SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
Executive
Version
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of November 30, 2006, by and among Java Detour, Inc., a Delaware
corporation (the “Company”),
JDCO,
Inc., a California corporation (“JDCO”),
which
upon the Merger Effective Time (as defined below), became a wholly-owned
subsidiary of the Company, and each purchaser identified on the signature pages
hereto (each, including its successors and assigns, a “Purchaser”
and
collectively the “Purchasers”);
WHEREAS,
the Company (formerly named Media XXX.xxx, Inc.), JDCO, Java Acquisition Co.,
Inc. and certain shareholders of the Company are parties to that certain Merger
Agreement dated as of November 30, 2006 (the “Merger
Agreement”),
pursuant to which, upon the closing of the merger (the “Merger”),
JDCO
shall become a wholly-owned subsidiary of the Company in accordance with the
terms and conditions described in such Merger Agreement (the “Merger
Effective Time”);
WHEREAS,
it is a condition to the closing of the Merger that the Company consummate
a
private placement offering of its securities (the “Offering”)
pursuant to Regulation D promulgated under the Securities Act;
WHEREAS,
the Offering is described in that Confidential Private Placement Memorandum
of
the Company dated November 30, 2006 (the “Offering
Memorandum”);
and
WHEREAS,
as described in the Offering Memorandum, the Offering consists of the sale
of
shares of Common Stock of the Company (the “Shares”),
along
with five (5)-year Investor Warrants (as defined herein) to purchase up to
twenty-five percent (25%) of the Shares offered thereby, and the Purchasers
desire to acquire that number of Shares set forth on the signature page
hereof.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agrees as
follows:
ARTICLE
I.
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms have the meanings indicated in this Section
1.1:
“Action”
shall
have the meaning ascribed to such term in Section 3.1(i).
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person as such
terms are used in and construed under Rule 144. With respect to a Purchaser,
any
investment fund or managed account that is managed on a discretionary basis
by
the same investment manager as such Purchaser will be deemed to be an Affiliate
of such Purchaser.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to Section
2.1.
“Closing
Date”
means
the date when all of the Transaction Documents have been executed and delivered
by the applicable parties thereto, and all conditions precedent to (i) the
Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities have been satisfied or
waived.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
“Common
Stock Equivalents”
means
any securities of the Company which would entitle the holder thereof to acquire
at any time Common Stock, including without limitation, any debt, preferred
stock, rights, options, warrants or other instrument that is at any time
convertible into or exchangeable for, or otherwise entitles the holder thereof
to receive, Common Stock.
“Consulting
Shares”
means
793,403 shares of the Company’s Common Stock issuable to Hunter at the Closing
further to the terms of the Placement Agent Agreement.
“Disclosure
Schedules”
means
the Disclosure Schedules of the Company delivered concurrently
herewith.
“Effective
Date”
means
the date that the Registration Statement is first declared effective by the
Commission.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Exempt
Issuance”
means
the issuance of (a) shares of Common Stock or options to employees, officers
or
directors of the Company pursuant to any stock or option plan or other
arrangement duly adopted by a majority of the non-employee members of the Board
of Directors of the Company or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities upon the
exercise of or conversion of any securities issued hereunder, or convertible
securities, options or warrants issued and outstanding on the date of this
Agreement, provided that such securities have not been amended since the date
of
this Agreement to increase the number of such securities, (c) securities issued
pursuant to strategic transactions with an operating company in a business
synergistic with the business of the Company and in which the Company receives
benefits in addition to the investment of funds or pursuant to acquisitions,
but
shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities and (d) securities issued to consultants
for
services rendered to the Company in non-capital raising transactions in an
amount per individual issuance not to exceed 30,000 shares for particular
services rendered.
“GAAP”
means
generally accepted accounting principles applied on a consistent
basis.
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“Hunter”
means
Hunter World Markets, Inc.
“Intellectual
Property Rights”
shall
have the meaning ascribed to such term in Section 3.1(k).
“Investor
Warrants”
means
the Common Stock Purchase Warrants to purchase shares of the Company’s Common
Stock, in the form of Exhibit
A,
delivered to the Purchasers at the Closing in accordance with Section 2.2(a)(vi)
hereof.
“Legend
Removal Date”
shall
have the meaning ascribed to such term in Section 4.1(c).
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction.
“Material
Adverse Effect”
shall
have the meaning ascribed to such term in Section 3.1(b).
“Material
Permits”
shall
have the meaning ascribed to such term in Section 3.1(i).
