EXHIBIT 10.2
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made as of the
5th day of August, 2003, by and between Skyframes, Inc., a Utah corporation (the
"Company"), and Ocean Drive SF Associates, LLC, a New York limited liability
company and its participants and assignees (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to the Investor, and the Investor
desires to purchase from the Company, (a) a convertible promissory note in the
principal amount of $250,000 (the "Note"), in the form attached as EXHIBIT A
hereto, and (b) a warrant (the "Warrant"), in the form attached as EXHIBIT B
hereto, to purchase 250,000 shares of the Company's common stock, $0.10 par
value per share (the "Common Stock"), pursuant to the provisions of this
Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. PURCHASE AND SALE OF NOTE AND WARRANT.
1.1 ISSUANCE AND SALE OF 8% CONVERTIBLE PROMISSORY NOTE AND WARRANT.
Subject to the terms and conditions of this Agreement, the Investor agrees to
purchase at the Closing (as hereafter defined), and the Company agrees to issue
and sell to the Investor at the Closing, the Note and the Warrant, for an
aggregate purchase price of Two Hundred Fifty Thousand ($250,000) Dollars (the
"Purchase Price").
1.2 CLOSING.
(a) The purchase and sale of the Note and the Warrant (the
"Closing") shall take place at the offices of Xxxxxxx Xxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx Xxx Xxxx 00000, at 10:00 a.m., on August 5, 2003, or at such
other time and place as the Company and the Investor mutually agree upon orally
or in writing.
(b) At the Closing, the Company shall deliver to the Investor,
the Note and the Warrant, against payment of the Purchase Price by check or wire
transfer payable to the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investor, except as set forth on a Schedule of
Exceptions to Representations and Warranties attached hereto as EXHIBIT C (the
"Schedule of Exceptions"), the following:
2.1 SUBSIDIARIES. The Company does not presently own or
control, directly or indirectly, any interest in any other corporation,
association, or other business entity except as disclosed in the SEC Reports (as
hereinafter defined) (each, a "Subsidiary" and collectively, the
"Subsidiaries"). Unless the context requires otherwise, all references herein to
the "Company" shall refer to the Company and its Subsidiaries. The Company is
not a party to any joint venture, partnership, or similar arrangement.
2.2 ORGANIZATION, GOOD STANDING, AND QUALIFICATION. The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Utah, and has all requisite corporate power and
authority to carry on its business as now conducted. The Subsidiaries are duly
organized in their respective jurisdictions of organization, validly existing
and in good standing in such respective jurisdictions and each has the power and
authority to carry on its respective business as now conducted. The Company and
the Subsidiaries are duly qualified to transact business and are in good
standing in each jurisdiction in which the failure so to qualify would have a
Material Adverse Effect (as hereafter defined) on the Company's business or
properties.
2.3 CAPITALIZATION AND VOTING RIGHTS. The number of
authorized, issued and outstanding capital stock of the Company is set forth in
EXHIBIT C. Except as disclosed in EXHIBIT C, no securities of the Company or any
Subsidiary are entitled to preemptive or similar rights, nor is any holder of
securities of the Company or any Subsidiary entitled to preemptive or similar
rights arising out of any agreement or understanding with the Company or any
Subsidiary by virtue of any of the Transaction Documents (defined hereinafter).
Except as disclosed in EXHIBIT C, there are no outstanding options, warrants,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, except as a result of the purchase and sale of the
Securities, or rights or obligations convertible into or exchangeable for, or
giving any Person (as defined below) any right to subscribe for or acquire, any
shares of Common Stock, or contracts, commitments, understandings, or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. To the knowledge of the Company,
except as specifically disclosed in the SEC Reports (as defined below) or in
EXHIBIT C, no Person or group of related Persons beneficially owns (as
determined pursuant to Rule 13d-3 promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), or has the right to acquire by
agreement with or by obligation binding upon the Company, beneficial ownership
of in excess of 5% of the Common Stock. A "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.
2.4 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors, and shareholders necessary for the
authorization, execution, and delivery of this Agreement, the Registration
Rights Agreement (as hereafter defined), the Note and the Warrant (the
"Transaction Documents"), the performance of all obligations of the Company
hereunder and thereunder and the authorization, issuance (or reservation for
issuance), and delivery of the Note and the Warrant being sold hereunder, the
Common Stock issuable upon conversion of the Note and the Common Stock issuable
upon exercise of the Warrant, has been taken or will be taken prior to the
Closing, and the Transaction Documents constitute valid and legally binding
obligations of the Company, enforceable in accordance with their respective
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) to the extent the indemnification provisions contained in
the Transaction Documents may be limited by applicable federal or state laws.
