SECURITIES PURCHASE AGREEMENT
This
SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of March 19,
2021, is by and among Super League Gaming, Inc., a Delaware
corporation with headquarters located at 0000 Xxxxxxxx Xxx., Xxxxx
#000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000 (the “Company”), and each of the
investors listed on the Schedule of Buyers attached hereto
(individually, a “Buyer” and collectively, the
“Buyers”).
RECITALS
A. The
Company and each Buyer desire to enter into this transaction to
purchase the Common Shares (as defined below) pursuant to a
currently effective shelf registration statement on Form S-3, which
has at least $13,612,491 of unallocated securities, including
Common Stock (as defined below) registered thereunder (Registration
Number 333-237626) (the “Registration Statement”), which
Registration Statement has been declared effective in accordance
with the Securities Act of 1933, as amended (the
“1933 Act”), by
the United States Securities and Exchange Commission (the
“SEC”).
B. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the
terms and conditions stated in this Agreement, such aggregate
number of shares of Common Stock as set forth opposite such
Buyer’s name in column (3) on the Schedule of Buyers (which
aggregate amount for all Buyers shall be 1,512,499 shares of Common
Stock and shall collectively be referred to herein as the
“Common Shares”
or the “Securities”).
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each Buyer hereby agree as
follows:
1.
PURCHASE
AND SALE OF COMMON SHARES.
(a) Purchase of Common Shares.
Subject to the satisfaction (or waiver) of the conditions set forth
in Sections 6 and 7 below, the Company shall issue and sell to each
Buyer, and each Buyer severally, but not jointly, agrees to
purchase from the Company on the Closing Date (as defined below)
such aggregate number of Common Shares as is set forth opposite
such Buyer’s name in column (3) on the Schedule of
Buyers.
(b) Closing. The closing (the
“Closing”) of
the purchase of the Common Shares by the Buyers shall occur at the
offices of Xxxxxx Xxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00
a.m., New York time, on the first (1st) Business Day (as defined
below) on which the conditions to the Closing set forth in Sections
6 and 7 below are satisfied or waived (or such other date as is
mutually agreed to by the Company and each Buyer). As used herein
“Business Day”
means any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required
by law to remain closed; provided,
however,
for clarification, commercial banks shall not be deemed to be
authorized or required by law to remain closed due to “stay
at home”, “shelter-in-place”,
“non-essential employee” or any other similar
orders or restrictions or the closure of any physical branch
locations at the direction of any governmental authority so long as
the electronic funds transfer systems (including for wire
transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
(c) Purchase Price. The aggregate
purchase price for the Common Shares to be purchased by each Buyer
(the “Purchase
Price”) shall be the amount set forth opposite such
Buyer’s name in column (4) on the Schedule of
Buyers.
(d) Form of Payment; Deliveries. On
the Closing Date, (i) each Buyer shall pay its respective Purchase
Price to the Company for the Common Shares to be issued and sold to
such Buyer at the Closing, by wire transfer of immediately
available funds in accordance with the Flow of Funds Letter (as
defined below) (less, in the case of the lead Buyer, the amounts
withheld pursuant to Section 4(i)) and (ii) the Company shall
cause Issuer Direct (together with any subsequent transfer agent,
the “Transfer
Agent”) through the Depository Trust Company
(“DTC”) Fast
Automated Securities Transfer Program, to credit such aggregate
number of Common Shares that each Buyer is purchasing as is set
forth opposite such Buyer’s name in column (3) of the
Schedule of Buyers to such Buyer’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at
Custodian system.
(e) Sales During Pre-Settlement
Period. Notwithstanding anything herein to the contrary, if
at any time on or after the time of execution of this Agreement by
the Company and an applicable Buyer, through, and including the
time immediately prior to the Closing (the “Pre-Settlement Period”), such
Buyer sells (excluding “short sales” as defined in Rule
200 of Regulation SHO) to any Person all, or any portion, of any
Common Shares to be issued hereunder to such Buyer at the Closing
(collectively, the “Pre-Settlement Common Shares”),
such Buyer shall, automatically hereunder (without any additional
required actions by such Buyer or the Company), be deemed to be
unconditionally bound to purchase, and the Company shall be deemed
unconditionally bound to sell, such Pre-Settlement Common Shares to
such Buyer at the Closing; provided, that the Company shall not be
required to deliver any Pre-Settlement Common Shares to such Buyer
prior to the Company’s receipt of the purchase price of such
Pre-Settlement Common Shares hereunder; and provided further that
the Company hereby acknowledges and agrees that the forgoing shall
not constitute a representation or covenant by such Buyer as to
whether or not during the Pre-Settlement Period such Buyer shall
sell any Common Shares to any Person and that any such decision to
sell any Common Shares by such Buyer shall be made, in the sole
discretion of such Buyer, at the time such Buyer elects to effect
any such sale, if any.
Each
Buyer, severally and not jointly, represents and warrants to the
Company with respect to only itself that, as of the date hereof and
as of the Closing Date:
(a) Organization; Authority. Such
Buyer is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization
with the requisite power and authority to enter into and to
consummate the transactions contemplated by the Transaction
Documents (as defined below) to which it is a party and otherwise
to carry out its obligations hereunder and thereunder.
(b) Validity; Enforcement. This
Agreement has been duly and validly authorized, executed and
delivered on behalf of such Buyer and shall constitute the legal,
valid and binding obligations of such Buyer enforceable against
such Buyer in accordance with its terms, except as such
enforceability may be limited by general principles of equity or to
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights
and remedies.