“Merger”
shall
have the meaning ascribed to such term in the recitals.
“Merger
Agreement”
shall
have the meaning ascribed to such term in the recitals.
“Per
Share Purchase Price”
equals
$1.00, subject to adjustment for reverse and forward stock splits, stock
dividends, stock combinations and other similar transactions of the Common
Stock
that occur after the date of this Agreement.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Placement
Agent Agreement”
means
that certain Placement Agent Agreement between JDCO and Hunter.
“Placement
Agent Warrants”
means
the Common Stock Purchase Warrants to purchase shares of the Company’s Common
Stock, in the form of Exhibit
B,
delivered to Hunter at the Closing in accordance with Section 2.2(a)(iv) hereof,
which warrants shall be exercisable on or after September 1, 2007 until sixty
(60) months from the date of issuance and have an exercise price equal to $2.00,
subject to adjustment as provided therein. Such warrants shall entitle Hunter
to
acquire up to the number of shares of Common Stock equal to twenty percent
(20%)
of the Shares to be sold in the Offering.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Share
Registration Rights Agreement”
means
the Share Registration Rights Agreement, dated as of the date of this Agreement,
among the Company and each Purchaser, providing for the registration of the
Shares in the form of Exhibit
C
attached
hereto.
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“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Share
Registration Rights Agreement or the Warrant Share Rights Registration Agreement
and covering the resale by the Purchasers of the Shares and Warrant
Shares.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities”
means
the Shares, the Investor Warrants and the Warrant Shares.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
shall
have the meaning ascribed to such term in the recitals.
“Subscription
Amount”
means,
as to each Purchaser, the amounts set forth below such Purchaser’s signature
block on the signature page hereto, in United States dollars and in immediately
available funds.
“Subsidiary”
shall
mean JDCO.
“Trading
Day”
means
a
day on which the Common Stock is traded on a Trading Market.
“Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the New York
Stock Exchange, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC
Bulletin Board or the Pink Sheets.
“Transaction
Documents”
means
this Agreement, the Investor Warrants, the Share Registration Rights Agreement,
the Warrant Share Registration Rights Agreement and any other documents or
agreements executed in connection with the transactions contemplated
hereunder.
“Warrant
Shares”
means
the shares of the Company’s Common Stock issuable upon exercise of the Investor
Warrants.
“Warrant
Share Registration Rights Agreement”
means
the Warrant Share Registration Rights Agreement, dated as of the date of this
Agreement, by and among the Company and each Purchaser, providing for the
registration of the Warrant Shares in the form of Exhibit
D
attached
hereto, such agreement covering all the shares underlying the Placement Agent
Warrants and all other shares of Common Stock underlying other warrants as
well
as all other shares of Common Stock beneficially owned by Hunter and its
affiliates.
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ARTICLE
II.
PURCHASE
AND SALE
2.1 Closing.
On the
Closing Date, each Purchaser shall purchase from the Company, severally and
not
jointly with the other Purchasers, and the Company shall issue and sell to
each
Purchaser, (x) a number of Shares equal to such Purchaser’s Subscription Amount
divided by the Per Share Purchase Price, and (y) the Investor Warrants as
determined pursuant to Section 2.2(a)(vi). Upon satisfaction of the conditions
set forth in Section 2.3, the Closing shall occur at the offices of Xxxx &
Xxxxx, located at 0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, or such other location as the parties shall mutually agree. The aggregate
Subscription Amounts for the Shares sold hereunder shall be up to $10,000,000.
Notwithstanding the foregoing, the payment of the aggregate Subscription Amounts
and disbursement of funds shall be through an escrow with City National Bank,
Los Angeles, California or such other escrow agent as Hunter approves (the
“Escrow
Agent”).
2.2 Deliveries.
(a) On
the
Closing Date, the Company shall deliver or cause to be delivered to each
Purchaser or Hunter, as the case may be, the following:
(i) this
Agreement duly executed by the Company;
(ii) a
copy of
the irrevocable instructions to the Company’s transfer agent instructing the
transfer agent to deliver, on an expedited basis, a certificate evidencing
a
number of Shares equal to such Purchaser’s Subscription Amount divided by the
Per Share Purchase Price, registered in the name of such Purchaser;
(iii) the
Share
Registration Rights Agreement duly executed by the Company;
(iv) the
Warrant Share Registration Rights Agreement duly executed by the
Company;
(v) the
Placement Agent Warrants and certificate(s) evidencing the Consulting
Shares;
(vi) evidence
satisfactory to such Purchaser and its counsel that the Merger has occurred;
and
(vii) an
Investor Warrant, registered in the name of such Purchaser, pursuant to which
such Purchaser shall have the right to acquire up to the number of shares of
Common Stock equal to twenty-five percent (25%) of the Shares to be issued
to
such Purchaser.