2.5 VALID ISSUANCE OF NOTE, WARRANT AND COMMON STOCK.
(a) The Note and the Warrant are being purchased by
the Investor hereunder, when issued, sold, and delivered in accordance with the
terms hereof for the consideration provided for herein, will be duly and validly
issued, and, based in part upon the representations of the Investor in this
Agreement, will be issued in compliance with all applicable federal and state
securities laws. The Common Stock issuable upon conversion of the Note and upon
exercise of the Warrant have been duly and validly reserved for issuance and,
upon issuance in accordance with the terms of the Note and the Warrant,
respectively, shall be duly and validly issued, fully paid and nonassessable,
and issued in compliance with all applicable securities laws, as presently in
effect, of the United States and each of the states whose securities laws govern
the issuance of the Note and the Warrant hereunder.
(b) All outstanding shares of Common Stock of the
Company are duly and validly authorized and issued, fully paid and
nonassessable, and were issued in compliance with all applicable federal and
state securities laws.
2.6 FILINGS, CONSENTS AND APPROVALS. Neither the Company nor
any Subsidiary 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 of the
Transaction Documents, other than (i) applicable Blue Sky filings and (ii) in
all other cases where the failure to obtain such consent, waiver, authorization
or order, or to give such notice or make such filing or registration could not
have or result in, individually or in the aggregate, a material adverse effect
on the results or operations of the Company and its Subsidiaries taken as a
whole ("Material Adverse Effect").
2.7 LITIGATION. There is no action, suit, proceeding, claim or
investigation pending or, to the knowledge of the Company, currently threatened
against the Company which questions the validity of the Transaction Documents,
or the right of the Company to enter into any of them, or to consummate the
transactions contemplated hereby or thereby, or which might result, either
individually or in the aggregate, in any material adverse changes in the assets,
condition, affairs, or prospects of the Company, financially or otherwise, or
any change in the current equity ownership of the Company, nor is the Company
aware that there is any basis for the foregoing. The foregoing includes, without
limitation, actions, pending or threatened (or any basis therefor known to the
Company) involving the prior employment of any of the Company's employees, their
use in connection with the Company's business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers. The Company is not a party or subject
to the provisions of any order, writ, injunction, judgment, or decree of any
court or government agency or instrumentality.
2.8 PATENTS AND TRADEMARKS. The Company has sufficient title
and ownership of all patents, trademarks, service marks, trade names,
copyrights, trade secrets, information, inventions, proprietary rights, and
processes necessary for its business as now conducted without any conflict with
or infringement of the rights of others. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business would violate any of the patents, trademarks, service marks, trade
names, copyrights, or trade secrets, or other proprietary rights of any other
person or entity. The Company is not aware that any of its employees, officers,
or consultants are obligated under any contract (including licenses, covenants,
or commitments of any nature) or other agreement, or subject to any judgment,
decree, or order of any court or administrative agency, that would interfere
with the use of such employee's, officer's, or consultant's commercially
reasonable efforts to promote the interests of the Company or that would
conflict with the Company's business as conducted. Neither the execution nor
delivery of the Transaction Documents, nor the carrying on of the Company's
business by the employees of the Company, nor the conduct of the Company's
business, will, to the Company's knowledge, conflict with or result in a breach
of the terms, conditions, or provisions of, or constitute a default under, any
contract, covenant, or instrument under which any of such employees, officers or
consultants are now obligated.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any provisions of its Articles of Incorporation or
Bylaws or, to its knowledge, of any instrument, judgment, order, writ, decree,
mortgage, indenture, lease, license or contract to which it is a party or by
which it is bound or, to its knowledge, of any provision of federal, state, or
local statute, rule, or regulation applicable to the Company. The execution,
delivery, and performance of the Transaction Documents and the consummation of
the transactions contemplated thereby will not result in any such violation or
be in conflict with or constitute, with or without the passage of time and
giving of notice, either a default under any such provision, instrument,
judgment, order, writ, decree or contract, or an event which results in the
creation of any lien, charge, or encumbrance upon any assets of the Company or
the suspension, revocation, impairment, forfeiture, or nonrenewal of any
material permit, license, authorization, or approval applicable to the Company,
its business or operations, or any of its assets or properties.
