STOCK PURCHASE AGREEMENT
AGREEMENT dated as of the 18th day of August, 2006 (this "Agreement"), by
and between Azzurri Group, LLC, a Florida limited liability company, with an
address at 0000 XX 00xx Xxxxxx, Xxxx Xxxxx, XX 00000 ("Investor"), and Magnitude
Information Systems, Inc., a Delaware corporation with an address at 000 Xxxxx
00, Xxxxxxx, XX 00000 ("Magnitude").
WITNESSETH:
WHEREAS, Magnitude desires to sell and Investor desires to purchase (i)
twelve million five hundred thousand (12,500,000) shares (the "Shares") of
common stock, par value $.0001 ("Common Stock") of Magnitude, and (ii) warrants
(the "Warrants") to purchase an additional six million two hundred fifty
thousand (6,250,000) shares of Magnitude's Common Stock (the "Warrant Shares")
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged,
IT IS AGREED:
4. Recitals. The parties hereby adopt as part of this Agreement each of the
recitals which is set forth above in the WHEREAS clauses, and agree that such
recitals shall be binding upon the parties hereto by way of contract and not
merely by way of recital or inducement and such WHEREAS clauses are hereby
confirmed and ratified as being accurate by each party as to itself.
5. Securities.
Simultaneously with the execution of this Agreement, Magnitude shall issue
and deliver the Shares to Investor. On February 18, 2007, Magnitude shall issue
to Investor the Warrants in the form annexed hereto and made a part hereof as
Exhibit "A". If the Investor has not received the Warrants on or prior to March
5, 2007, Magnitude agrees to increase the number of shares of Common Stock which
may be purchased pursuant to the exercise of the Warrants by one (1%) percent
for each business day that said issuance and delivery is delayed.
6. Purchase Price.
The total aggregate purchase price for the Shares and the Warrants (the
"Purchase Price") shall be two hundred fifty thousand ($250,000.00) dollars.
8. Magnitude's Representations, Warranties and Covenants. Magnitude represents,
warrants and covenants that:
A. Corporate Status. Magnitude is a corporation duly organized, validly
existing and in good standing pursuant to the laws of the State of Delaware,
with all requisite power and authority to carry on its business as presently
conducted in all jurisdictions where presently conducted, to enter into this
Agreement and to consummate the transactions set forth in this Agreement.
B. Authority. Magnitude has the full right, power and legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement constitutes the valid and legally binding obligation of
Magnitude, enforceable in accordance with its terms and conditions. The
execution and delivery of this Agreement by Magnitude and the consummation by it
of the transactions contemplated hereby have been duly approved and authorized
by all necessary action of the Board of Directors of Magnitude, and no further
authorization shall be necessary on the part of Magnitude for the performance
and consummation by Magnitude of the transactions contemplated hereby. The
execution, delivery and performance of this Agreement in accordance with its
terms does not and shall not require approval, consent or authorization of any
third party, including any governmental agency or authority or any political
subdivision thereof.
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C. Compliance with the Law and Other Instruments. The business and
operations of Magnitude have been and are being conducted in accordance with all
applicable laws, rules, and regulations of all authorities which affect
Magnitude or its properties, assets, businesses or prospects. The performance of
this Agreement shall not result in any breach of, or constitute a default under,
or result in the imposition of any lien or encumbrance upon any property of
Magnitude or cause an acceleration under any arrangement, agreement or other
instrument to which Magnitude is a party or by which any of its assets are
bound. In addition, the performance of this Agreement shall not trigger
additional rights in any third parties, including, but not limited to, any
anti-dilution rights in Magnitude. Magnitude has performed all of its
obligations which are required to be performed by it pursuant to the terms of
any such agreement, contract, or commitment.
D. No Approval. No approval of any third party including, but not limited
to, any governmental authority is required in connection with the consummation
of the transactions set forth in this Agreement.
E. Survival. The covenants, representations and warranties made by
Magnitude in or in connection with this Agreement shall survive the execution
and delivery of this Agreement and the consummation of the transactions
described herein, it being agreed and understood that each of such covenants,
representations and warranties is of the essence to this Agreement and the same
shall be binding upon Magnitude and inure to Investor and its successors and
assigns.