(b) On
the
Closing Date, each Purchaser shall deliver or cause to be delivered to the
Company the following:
(i) this
Agreement duly executed by such Purchaser;
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(ii) such
Purchaser’s Subscription Amount by wire transfer of same day funds to the
account as specified in writing by the Company;
(iii) the
Share
Registration Rights Agreement duly executed by such Purchaser; and
(iv) the
Warrant Share Registration Rights Agreement duly executed by such
Purchaser.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) minimum
aggregate Subscription Amounts for the Shares sold hereunder of
$6,000,000;
(ii) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchasers contained herein;
(iii) all
obligations, covenants and agreements of the Purchasers required to be performed
at or prior to the Closing Date shall have been performed; and
(iv) the
delivery by the Purchasers of the items set forth in Section 2.2(b) of this
Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i) minimum
aggregate Subscription Amounts for the Shares sold hereunder of
$6,000,000;
(ii) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(iii) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iv) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement;
(v) there
shall have been no Material Adverse Effect with respect to the Company since
the
date hereof; and
(vi) the
Merger shall have been consummated immediately after the Closing on the terms
set forth in the Merger Agreement, including that all the conditions to Closing
in favor of the Company have been satisfied.
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ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
Except
as set forth under the corresponding section of the Disclosure Schedules which
Disclosure Schedules shall be deemed a part hereof, the Company hereby makes
the
representations and warranties set forth below to each Purchaser:
(a) Subsidiaries.
JDCO is
the only direct or indirect subsidiary of the Company. The Company owns,
directly or indirectly, all of the capital stock of JDCO free and clear of
any
Liens, and all the issued and outstanding shares of capital stock of JDCO are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities.
(b) Organization
and Qualification.
Each of
the Company and JDCO is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of
its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor JDCO is in violation or default
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of
the
Company and JDCO is duly qualified to conduct business and is in good standing
as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, could not have or reasonably be expected to result
in (i) a material adverse effect on the legality, validity or enforceability
of
any Transaction Documents, (ii) a material adverse effect on the results of
operations, assets, business, prospects or financial condition of the Company
and JDCO taken as a whole, or (iii) a material adverse effect on the Company’s
ability to perform in any material respect on a timely basis its obligations
under any Transaction Documents (any of (i), (ii) or (iii), a “Material
Adverse Effect”)
and no
Proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such power and authority
or
qualification.
(c) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no further
action is required by the Company in connection therewith other than in
connection with the Required Approvals. Each of the Transaction Documents has
been (or upon delivery will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law.
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(d) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company,
the issuance and sale of the Shares and the consummation by the Company of
the
other transactions contemplated thereby do not and will not (i) conflict with
or
violate any provision of the Company’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with,
or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any Lien upon any
of
the properties or assets of the Company or JDCO, or give to others any rights
of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or JDCO is a party or by which any property
or asset of the Company or JDCO is bound or affected, or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which the Company or JDCO is subject
(including federal and state securities laws and regulations), or by which
any
property or asset of the Company or JDCO is bound or affected; except in the
case of each of clauses (ii) and (iii), such as could not have or reasonably
be
expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals.
Neither
the Company nor JDCO is required to obtain any consent, waiver, authorization
or
order of, give any notice to, or make any filing or registration with, any
court
or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company or
JDCO of the Transaction Documents, other than (i) filings required pursuant
to
Section 4.4 of this Agreement, (ii) the filing with the Commission of the
Registration Statement, (iii) application(s) to each applicable Trading Market
for the listing of the Shares and Warrant Shares for trading thereon in the
time
and manner required thereby, and (iv) the filing of Form D with the Commission
and such filings as are required to be made under applicable state securities
laws (collectively, the “Required
Approvals”).
(f) Issuance
of the Securities.
The
Shares are duly authorized and, when issued and paid for in accordance with
the
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents. The Warrant
Shares, when issued in accordance with the terms of the Transaction Documents,
will be validly issued, fully paid and nonassessable, free and clear of all
Liens imposed by the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant
to
this Agreement and the Investor Warrants.
(g) Capitalization.
