shares. The Company has and shall 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 Shares as provided in
Section 2 hereof, and the full exercise of the Warrants and the issuance of the
Warrant Shares in connection therewith and as otherwise required hereby and by
the Warrants in accordance with the Registration Rights Agreement. The Company
shall not reduce the number of shares of Common Stock reserved for issuance
under this Agreement (except as a result of the issuance of the Shares
hereunder), the Warrants (except as a result of the issuance of the Warrant
Shares upon the exercise of the Warrants) or the Registration Rights Agreement,
without the consent of the Purchasers.
h. Listing. On the Closing Date, the Company shall have applied for
the listing of the Shares and Warrant Shares, in each case, upon each national
securities exchange and automated quotation system, if any, upon which shares of
Common Stock are then listed or quoted and shall maintain, so long as any other
shares of Common Stock shall be so listed, such listing of all Shares from time
to time issuable hereunder and all Warrant Shares from time to time issuable
upon exercise of the Warrants. The Company shall use its best efforts to
include its shares of Common Stock in The Nasdaq Stock Market at the earliest
practical date and, in any event, by the date the first registration statement
covering the resale of the Shares is declared effective by the Securities and
Exchange Commission and will comply in all respects with the Company's
reporting, filing and other obligations under the bylaws or rules of The Nasdaq
Stock Market.
i. Additional Financings. The Company agrees that during the period
beginning on the date hereof and ending on the date which is one hundred eighty
(180) days following the Closing Date (the "Lock-Up Period"), the Company will
not, without the prior written consent of the Purchasers or their designees,
contract with any party to obtain additional financing (an "Additional
Financing"). If the Purchasers consent to such Additional Financing, the
Company will not conduct any Additional Financing during the Lock-Up Period
unless it shall have first delivered to the Purchaser, at least ten (10)
Business Days prior to the closing of such Additional Financing, written notice
describing the proposed Additional Financing, including the terms and conditions
thereof, and providing the Purchasers and their affiliates an option during the
ten (10) Business Day period following delivery of such notice to purchase any
or all of the securities being offered in the Additional Financing on the same
terms as contemplated by such Additional Financing. Such option shall be
exercised by each applicable Purchaser giving written notice to the Company
within such period of its agreement to buy a specified amount of the offered
securities. Closing of such sale shall be contemporaneous with the closing of
the offering with investors other than the Purchasers (or, if there are no other
such investors, on a date specified by the Company), provided that the Company
shall provide written notice to each applicable Purchaser at least five (5)
Business Days prior to any such closing. To the extent that the Purchasers, in
the aggregate, elect to purchase more than all of such securities, the amount
that each Purchaser shall be entitled to purchase shall be pro rated based on
the Purchaser's Pro Rata Percentage. To the extent that the terms of an
Additional Financing are changed in a manner that is at least partially
favorable to prospective investors, the Company shall notify the Purchasers of
all changes in such terms and the Purchasers shall have another ten (10)
Business Day option to purchase on the revised terms and otherwise in accordance
with the provisions hereof. The limitations referred to in this Section 5(i)
shall not apply to (i) any transaction involving issuances of securities as
consideration in a merger, consolidation or acquisition of assets, or in
connection with any strategic partnership, collaboration or joint venture (the
primary purpose of which is not to raise capital), or as consideration for the
acquisition of a business, product or license by the Company, (ii) the issuance
of securities pursuant to widely distributed underwritten public offering, (iii)
the issuance of securities upon exercise or conversion of the Company's options,
warrants or other convertible securities outstanding as of the date hereof as
set forth in Schedule 4(c) or issued pursuant to this Agreement, (iv) the
issuance of warrants or shares of Common Stock upon exercise thereof to WFVK or
its assigns at the Closing in consideration of its services to the Company as
placement agent for the financing contemplated by this Agreement, (v) the grant
of additional options or warrants, or the issuance of additional securities,
under any duly authorized Company stock option, stock purchase or restricted
stock plan for the benefit of the Company's employees, consultants or directors;
or (vi) any financing with no equity or equity-linked securities made to the
Company by a financial institution engaged in the business of lending money such
as a bank, trust company, insurance company or other institutional lender.