F. Complete Disclosure. Magnitude has no knowledge that any covenant,
representation or warranty of Magnitude which is contained in this Agreement or
in a writing furnished or to be furnished pursuant to this Agreement or in
Magnitude's filings with the Securities and Exchange Commission contains or
shall contain any untrue statement of a material fact, omits or shall omit to
state any material fact which is required to make the statements which are
contained herein or therein, not misleading.
G. Notification of an Event. If, any event occurs or any event known to
Magnitude relating to or affecting Magnitude shall occur as a result of which
(i) any provision of this Article "4" of this Agreement at that time shall
include an untrue statement of a fact, or (ii) this Article "4" of this
Agreement shall omit to state any fact necessary to make the statements herein,
in light of the circumstances under which they were made, not misleading,
Magnitude shall immediately notify Magnitude pursuant to Paragraph "C" of
Article "10" of this Agreement.
H. No Defense. It shall not be a defense to a suit for damages for any
misrepresentation or breach of a covenant, representation or warranty that
Investor knew or had reason to know that any covenant, representation or
warranty in this Agreement contained untrue statements.
9. Investor's Representations, Warranties and Covenants. Investor represents,
warrants and covenants that:
A. Status. Investor is a limited liability company duly organized, validly
existing and in good standing pursuant to the laws of the State of Florida, with
all requisite power and authority to carry on its business as presently
conducted in all jurisdictions where presently conducted, to enter into this
Agreement and to consummate the transactions set forth in this Agreement.
B. Authority. Investor has the full right, power and legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement constitutes the valid and legally binding obligation of
Investor, enforceable in accordance with its terms and conditions. The execution
and delivery of this Agreement by Investor and the consummation by it of the
transactions contemplated hereby have been duly approved and authorized by all
necessary action of the Board of Directors of Investor, and no further
authorization shall be necessary on the part of Investor for the performance and
consummation by Investor of the transactions contemplated hereby. The execution,
delivery and performance of this Agreement in accordance with its terms does not
and shall not require approval, consent or authorization of any third party,
including any governmental agency or authority or any political subdivision
thereof.
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C. Compliance with the Law and Other Instruments. The performance of this
Agreement shall not result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any property of
Investor or cause an acceleration under any arrangement, agreement or other
instrument to which Investor is a party or by which any of its assets are bound.
Investor has performed all of its obligations which are required to be performed
by it pursuant to the terms of any such agreement, contract, or commitment.
D. Accredited Investor. Investor is an "accredited investor" as that term
is defined in Rule 501(a) of Regulation D promulgated under the Securities Act
of 1933, as amended (the "Act"), including, but not limited to, an entity in
which each of the equity owners qualifies under one or more of the following:
(1) a net worth exceeding one million ($1,000,000) dollars, either individually
or jointly with his or her spouse, (2) an income exceeding two hundred thousand
($200,000) dollars in each of the two most recent years, with a reasonable
expectation of reaching the same income level in the current year, or (3) a
joint income with his or her spouse exceeding three hundred thousand ($300,000)
dollars in each of the two most recent years, with a reasonable expectation of
reaching the same joint income level in the current year.
E. Securities. Investor acknowledges that the receipt of the Shares by
Investor is for its own account, is for investment purposes only, and is not
with a view to, nor for offer or sale in connection with, the distribution of
the Shares. Investor understands that none of the Shares have been registered
under the Act or the securities laws of any state and, therefore, cannot be sold
unless they are subsequently registered under the Act and any applicable state
securities laws or exemptions from registration thereunder are available.
Investor further understands that only Magnitude can take action to register the
Shares.
F. Economic Risk. The Investor is able to bear the economic risk of an
investment in the Shares, Warrants and Warrant Shares (the "Securities") for an
indefinite period of time, including the risk of total loss of such investment,
and the Investor recognizes that an investment in the Securities involves a high
degree of risk. The Investor understands that the Securities have not been
registered under the Act, or the securities laws of any state and, therefore,
cannot be sold unless they are subsequently registered under the Act and any
applicable state securities laws or exemptions from registration thereunder are
available. The Investor further understands that only Magnitude can take action
to register the Securities.