Immediately prior to the Closing and without giving effect to the issuance
of
the Shares or Investor Warrants, the authorized capital stock of the Company
consists of 500,000,000 shares of common stock, $0.001 par value per share,
and
no shares of preferred stock. As of the date hereof, there are 12,275,000 shares
of Common Stock outstanding and no shares of preferred stock outstanding.
Immediately prior to the Closing and without giving effect to the issuance
of
the Shares or Investor Warrants, there will be 12,275,000 shares of Common
Stock
outstanding and no shares of preferred stock outstanding. In addition,
immediately prior to the Closing and without giving effect to the Shares or
Investor Warrants, there will be outstanding options and warrants to purchase
160,000 shares of Common Stock. All of the outstanding shares of capital stock
of the Company are validly issued, fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or
similar rights to subscribe for or purchase securities. No further approval
or
authorization of any stockholder, the Board of Directors of the Company or
others is required for the issuance and sale of the Shares or Investor Warrants.
There are no stockholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a
party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.
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(h) Material
Changes.
Since
September 30, 2006, (i) JDCO has not incurred any liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in JDCO’s financial statements pursuant to GAAP,
(ii) the Company has not altered its method of accounting, and (iii) JDCO has
not declared or made any dividend or distribution of cash or other property
to
its stockholders or purchased, redeemed or made any agreements to purchase
or
redeem any shares of its capital stock.
(i) Litigation.
There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, JDCO or any of their respective properties before or by any court,
arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”)
which
(i) adversely affects or challenges the legality, validity or enforceability
of
any of the Transaction Documents or the Securities or (ii) could, if there
were
an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect as it relates to JDCO. Neither the JDCO, nor any current director
or officer of the Company or JDCO is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving JDCO or any current director or
officer of the Company or JDCO.
(j) Permits.
JDCO
possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
its
business, except where the failure to possess such permits could not have or
reasonably be expected to result in a Material Adverse Effect (“Material
Permits”),
and
JDCO has not received any notice of proceedings relating to the revocation
or
modification of any Material Permit.
(k) Patents
and Trademarks.
JDCO
has, or has JDCO rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, licenses and
other similar rights necessary or material for use in connection with its
business and which the failure to so have could have a Material Adverse Effect
(collectively, the “Intellectual
Property Rights”).
JDCO
has not received a written notice that the Intellectual Property Rights used
by
it violates or infringes upon the rights of any Person. To the knowledge of
the
Company, all such Intellectual Property Rights are enforceable and there is
no
existing infringement by another Person of any of the Intellectual Property
Rights of others.
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(l) Certain
Fees.
Other
than fees payable to Hunter, no brokerage or finder’s fees or commissions are or
will be payable by the Company or JDCO to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement. The Purchasers
shall have no obligation with respect to any fees or with respect to any claims
made by or on behalf of other Persons for fees of a type contemplated in this
Section that may be due in connection with the transactions contemplated by
this
Agreement.
(m) Private
Placement.
Assuming the accuracy of the Purchasers’ representations and warranties set
forth in Section 3.2, no registration under the Securities Act is required
for
the offer and sale of the Securities by the Company to the Purchasers as
contemplated hereby. Neither the Company nor any person acting on behalf of
the
Company has offered or sold any of the Securities by any form of general
solicitation or general advertising. The Company has offered the Securities
for
sale only to the Purchasers and certain other “accredited investors” within the
meaning of Rule 501 under the Securities Act.
(n) Investment
Company.
The
Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Shares, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended
(the “Investment
Company Act”).
The
Company shall conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(o) Registration
Rights.
No
Person has any right to cause the Company to effect the registration under
the
Securities Act of any securities of the Company.
(p) Financial
Statements.
The
Company has made available to the Purchasers JDCO’s (a) audited balance sheets
as at December 31, 2004 and 2005 and related statements of operations, changes
in stockholders equity and cash flows for the years ended December 31, 2004
and
2005, and (b) unaudited balance sheets as at September 30, 2006 and the related
statement of operations, changes in stockholders equity and cash flows for
the
nine months ended September 30, 2006 (collectively, the “Financial
Statements”).
The
Financial Statements (i) were in accordance with the books and records of JDCO,
(ii) are correct and complete, (iii) fairly present the financial position
and
results of operations of JDCO as of the dates indicated, and (iv) are prepared
in accordance with U.S. GAAP (except that unaudited financial statements may
not
be in accordance with GAAP because of the absence of footnotes normally
contained therein
3.2 Representations
and Warranties of the Purchasers.