2.10 PERMITS. The Company has all material franchises,
permits, licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which could materially and
adversely affect the business, properties, prospects, or financial condition of
the Company and believes it can obtain, without undue burden or expense, any
similar authority for the conduct of its business as planned to be conducted.
The Company is not in default in any material respect under any of such
franchises, permits, licenses, or other similar authority.
2.11 COMPLIANCE WITH LAWS. The conduct of business by the
Company and each Subsidiary as presently and proposed to be conducted is not
subject to continuing oversight, supervision, regulation or examination by any
governmental official or body of the United States or any other jurisdiction
wherein the Company or any Subsidiary conducts or proposes to conduct such
business, except such regulation as is applicable to commercial enterprises
generally. Neither the Company nor any of the Subsidiaries has received any
notice of any violation of or noncompliance with, any Federal, state, local or
foreign laws, ordinances, regulations and orders (including, without limitation,
those relating to environmental protection, occupational safety and health,
Federal securities laws, equal employment opportunity, consumer protection,
credit reporting, "truth-in-lending", and warranties and trade practices)
applicable to its business or to the business of any Subsidiary, the violation
of, or noncompliance with, which would have a materially adverse effect on
either the Company's business or operations, or that of any Subsidiary, and the
Company knows of no facts or set of circumstances which would give rise to such
a notice.
2.12 DISCLOSURE. This Agreement, the Note, the Warrant and any
other statements or certificates made or delivered in connection herewith or
therewith do not contain any untrue statement of a material fact or omits to
state a material fact necessary to make the statements herein or therein not
misleading.
2.13 TITLE TO PROPERTY AND ASSETS. The Company owns its
property and assets free and clear of all mortgages, liens, loans, pledges,
security interests, claims, equitable interests, charges, and encumbrances,
except such encumbrances and liens which arise in the ordinary course of
business and do not materially impair the Company's ownership or use of such
property or assets. With respect to the property and assets it leases, the
Company is in compliance with such leases and, to its knowledge, holds a valid
leasehold interest free of any liens, claims, or encumbrances.
2.14 TAX RETURNS, PAYMENTS, AND ELECTIONS. The Company has
timely filed all tax returns and reports as required by law, and all such
returns and reports are true and correct in all material respects. The Company
has paid all taxes and other assessments due, if any, except those contested by
it in good faith which are listed in the Schedule of Exceptions. The provision
for taxes of the Company as shown in the Financial Statements is adequate for
taxes due or accrued as of the date thereof. The Company has not elected
pursuant to the Internal Revenue Code of 1986, as amended ("Code"), to be
treated as a Subchapter S corporation or a collapsible corporation pursuant to
Section 341(f) or Section 1362(a) of the Code.
2.15 INSURANCE. The Company has in full force and effect fire
and casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed, and the Company has insurance against other
hazards, risks, and liabilities to persons and property to the extent and in the
manner customary for companies in similar businesses similarly situated.
2.16 SEC REPORTS; FINANCIAL STATEMENTS. The Company has filed
all reports required to be filed by it under the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date
hereof (or such shorter period as the Company was required by law to file such
material) (the foregoing materials being collectively referred to herein as the
"SEC Reports" and, together with the Schedule of Exceptions to this Agreement
the "Disclosure Materials") on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. All material
agreements to which the Company is a party or to which the property or assets of
the Company are subject have been filed as exhibits to the SEC Reports to the
extent required. The financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in
effect at the time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved ("GAAP"), except as may be otherwise specified
in such financial statements or the notes thereto, and fairly present in all
material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments. Except as set
forth on EXHIBIT A or except as specifically disclosed in the SEC Reports, since
______ (a) there has been no event, occurrence or development that has had or
that could reasonably be expected to have or result in a Material Adverse
Effect, (b) the Company has not incurred any liabilities (contingent or
otherwise) other than (x) liabilities incurred in the ordinary course of
business consistent with past practice and (y) liabilities not required to be
reflected in the Company's financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (c) the Company has not
altered its method of accounting or the identity of its auditors and (d) the
Company has not declared or made any payment or distribution of cash or other
property to its stockholders or officers or directors (other than in compliance
with existing Company stock or stock option plans) with respect to its capital
stock, or purchased, redeemed (or made any agreements to purchase or redeem) any
shares of its capital stock. Additionally, since the adoption of the
Xxxxxxxx-Xxxxx Act of 2002 (the "New Act"), the Company has complied in all
material respects with the laws, rules and regulation under the New Act.