G. Restrictive Legend. Investor understands that the Shares shall bear the
following restrictive legend until the Shares are registered pursuant to
Paragraph "A" of Article "6" of this Agreement:
"These Shares have not been registered under the Securities Act of
1933, as Amended, having been acquired for investment purposes only and
not with a view to distribute. They may not be sold or offered for in
absence of an effective registration statement as to the Shares under the
Securities Act of 1933, as Amended, or an opinion of counsel satisfactory
to the corporation and an exemption from the Securities Act of 1933, as
Amended, is available and that such registration is not required, or in
the alternative that such Shares may be sold under Rule 144, as
promulgated by the Securities and Exchange Commission of the United
States."
H. No Approvals. No approval of any third party including, but not limited
to, any governmental authority is required in connection with the consummation
of the transactions set forth in this Agreement.
I. Survival. The covenants, representations and warranties made by
Investor in or in connection with this Agreement shall survive the execution and
delivery of this Agreement and the consummation of the transactions described
herein, it being agreed and understood that each of such covenants,
representations and warranties is of the essence to this Agreement and the same
shall be binding upon Investor and inure to Magnitude and its successors and
assigns.
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J. Complete Disclosure. Investor has no knowledge that any covenant,
representation or warranty of Investor which is contained in this Agreement or
in a writing furnished or to be furnished pursuant to this Agreement contains or
shall contain any untrue statement of a material fact, omits or shall omit to
state any material fact which is required to make the statements which are
contained herein or therein, not misleading.
K. Notification of an Event. If, any event occurs or any event known to
Investor relating to or affecting Investor shall occur as a result of which (i)
any provision of this Article "5" of this Agreement at that time shall include
an untrue statement of a fact, or (ii) this Article "5" of this Agreement shall
omit to state any fact necessary to make the statements herein, in light of the
circumstances under which they were made, not misleading, Investor shall
immediately notify Magnitude pursuant to Paragraph "C" of Article "10" of this
Agreement.
L. No Defense. It shall not be a defense to a suit for damages for any
misrepresentation, or breach of, a covenant, representation or warranty that
Magnitude knew or had reason to know that any covenant, representation or
warranty in this Agreement contained untrue statements.
M. No Reliance. The Investor's decision to enter into this Agreement was
based entirely upon its own research, and not upon any representations made to
the Investor by Magnitude.
10. Registration.
A. Magnitude shall, without cost or expense to the Investor, file for the
registration of all of Investor's Shares and Warrant Shares within ninety (90)
days after the date of execution of this Agreement. If Magnitude has not filed
for the registration of the Investor's Shares and Warrant Shares within ninety
(90) days after the date of execution of this Agreement, Magnitude shall issue
an additional forty five thousand (45,000) shares of Common Stock to the
Investor for each subsequent business day until such filing is made. Once such
filing is made, Magnitude shall use good faith efforts to make the registration
effective. If the registration is not effective within ninety (90) days after
filing, Magnitude shall issue an additional forty five thousand (45,000) shares
of Common Stock to the Investor for each subsequent business day until the
registration becomes effective.
Subject to filing post-effective amendments, updating its financial statement
disclosures, Magnitude shall utilize its best efforts to keep the registration
effective until such time as Investor has sold its Shares and Warrant Shares or
the Shares and Warrant Shares are eligible to be transferred without restriction
pursuant to the provisions of Rule 144(k) which was promulgated by the
Securities and Exchange Commission pursuant to ss.4(1) of the Act. Magnitude
agrees to provide an opinion of counsel within five (5) business days with
respect to any sales of the Shares by Investor if such sale is permissible under
Rule 144(k). If Magnitude fails to timely provide or approve a legal opinion
pursuant to this Paragraph "A" of this Article "6" of this Agreement, Magnitude
agrees to pay Investor five hundred ($500.00) dollars per day for each day that
said opinion or approval is delayed. Magnitude acknowledges that it would be
extremely difficult or impracticable to determine Investor's actual damages and
costs resulting from the delay in providing an opinion or approval for said sale
of securities and the inclusion herein of any such late charges or fees are the
agreed upon liquidated damages representing a reasonable estimate of those
damages and costs and do not constitute a penalty.
B. All expenses in connection with preparing and filing any registration
statement under Paragraph "A" of this Article "6" of this Agreement shall be
borne in full by Magnitude; provided, however, that Investor shall pay any and
all underwriting commissions and expenses and the fees and expenses of any legal
counsel selected by Investor to represent it with respect to the sale of
Securities.