Each
Purchaser hereby, for itself and for no other Purchaser, represents and warrants
as of the date hereof and as of the Closing Date to the Company as
follows:
(a) Organization;
Authority.
Such
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations thereunder. The execution, delivery and performance by
such
Purchaser of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate or similar action on the part of such
Purchaser. Each of the Transaction Documents to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
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(b) Investment
Intent.
Such
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities
law and is acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or any part
thereof, has no present intention of distributing any of such Securities and
has
no arrangement or understanding with any other persons regarding the
distribution of such Securities (this representation and warranty not limiting
such Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state
securities laws). Such Purchaser is acquiring the Shares hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement
or
understanding, directly or indirectly, with any Person to distribute any of
the
Securities.
(c) Purchaser
Status.
At the
time such Purchaser was offered the Securities, it was, and at the date hereof
it is, and on each date on which it exercises any Investor Warrants, it will
be
either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act. Such
Purchaser is not required to be registered as a broker-dealer under Section
15
of the Exchange Act.
(d) Experience
of Such Purchaser.
Such
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such
investment.
(e) General
Solicitation.
Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
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11
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ARTICLE
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or Rule 144, to the Company
or
to an affiliate of a Purchaser or in connection with a pledge as contemplated
in
Section 4.1(b), the Company may require the transferor thereof to provide to
the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in writing
to
be bound by the terms of this Agreement and shall have the rights of a Purchaser
under this Agreement, the Share Registration Rights Agreement and the Warrant
Share Registration Rights Agreement.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section
4.1(b), of a legend on any of the Securities in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE
SECURITIES ACT.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement,
the Share Registration Rights Agreement and the Warrant Share Registration
Rights Agreement and, if required under the terms of such arrangement, such
Purchaser may transfer pledged or secured Securities to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval of the
Company and no legal opinion of legal counsel of the pledgee, secured party
or
pledgor shall be required in connection therewith. Further, no notice shall
be
required of such pledge. At the appropriate Purchaser’s expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured
party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including, if the Securities are subject to
registration pursuant to the Share Registration Rights Agreement or Warrant
Share Registration Rights Agreement, as applicable, the preparation and filing
of any required prospectus supplement under Rule 424(b)(3) under the Securities
Act or other applicable provision of the Securities Act to appropriately amend
the list of selling stockholders thereunder.
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12
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(c) Certificates
evidencing the Shares and the Warrant Shares shall not contain any legend
(including the legend set forth in Section 4.1(b)), (i) while a registration
statement (including the Registration Statement) covering the resale of such
security is effective under the Securities Act provided that at the time a
Purchaser requests a removal of the legend on any certificate evidencing all
or
any portion of any of the Securities, such Purchaser (or a broker acting on
such
Purchaser’s behalf) provides to the Company (or to the transfer agent on the
Company’s behalf), a representation that any of the Securities, sold or to be
sold by such Purchaser have been, or will be, sold in accordance with the plan
of distribution set forth in the Prospectus and in compliance with the
prospectus delivery requirements under the Securities Act, or (ii) following
any
sale of such Shares or Warrant Shares pursuant to Rule 144, or (iii) if such
Shares or Warrant Shares are eligible for sale under Rule 144(k), or (iv) if
such legend is not required under applicable requirements of the Securities
Act
(including judicial interpretations and pronouncements issued by the Staff
of
the Commission). If all or any portion of an Investor Warrant is exercised
at a
time when there is an effective registration statement to cover the resale
of
the Warrant Shares, such Warrant Shares shall be issued free of all legends.
The
Company agrees that following the Effective Date or at such time as such legend
is no longer required under this Section 4.1(c), it will, no later than three
(3) Trading Days following the delivery by a Purchaser to the Company or the
Company’s transfer agent of a certificate representing Shares or Warrant Shares,
as the case may be, issued with a restrictive legend (such date, the
“Legend
Removal Date”),
deliver or cause to be delivered to such Purchaser a certificate representing
such Shares or Warrant Shares, as the case may be, that is free from all
restrictive and other legends. The Company may not make any notation on its
records or give instructions to any transfer agent of the Company that enlarge
the restrictions on transfer set forth in this Section.
(d) Each
Purchaser, severally and not jointly with the other Purchasers, agrees that
the
removal of the restrictive legend from certificates representing Shares or
Warrant Shares, as the case may be, as set forth in this Section 4.1 is
predicated upon the Company’s reliance that the Purchaser will sell any
Securities pursuant to either the registration requirements of the Securities
Act, including any applicable prospectus delivery requirements, or an exemption
therefrom.