2.17 NO CONFLICT OF INTEREST. The Company is not indebted in
excess of $5,000, directly or indirectly, to any of its employees, officers or
directors or to their respective spouses or children, in any amount whatsoever
other than in connection with expenses or advances of expenses incurred in the
ordinary course of business or relocation expenses of employees, officers and
directors, nor is the Company contemplating such indebtedness as of the date of
this Agreement. To the Company's knowledge, none of said employees, officers or
directors, or any member of their immediate families, is directly or indirectly
indebted to the Company (other than in connection with purchases of the
Company's stock) or have any direct or indirect ownership interest in any firm
or corporation with which the Company is affiliated or with which the Company
has a business relationship or any firm or corporation which competes with the
Company, nor is the Company contemplating such indebtedness as of the date of
this Agreement, except that employees, officers, directors and/or shareholders
of the Company may own stock in publicly traded companies (not in excess of 1%
of the outstanding capital stock thereof) which may compete with the Company. To
the Company's knowledge, no employee, shareholder, officer or director, or any
member of their immediate families, is, directly or indirectly, interested in
any material contract with the Company, nor does any such person own, directly
or indirectly, in whole or in part, any material tangible or intangible property
that the Company uses or contemplates using in the conduct of its business. The
Company is not a guarantor or indemnitor of any indebtedness of any other
Person.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants that:
3.1 AUTHORIZATION. The Transaction Documents constitute valid
and legally binding obligations of the Investor enforceable in accordance with
their terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Note and the
Warrant to be purchased by the Investor and the Common Stock issuable upon
conversion of the Note and the Common Stock issuable upon exercise of the
Warrant (collectively, the "Securities") will be acquired for investment for the
Investor's own account and not with a view to the resale or distribution of any
part thereof. The Investor represents that it has full power and authority to
enter into this Agreement.
3.3 DISCLOSURE OF INFORMATION. The Investor acknowledges that
it has received all the information that it has requested relating to the
purchase of the Note and the Warrant. The Investor further represents that it
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Note and the Warrant.
The foregoing, however, does not limit or modify the representations and
warranties of the Company in Section 2 of this Agreement or the right of the
Investor to rely thereon.
3.4 ACCREDITED INVESTOR. The Investor is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the Securities and
Exchange Commission (the "SEC"), as presently in effect.
3.5 RESTRICTED SECURITIES. Investor understands that the Note
and the Warrant that it is purchasing is characterized as "restricted
securities" under the federal securities laws inasmuch as it is being acquired
from the Company in a transaction not involving a public offering, and that
under such laws and applicable regulations such securities may be resold without
registration under the Securities Act of 1933, as amended (the "Act"), only in
certain limited circumstances. In this connection, the Investor represents that
it is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.6 LEGENDS. It is understood that the certificates evidencing
the Note and the Warrant (and the Common Stock issuable upon conversion and
exercise thereof, respectively) may bear one or all of the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS
SET FORTH IN THIS CERTIFICATE. THE SECURITIES REPRESENTED
HEREBY MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT
REGISTRATION UNDER THE ACT."
4. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING. The obligations
of the Investor under subsection 1.1(a) of this Agreement is subject to the
fulfillment on or before the Closing of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 hereof shall be true on and as
of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of such Closing.
4.2 PERFORMANCE. The Company shall have performed and complied
with all agreements, obligations, and conditions contained in this Agreement
that are required to be performed or complied with by it on or before the
Closing.
4.3 COMPLIANCE CERTIFICATE. The President of the Company shall
deliver to the Investor, at the Closing, a certificate certifying that the
conditions specified in Sections 4.1 and 4.2 have been fulfilled and stating
that there has been no adverse change in the business, affairs, prospects,
operations, properties, assets, or condition of the Company since ________.
4.4 PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Investor and its counsel, and they shall have received all such
counterpart original and certified or other copies of such documents as they may
reasonably request.
4.5 OPINION OF COMPANY COUNSEL. The Investor shall have
received from The Law Office of Xxxx X. Wykidal, an opinion, dated as of the
Closing, in form attached hereto as EXHIBIT D.