11. Covenants of Magnitude. Magnitude covenants and agrees as follows:
A. Magnitude shall continuously remain a reporting company under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and will file
with the SEC on a timely basis all reports, statements and other materials
required to be filed by Magnitude to remain a reporting company under the
Exchange Act.
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B. The Common Stock of Magnitude shall continuously be listed on a
national securities exchange, or traded on the NASDAQ National Market, the
NASDAQ Small Cap Market, or the Over the Counter Bulletin Board (the "OTCBB").
C. Magnitude shall, at its cost, provide the appropriate opinion letters
to be issued by Magnitude's counsel in compliance with the provisions of Rule
144 which was promulgated by the Securities and Exchange Commission pursuant to
ss.4(1) of the Act, as amended, with respect to the transfer or sale of the
securities of Magnitude owned by Investor, if such transfer or sale is
permissible under Rule 144. Magnitude shall provide the appropriate opinion
letters within five (5) business days of request via e-mail notification or
facsimile notification by Investor. Furthermore, Magnitude shall notify its
transfer agent that Xxxxx & Fraade, P.C. is authorized to issue said opinion
letters. Magnitude shall also promptly provide any and all necessary information
and authorization to said transfer agent so that said transfer agent may
immediately honor such opinion and permit the transfer or sale of such
securities.
D. If Magnitude fails to timely provide or approve a legal opinion
pursuant to Paragraph "C" of this Article "7" of this Agreement, Magnitude
agrees to pay Investor five hundred ($500.00) dollars per day for each day that
said opinion or approval is delayed. Magnitude acknowledges that it would be
extremely difficult or impracticable to determine Investor's actual damages and
costs resulting from the delay in providing an opinion or approval for said sale
of securities and the inclusion herein of any such late charges or fees are the
agreed upon liquidated damages representing a reasonable estimate of those
damages and costs and do not constitute a penalty.
E. Magnitude shall increase its number of authorized shares within six (6)
months after the date of execution of this Agreement, so that it shall have
sufficient authorized and unissued shares to issue all of the Warrant Shares.
8. Legal Fees. Magnitude shall pay to Xxxxx & Fraade, P.C., the Investor's
counsel, all of its legal fees and expenses with respect to representing the
Investor with respect to the stock purchase which is the subject of this
Agreement. Xxxxx & Fraade, P.C. has agreed with Magnitude to accept, and
Magnitude has agreed to pay to Xxxxx & Fraade, P.C. for its services, the
following:
(A). Magnitude shall issue a warrant to Xxxxx & Fraade, P.C. to acquire
one hundred eighty seven thousand five hundred (187,500) shares of Common Stock
of Magnitude, with such warrant having an exercise price of $.0001 per share.
(B). Magnitude shall issue a warrant to Xxxxx & Fraade, P.C. to acquire
ninety three thousand seven hundred fifty (93,750) shares of Common Stock of
Magnitude, in the same form as the Warrants, with such warrant having an
exercise price of $.05 per share.
9. Finder's Fee. Magnitude shall pay a finder's fee of twenty five thousand
($25,000) dollars to H.I.S. LLC in connection with this transaction pursuant to
a separate agreement. This finder's fee may only be paid out of (A) Magnitude's
proceeds from subsequent sales of its Common Stock, (B) exercise prices paid to
Magnitude by holders of warrants to acquire its Common Stock and/or (C) future
profits of Magnitude, and may not be paid out of any funds which Magnitude
receives pursuant to this Agreement, including, but not limited to, exercise
prices paid to Magnitude by the Investor for the exercise of Warrants.
10. Miscellaneous.
O. Headings. Headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
P. Enforceability. If any provision which is contained in this Agreement
should, for any reason, be held to be invalid or unenforceable in any respect
under the laws of any jurisdiction, such invalidity or unenforceability shall
not affect any other provision of this Agreement and this Agreement shall be
construed as if such invalid or unenforceable provision had not been contained
herein.