j. No Integrated Offerings. The Company shall not make any offers or
sales of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the
Securities Act or cause this offering of Securities to be integrated with any
other offering of securities by the Company for any purposes, including for
purposes of any shareholder approval provision applicable to the Company or its
securities.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
----------------------------------------------------
The obligation of the Company hereunder to issue and sell Shares and
Warrants to a Purchaser at the Closing hereunder is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions thereto;
provided, however, that 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 applicable Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Company.
b. The applicable Purchaser shall have delivered such Purchaser's
Investment Amount in accordance with Section 2(b) above.
c. The representations and warranties of the applicable Purchaser shall
be true and correct as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a specific date, which representations and warranties shall be true and
correct as of such date), and the applicable Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the applicable Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND
WARRANTS.
------------------------------------------------------------------------
The obligation of each Purchaser hereunder to purchase Shares and Warrants
to be purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
a. The Company shall have executed the signature pages to this
Agreement and the Registration Rights Agreement, and delivered the same to the
Purchaser.
b. The Company shall have delivered to the Purchaser duly executed
certificates representing the number of Shares and duly executed Warrants as
provided in Section 2(b) above.
c. The Shares shall be authorized for quotation on The Nasdaq Stock
Market and trading in the Common Stock or The Nasdaq Stock Market generally
shall not have been suspended or be under threat of suspension by the SEC or any
governing body of The Nasdaq Stock Market.
d. The representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior
to the Closing Date. The Purchaser shall have received a certificate, executed
on behalf of the Company by its Chief Financial Officer, dated as of the Closing
Date, to the foregoing effect and attaching true and correct copies of the
resolutions adopted by the Company's Board of Directors authorizing the
execution, delivery and performance by the Company of its obligations under this
Agreement, the Warrants and the Registration Rights Agreement.
e. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
f. The Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, relating to the matters set forth in
Exhibit C attached hereto.
g. From the date of this Agreement through the Closing Date, there
shall not have occurred any Material Adverse Effect.
h. The Company shall have provided advance notice to The Nasdaq Stock
Market of the issuance of the Shares if so required by the rules applicable
thereto.
8. GOVERNING LAW MISCELLANEOUS.
-----------------------------
a. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Each of the parties agrees
that service of process upon such party mailed by first class mail to the
address set forth in Section 8(f) shall be deemed in every respect effective
service of process upon such party in any such suit or proceeding. Nothing
herein shall affect the right of any Purchaser to serve process in any other
manner permitted by law. Each of the parties, agrees that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
b. Counterparts. This Agreement may be executed in two or more
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. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
c. Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. 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 or
the validity or enforceability of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor the Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and, by the Purchasers as
provided in Section 8(n) hereof. Any waiver by the Purchasers, on the one hand,
or the Company, on the other hand, of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision of or any breach of any other provision of this
Agreement. The failure of the Purchasers, on the one hand, or the Company, on
the other hand to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
f. Notices. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
If to the Company:
Genus, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
If to the Purchaser, to the address set forth under the Purchaser's name on the
Execution Page hereto executed by such Purchaser, with a copy to:
Xxxxx Fargo Xxx Xxxxxx
000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Managing Director
Each party hereto may from time to time change its address or facsimile number
for notices under this Section 8 by giving at least ten (10) days' prior written
notice of such changed address or facsimile number, in the case of the
Purchasers to the Company, and in the case of the Company to all of the
Purchasers.
g. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchasers.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by any other person.
i. Survival. The representations and warranties of the Company and the
agreements and covenants of the Company shall survive the Closing
notwithstanding any due diligence investigation conducted by or on behalf of the
Purchasers. Moreover, none of the representations and warranties made by the
Company herein shall act as a waiver of any rights or remedies a Purchaser may
have under applicable federal or state securities laws. The Company agrees to
indemnify and hold harmless each Purchaser and each of such Purchaser's
officers, directors, employees, partners, members, agents and affiliates for
loss or damage relating to the Securities purchased hereunder arising as a
result of or related to any breach by the Company of any of its representations
or covenants set forth herein, including advancement of expenses as they are
incurred.
j. 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.
k. Termination. In the event that the Closing Date shall not have
occurred on or before May 31, 2001, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date.