4.6 GOOD STANDING CERTIFICATES. The Company and the
Subsidiaries shall have delivered to the Investor, dated as of a date within
five (5) business days of the Closing, certificates issued by the proper
authorities in each of their respective jurisdictions of organization to the
effect that each of them is legally existing and in good standing.
4.7 SECRETARY'S CERTIFICATE. The Company shall have delivered
to the Investor a certificate executed by the Secretary of the Company dated as
of the Closing certifying the following matters: (a) the resolutions adopted by
the Company's Board of Directors and shareholders relating to the transactions
contemplated by this Agreement; (b) the Articles of Incorporation and Bylaws of
the Company; and (c) such other matters as Investor's counsel may reasonably
request.
4.8 DELIVERY OF NOTE AND WARRANT. The Company shall have
delivered the Note and the Warrant to the Investor, as specified in Section 1.
4.9 ANCILLARY AGREEMENTS. The Company and the Investor shall
have entered into a registration rights agreement dated of even date herewith, a
form of which is attached hereto as EXHIBIT E (the "Registration Rights
Agreement").
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to the Investor under this Agreement is subject to the
fulfillment on or before any Closing of each of the following conditions by the
Investor:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Investor contained in Section 3 shall be true on and as of
such Closing with the same effect as though such representations and warranties
had been made on and as of such Closing.
5.2 PAYMENT OF PURCHASE PRICE. The Investor shall have
delivered the purchase price specified in Section 1.2.
5.3 ANCILLARY AGREEMENTS. The Company and the Investor shall
have entered into the Registration Rights Agreement.
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. The warranties, representations,
and covenants of the Company and the Investor contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company.
6.2 SUCCESSORS AND ASSIGNS. This Agreement is personal to each
of the parties and may not be assigned without the written consent of the other
parties; PROVIDED, HOWEVER, that any of the Investor shall be permitted to
assign its rights under this Agreement and the Ancillary Agreements to any
affiliate of such Purchaser.
6.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements among
New York residents entered into and to be performed entirely within New York.
The Company (1) agrees that any legal suit, action or proceeding arising out of
or relating to this Agreement shall be instituted exclusively in New York State
Supreme Court, County of New York, or in the United States District Court for
the Southern District of New York, (2) waives any objection which the Company
may have now or hereafter to the venue of any such suit, action or proceeding,
and (3) irrevocably consents to the jurisdiction of the New York State Supreme
Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. The Company further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York State Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York and agrees that service of process upon the
Company mailed by certified mail to the Company's address shall be deemed in
every respect effective service of process upon the Company, in any such suit,
action or proceeding. THE PARTIES HERETO AGREE TO WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
6.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. Unless otherwise provided, any notice,
authorization, request or demand required or permitted to be given under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery to the party to be notified or three (3) days following
deposit with the United States Post Office, by registered or certified mail,
postage prepaid, or two days after it is sent by an overnight delivery service,
or when sent by facsimile with machine confirmation of delivery addressed as
follows:
If to the Investor to:
Ocean Drive SF Associates, LLC
000 Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
With a copy to:
Xxxxxxx & Krooks LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
If to Company, to:
Skyframes, Inc.
000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx Xxxx, XX 00000
Telecopier No.:
Attention: Xxxxx X. France
With a copy to:
The Law Office of Xxxx X. Wykidal
000 Xxxxxxx Xxxxxx, Xxxxx X0
Xxxxx Xxxx, XX 9262
Telecopier No.: (000) 000-0000
Attention: Xxxx Wykidal, Esq.
Any party may change its address for such communications by giving notice
thereof to the other parties in conformity with this Section.
6.7 FINDER'S FEE. Each party represents that it neither is nor
will be obligated for any finders' or brokers' fee or commission in connection
with this transaction.
6.8 EXPENSES. If any action at law or in equity is necessary
to enforce or interpret the terms of the Transaction Documents the prevailing
party shall be entitled to reasonable attorney's fees, costs, and necessary
disbursements in addition to any other relief to which such party may be
entitled.
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any securities purchased under this Agreement at the
time outstanding (including securities into which such securities are
convertible), each future holder of all such securities, and the Company.
6.10 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
6.11 ENTIRE AGREEMENT. This Agreement and the documents
referred to herein constitute the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations, or covenants except as specifically set forth
herein or therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SKYFRAMES, INC.
By:
-----------------------------------------
Name: Xxxxx X. France
Title: CEO and President
OCEAN DRIVE SF ASSOCIATES, LLC
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