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Q. Notices. Any notice or other communication required or permitted
hereunder shall be sufficiently given if sent by (i) mail by (a) certified mail,
postage prepaid, return receipt requested and (b) first class mail, postage
prepaid (ii) overnight delivery with confirmation of delivery or (iii) facsimile
transmission with an original mailed by first class mail, postage prepaid,
addressed as follows:
To Investor: Azzurri Group, LLC
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn:
Fax No:
With a copy to: Xxxxx & Fraade, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxx, Esq.
Fax No.: (000) 000-0000
To Magnitude: Magnitude Information Systems, Inc.
000 Xxxxx 00
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Fax No.: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
00-00 X Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
Fax No: (000) 000-0000
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If all of the methods of notice set forth in this
Paragraph "C" of this Article "10" of this Agreement are impossible for any
reason, notice shall be in writing and personally delivered to the aforesaid
addresses. Each notice or communication shall be deemed to have been given as of
the date so mailed or delivered as the case may be; provided, however, that any
notice sent by facsimile shall be deemed to have been given as of the date so
sent if a copy thereof is also mailed by first class mail on the date sent by
facsimile. If the date of mailing is not the same as the date of sending by
facsimile, then the date of mailing by first class mail shall be deemed to be
the date upon which notice is given; provided further, however, that any notice
sent by overnight delivery shall be deemed to have been given as of the date of
delivery.
R. Governing Law; Disputes. This Agreement shall in all respects be
construed, governed, applied and enforced in accordance with the laws of the
State of New York applicable to contracts made and to be performed therein,
without giving effect to the principles of conflicts of law. The parties hereby
consent to and irrevocably and exclusively submit to personal jurisdiction over
each of them by the Courts of the State of New York in any action or proceeding,
irrevocably waive trial by jury and personal service of any and all process and
specifically consent that in any such action or proceeding, any service of
process may be effectuated upon any of them by certified mail, return receipt
requested, in accordance with Paragraph "C" of this Article "10" of this
Agreement. In the event Investor commences legal action to enforce any of the
terms of this Agreement, Magnitude shall pay all legal fees and costs incurred
by Investor with respect to this Agreement.
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S. Construction. Each of the parties hereto hereby further acknowledges
and agrees that (i) each has been advised by counsel during the course of
negotiations; (ii) each counsel has had significant input in the development of
this Agreement and (iii) this Agreement shall not, therefore, be construed more
strictly against any party responsible for its drafting regardless of any
presumption or rule requiring construction against the party whose attorney
drafted this agreement.
T. Entire Agreement. This Agreement and all documents and instruments
referred to herein (i) constitute the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and thereof, and (ii) are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder. Each party hereto agrees that, except for the representations and
warranties contained in this Agreement, neither party makes any other
representations or warranties, and each hereby disclaims any other
representations and warranties made by itself or any of its officers, directors,
employees, agents, financial and legal advisors or other representatives, with
respect to the execution and delivery of this Agreement or the transactions
contemplated hereby, notwithstanding the delivery or disclosure of any
documentation or other information with respect to any one or more of the
foregoing.
U. Further Assurances. The parties agree to execute any and all such other
further instruments and documents, and to take any and all such further actions
which are reasonably required to effectuate this Agreement and the intents and
purposes hereof.
V. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
W. Non-Waiver. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver of any other or subsequent breach.
X. Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Y. Facsimile Signatures. Any signature which is delivered via facsimile
shall be deemed to be an original and have the same force and effect as if such
facsimile signature were the original thereof.
Z. Modifications. This Agreement may not be changed, modified, extended,
terminated or discharged orally, except by a written agreement specifically
referring to this Agreement which is signed by all of the parties to this
Agreement.
AA. Exhibits. All Exhibits annexed or attached to this Agreement are
incorporated into this Agreement by reference thereto and constitute an integral
part of this Agreement.
BB. Severability. The provisions of this Agreement shall be deemed
separable. Therefore, if any part of this Agreement is rendered void, invalid or
unenforceable, such rendering shall not affect the validity or enforceability of
the remainder of this Agreement; provided, however, that if the part or parts
which are void, invalid or unenforceable as aforesaid shall substantially impair
the value of this whole Agreement to any party, that party may cancel, and
terminate this Agreement by giving written notice to the other party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Azzurri Group, LLC
By:
--------------------------------
Name:
Title:
Magnitude Information Systems, Inc.
By:
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
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