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13
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Nothing
in this Section 4.1 shall require the Company to take any action in violation
of
the Securities Act.
4.2 Furnishing
of Information.
As long
as any Purchaser owns Securities, the Company will use best efforts to timely
file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act. As long as any Purchaser owns Securities,
if the Company is not required to file reports pursuant to the Exchange Act,
it
will prepare and furnish to the Purchasers and make publicly available in
accordance with Rule 144(c) such information as is required for the Purchasers
to sell the Securities under Rule 144. The Company further covenants that it
will take such further action as any holder of Securities may reasonably
request, all to the extent required from time to time to enable such Person
to
sell such Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144.
4.3 Integration.
The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the
sale
of the Securities to the Purchasers or that would be integrated with the offer
or sale of the Securities for purposes of the rules and regulations of any
Trading Market such that it would require shareholder approval prior to the
closing of such other transaction unless shareholder approval is obtained before
the closing of such subsequent transaction.
4.4 Publicity.
The
Company and each Purchaser shall consult with each other in issuing any other
press releases with respect to the transactions contemplated hereby, and neither
the Company nor any Purchaser shall issue any such press release or otherwise
make any such public statement without the prior consent of the Company, with
respect to any press release of any Purchaser, or without the prior consent
of
each Purchaser, with respect to any press release of the Company, which consent
shall not unreasonably be withheld, except if such disclosure is required by
law, in which case the disclosing party shall promptly provide the other party
with prior notice of such public statement or communication. Notwithstanding
the
foregoing, the Company shall not publicly disclose the name of any Purchaser,
or
include the name of any Purchaser in any filing with the Commission or any
regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (i) as required by federal securities law and (ii) to the
extent such disclosure is required by law or Trading Market
regulations.
4.5 Reservation
of Common Stock.
As of
the date hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times, free of preemptive rights, a sufficient
number of shares of Common Stock for the purpose of enabling the Company to
issue the Shares and Warrant Shares pursuant to any exercise of Investor
Warrants, as the case may be, pursuant to this Agreement.
4.6 Equal
Treatment of Purchasers.
No
consideration shall be offered or paid to any person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision constitutes
a
separate right granted to each Purchaser by the Company and negotiated
separately by each Purchaser, and is intended to treat for the Company the
Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or
voting of Securities or otherwise.
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14
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4.7 Subsequent
Equity Sales.
Except
for Exempt Issuances, from the date hereof until the Effective Date, neither
the
Company nor any Subsidiary shall issue shares of Common Stock or Common Stock
Equivalents.
4.8 Delivery
of Shares After Closing.
The
Company shall deliver, or cause to be delivered, the respective Shares purchased
by each Purchaser to such Purchaser within ten (10) Trading Days of the Closing
Date.
4.9 Most
Favored Nations.
If, at
any time and from time to time during the period commencing on the Closing
Date
and ending on the first (1st)
anniversary of the Effective Date, the Company issues additional shares of
Common Stock or Common Stock Equivalents (the “Additional
Shares”)
at a
price or exercise price per share of Common Stock (the “Effective
Price”)
less
than the Per Share Purchase Price, then the Company shall provide notice thereof
to the Purchasers, and, within twenty (20) business days from receipt of such
notice, the Purchasers or any of them shall have the right to purchase
additional shares of Common Stock (the “Purchase
Shares”)
at a
purchase price equal to the par value (the “Purchase
Share Price”)
in
accordance with the following:
|
(a)
|
there
shall be calculated a per share price (the “Adjusted
Price”)
determined by a fraction, the numerator of which shall be $16,000,000
PLUS
the product of the number of Additional Shares multiplied by the
Effective
Price PLUS any prior products of previously issued Additional Shares
multiplied by the applicable Effective Price(s) with respect to such
issuances, and the denominator of which shall be 16,000,000 PLUS
the
number of Additional Shares PLUS any previously issued Additional
Shares.
|
|
(b)
|
The
Purchaser shall be entitled to purchase that number of Purchase Shares
at
the Purchase Price equal to the difference between the product of
the
total dollars paid by Purchaser for shares of common stock hereunder
(the
“Purchaser
Amount”)
divided by the Adjusted Price LESS the product of the Purchaser Amount
divided by the Per Share Purchase
Price.
|
By
way of
example only, if the Company issued 4,000,000 Additional Shares at an Effective
Price of $0.50 per share, and there had been no previous adjustments further
to
this Section 4.9, the Adjusted Price would be $0.90 ($16,000,000 PLUS $2,000,000
divided by 16,000,000 PLUS 4,000,000). If the Purchaser purchased $1,000,000
of
Common Stock further to this Agreement, he/she/it would be entitled to purchase
111,111 Purchase Shares (1,000,000 divided by 0.90 or 1,111,111 shares LESS
1,000,000 divided by 1.00 or 1,000,000 shares).