Notwithstanding any termination of this Agreement, any party not in breach of
this Agreement shall preserve all rights and remedies it may have against
another party hereto for a breach of this Agreement prior to or relating to the
termination hereof.
l. Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement, the Registration
Rights Agreement and the Warrants. As such, the language used herein and therein
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be applied against any
party to this Agreement, the Registration Rights Agreement or the Warrants.
m. Equitable Relief. Each party acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by such party of the provisions of this Agreement, that the
other parties shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond or
other security being required.
n. Determinations. Except as otherwise expressly provided herein, all
consents, approvals and other determinations to be made by the Purchasers
pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement prior to the Closing Date to be binding upon a
Purchasers shall be made by such Purchaser and except as otherwise expressly
provided herein, all consents, approvals and other determinations (other than
amendments to the terms and provisions of this Agreement) to be made by the
Purchasers pursuant to this Agreement and all waivers and amendments to or of
any provisions in this Agreement after the Closing Date shall be made by
Purchasers (excluding Purchasers who are affiliates of the Company) that have
invested more than fifty percent (50%) of the aggregate Investment Amounts
invested by all Purchasers (excluding Purchasers who are affiliates of the
Company).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
[____________________________]
By:
Name:
Title:
Investment Amount: $_____________
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Special Situations Private Equity Fund, L.P
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
Investment Amount: $1,079,668
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused
this Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Special Situations Technology Fund, L.P
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
Investment Amount: $ 719,793
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Special Situations Fund III, L.P
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
Investment Amount: $ 2,024,418
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Special Situations Cayman Fund, L.P
By: /s/ Austin Marke
Name: Austin Marke
Title: MD
Investment Amount: $ 674,805
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:
Investment Amount: $ 111,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxx Family LP
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: General Partner
Investment Amount: $ 106,800
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxx X. Xxxxxxxxx
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Investor
Investment Amount: $ 222,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
XXXX Partners LP
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: President
Investment Amount: $ 152,409
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Gelfenbein Family LP
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: President
Investment Amount: $ 222,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxx X. Xxxxxxxxx
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title:
Investment Amount: $ 222,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxxx Capital
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title:
Investment Amount: $ 93,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Forus Investments, Inc.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
Investment Amount: $ 67,500
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxxx Xxxxxxxx III
By: /s/ Xxxxxxx Xxxxxxxx III
Name: Xxxxxxx Xxxxxxxx III
Title:
Investment Amount: $ 33,198
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:
Investment Amount: $ 135,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxx X. Xxxxxxxxxx
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title:
Investment Amount: $ 103,500
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Delaware Charter
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:
Investment Amount: $ 45,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxx Xxxxxx
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title:
Investment Amount: $ 45,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Bedford Oak Partners, LP
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:
Investment Amount: $ 735,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
BayStar Capital, L.P.
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
Investment Amount: $ 375,000
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
BayStar International, LTD.
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
Investment Amount: $ 124,998
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
COMPANY:
GENUS, INC.
By: /s/ Xxxxxxx X. X. Xxxxx
Name: Xxxxxxx X. X. Xxxxx
Title: Chairman, President and CEO
The Purchaser:
Xxxxxxx X. Xxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title:
Investment Amount: $ 333,246
Residence: __________________
Address:
Telephone No.: ( )
Telecopy No.: ( )
Attention:
with copies of all notices to:
______________________________
______________________________
______________________________
______________________________
Telephone No.: ( ) _________
Telecopy No.: ( ) _________
Attention: ______________________