Notwithstanding
the foregoing, no adjustment will be made in respect of Exempt
Issuances.
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15
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4.10 Board
Nominee.
At
each
of the next two annual meetings of stockholders where directors are elected,
the
Company agrees to place Hunter’s designee on the slate of directors for
nomination to the Board at each such meeting. In addition, the Company agrees
to
cause a proposal to be put in front of the Board of Directors for its
consideration at its next regular meeting following Hunter’s selection of a
designee to elect such designee to a vacancy presently existing as of the date
hereof on the Board of Directors.
ARTICLE
V.
MISCELLANEOUS
5.1 Termination.
This
Agreement may be terminated by any Purchaser, by written notice to the other
parties, if the Closing has not been consummated on or before December 31,
2006;
provided
that no
such termination will affect the right of any party to xxx for any breach by
the
other party (or parties).
5.2 Fees
and Expenses.
The
Company shall deliver, prior to the Closing, a completed and executed copy
of
the Closing Statement, attached hereto as Annex
A.
Except
as otherwise set forth in this Agreement or in the Placement Agent Agreement,
each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance
of
this Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the sale of the Securities.
5.3 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number set forth on the signature
pages attached hereto prior to 6:30 p.m. (Eastern Standard Time) on a Trading
Day, (b) the next Trading Day after the date of transmission, if such notice
or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 6:30 p.m. (Eastern Standard Time) on any Trading Day, (c) the second
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom
such
notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
5.5 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers
holding at least a majority of
the
Shares and Warrant Shares (exercised and unexercised) at such time or, in the
case of a waiver, by the party against whom enforcement of any such waiver
is
sought. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in
the
future or a waiver of any subsequent default or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either
party
to exercise any right hereunder in any manner impair the exercise of any such
right.
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16
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5.6 Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
5.7 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser. Any Purchaser may assign any or all of its rights
under this Agreement to any Person to whom such Purchaser assigns or transfers
any Securities, provided such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions hereof that apply
to
the “Purchasers.”
5.8 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
5.9 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of California, without regard
to
the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of Los Angeles. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Los Angeles, for the adjudication of
any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of any
of
the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
The parties hereby waive all rights to a trial by jury. If either party shall
commence an action or proceeding to enforce any provisions of the Transaction
Documents, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
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17
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5.10 Survival.
The
representations and warranties herein shall survive the Closing and delivery
of
the Shares and Warrant Shares for two (2) years from the date
hereof.
5.11 Execution.
This
Agreement may be executed in two (2) or more counterparts, all of which when
taken together 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, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
5.12 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.13 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement
Securities.
5.14 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Purchasers and the Company
will
be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance
of
any such obligation the defense that a remedy at law would be
adequate.
5.15 Acknowledgement.
The
undersigned acknowledge that City National Bank is acting solely as Escrow
Agent
in connection with the Offering and makes no recommendation with respect
thereto. The Escrow Agent has made no investigation regarding the Offering
or
any entity or person involved in the Offering.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-
18
-
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
Java
Detour, Inc.
|
Address
for Notice:
|
|
|
Java
Detour, Inc.
0000
Xxxxxx Xxxxxx
Xxxxxxxx
X, Xxxxx 000
Xxxxx,
XX 00000
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxxx Xxxxxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
With
a
copy to (which shall not constitute notice):
Xxxxxx
X.
Xxxxxxx, Esq.
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
00000
Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx
Xxxxx
Xxx
Xxxxxxx, XX 00000
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR PURCHASERS FOLLOW]
-
19
-
[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: Absolute Return Europe Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
|
Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $3,500,000
__________
shares of Common Stock
EIN
Number:
-
20
-
[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: European Catalyst Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
|
Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $2,500,000
__________
shares of Common Stock
EIN
Number:
-
21
-
[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: Absolute German Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
|
Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $1,500,000
__________
shares of Common Stock
EIN
Number:
-
22
-
[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: Absolute Large Cap Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
|
Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $300,000
__________
shares of Common Stock
EIN
Number:
-
23
-
[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
SECURITIES
PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: Absolute India Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
|
Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
|
Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $200,000
__________
shares of Common Stock
EIN
Number:
-
24
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[PURCHASER
SIGNATURE PAGES TO JAVA DETOUR, INC.
SECURITIES
PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
|
Name
of Investing Entity: Absolute Octane Fund
/s/
Xxxxxxx Xxxx
|
|
Signature
of Authorized Signatory of Investing Entity:
Xxxxxxx
Xxxx
|
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Name
of Authorized Signatory:
Chief
Investment Officer
|
|
Title
of Authorized Signatory:
|
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Email
Address of Authorized Entity:
|
Address
for Notice of Investing Entity:
c/o
Xxxx
Xxxxxx
Xxxxxx
World Markets, Inc.
0000
Xxxxxxxx Xxxx.
Xxxxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Shares for Investing Entity (if not same as above):
Subscription
Amount: $2,000,000
__________
shares of Common Stock
EIN
Number:
-
25
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Annex
A
CLOSING
STATEMENT
Pursuant
to the attached Securities Purchase Agreement, dated as of the date hereto,
the
purchasers shall purchase up to $10,000,000 of Securities from Java Detour,
Inc., a Delaware corporation (the “Company”).
All
funds will be wired into a trust account maintained by City National Bank.
All
funds will be disbursed in accordance with this Closing Statement.
Disbursement
Date:
November
30, 2006
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I.
PURCHASE PRICE
|
||||
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Gross
Proceeds to be Received in Trust
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$
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10,000,000.00
|
||
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II.
DISBURSEMENTS
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||||
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Payee: Java
Detour, Inc.
|
||||
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Summit
Bank
0000
Xxxxxxxx
Xxxxxxx,
XX 00000
ABA
No.: 000000000
Account
No.: 0120030390
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$
|
6,528,355.58
|
||
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Summit
Bank
0000
Xxxxxxxx
Xxxxxxx,
XX 00000
(510)
839-8800
ABA
No. 000000000
Account
No. 1120 04092
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$
|
1,512,385.42
|
||
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VectraBank
0000
X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, XX 00000
(720)
947-7100
ABA
No. 000000000
Account
No. 4168916601
Beneficiary:
AJ. Xxxxxxx, PC
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$
|
29,590.00
|
||
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Mellon
1st
Business Bank
0000
Xxxxxx xx xxx Xxxxx
Xxx
Xxxxxxx, XX 00000
ABA
No. 000000000
Account
No. 050622428
Beneficiary:
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP General Office
Account
Reference
No.: 0000000.0201
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$
|
120,000.00
|
||
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26
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Bank
of America
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX
ABA
No. 000000000
Account
No. 3750958331
FBO:
RBC Xxxx Xxxxxxxx
Further
Credit: The Hunter Fund LTD
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$
|
560,000.00
|
||
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Payee:
Hunter World Markets, Inc.
|
||||
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Union
Bank of California
Xxxxxxx
Xxxx, XX 00000
ABA
No.: 000000000
Acct
No: 20601 66768
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$
|
1,235,000.00
|
||
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Trust
Account
Mercantile
National Bank
0000
Xxxxxxx Xxxx Xxxx
Xxx
Xxxxxxx, XX 00000-0000
Beneficiary:
Xxxx & Xxxxx Client Trust Account
ABA
No. 000000000
Account
No. 001527290
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$
|
15,000.00
|
||
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Total
Amount Disbursed:
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$
|
10,000,000.00
|
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27
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Schedule
of Purchasers
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Purchaser’s
Name
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Share
Amount
|
Investor
Warrant Amount
|
Purchase
Amount
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|||||||
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Absolute
Return Europe Fund
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3,500,000
|
875,000
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$
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3,500,000
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||||||
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European
Catalyst Fund
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2,500,000
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625,000
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$
|
2,500,000
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||||||
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Absolute
German Fund
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1,500,000
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375,000
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$
|
1,500,000
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||||||
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Absolute
Large Cap Fund
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300,000
|
75,000
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$
|
300,000
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||||||
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Absolute
India Fund
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200,000
|
50,000
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$
|
200,000
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||||||
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Absolute
Octane Fund
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2,000,000
|
500,000
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$
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2,000,000
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||||||
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TOTAL:
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10,000,000
|
2,500,000
|
10,000,000
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