(c) No Conflicts. The execution,
delivery and performance by such Buyer of this Agreement and the
consummation by such Buyer of the transactions contemplated hereby
will not (i) result in a violation of the organizational documents
of such Buyer, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which such Buyer is a party or (iii)
result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws) applicable
to such Buyer, except, in the case of clauses (ii) and (iii) above,
for such conflicts, defaults, rights or violations which could not,
individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of such Buyer to perform its
obligations hereunder.
3.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers that, as of
the date hereof and as of the Closing Date:
(a) Organization and Qualification.
Each of the Company and each of its Subsidiaries are entities duly
organized and validly existing and in good standing under the laws
of the jurisdiction in which they are formed, and have the
requisite power and authority to own their properties and to carry
on their business as now being conducted and as presently proposed
to be conducted. Each of the Company and each of its Subsidiaries
is duly qualified as a foreign entity to do business and is in good
standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not reasonably be
expected to have a Material Adverse Effect (as defined below). As
used in this Agreement, “Material Adverse Effect” means any
material adverse effect on (i) the business, properties, assets,
liabilities, operations (including results thereof), condition
(financial or otherwise) or prospects of the Company or any
Subsidiary, individually or taken as a whole, (ii) the transactions
contemplated hereby or in any of the other Transaction Documents or
any other agreements or instruments to be entered into in
connection herewith or therewith or (iii) the authority or ability
of the Company or any of its Subsidiaries to perform any of their
respective obligations under any of the Transaction Documents (as
defined below). Other than the Persons (as defined below) set forth
on Schedule 3(a) the
Company has no Subsidiaries. “Subsidiaries” means any Person in
which the Company, directly or indirectly, (A) owns any of the
outstanding capital stock or holds any equity or similar interest
of such Person or (B) controls or operates all or any part of the
business, operations or administration of such Person, and each of
the foregoing, is individually referred to herein as a
“Subsidiary”.
(b) Authorization; Enforcement;
Validity. The Company has the requisite power and authority
to enter into and perform its obligations under this Agreement and
the other Transaction Documents and to issue the Securities in
accordance with the terms hereof and thereof. The execution and
delivery of this Agreement and the other Transaction Documents by
the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Common Shares) have been duly authorized by the
Company’s board of directors and (other than the filing with
the SEC of the prospectus supplement required by the Registration
Statement pursuant to Rule 424(b) under the 1933 Act (the
“Prospectus
Supplement”) supplementing the base prospectus forming
part of the Registration Statement (the “Prospectus”) and any other filings
as may be required by any state securities agencies) no further
filing, consent or authorization is required by the Company, its
board of directors or its stockholders or other governing body.
This Agreement has been, and the other Transaction Documents will
be prior to the Closing, duly executed and delivered by the
Company, and each constitutes the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with its respective terms, except as such enforceability
may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies and except as
rights to indemnification and to contribution may be limited by
federal or state securities law. “Transaction Documents” means,
collectively, this Agreement, the Common Shares, the Irrevocable
Transfer Agent Instructions (as defined below) and each of the
other agreements and instruments entered into or delivered by any
of the parties hereto in connection with the transactions
contemplated hereby and thereby, as may be amended from time to
time.
(c) Issuance of Securities; Registration
Statement. The issuance of the Common Shares are duly
authorized and, upon issuance and payment in accordance with the
terms of the Transaction Documents shall be validly issued, fully
paid and non-assessable and free from all preemptive or similar
rights, mortgages, defects, claims, liens, pledges, charges, taxes,
rights of first refusal, encumbrances, security interests and other
encumbrances (collectively “Liens”) with respect to the
issuance thereof. The issuance by the Company of the Securities has
been registered under the 1933 Act, the Securities are being issued
pursuant to the Registration Statement and all of the Securities
are freely transferable and freely tradable by each of the Buyers
without restriction, whether by way of registration or some
exemption therefrom. The Registration Statement is effective and
available for the issuance of the Securities thereunder and the
Company has not received any notice that the SEC has issued or
intends to issue a stop-order with respect to the Registration
Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of the Registration Statement, either temporarily or
permanently, or intends or has threatened in writing to do so. The
“Plan of Distribution” section under the Registration
Statement permits the issuance and sale of the Securities hereunder
and as contemplated by the other Transaction Documents. Upon
receipt of the Securities, each of the Buyers will have good and
marketable title to the Securities. The Registration Statement and
any prospectus included therein, including the Prospectus and the
Prospectus Supplement, complied in all material respects with the
requirements of the 1933 Act and the Securities Exchange Act of
1934, as amended (the “1934
Act”) and the rules and regulations of the SEC
promulgated thereunder and all other applicable laws and
regulations. At the time the Registration Statement and any
amendments thereto became effective, at the date of this Agreement
and at each deemed effective date thereof pursuant to Rule
430B(f)(2) of the 1933 Act, the Registration Statement and any
amendments thereto complied and will comply in all material
respects with the requirements of the 1933 Act and did not and will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus and
any amendments or supplements thereto (including, without
limitation the Prospectus Supplement), at the time the Prospectus
or any amendment or supplement thereto was issued and at the
Closing Date,
complied, and will comply, in all material respects with the
requirements of the 1933 Act and did not, and will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
Company meets all of the requirements for the use of Form S-3 under
the 1933 Act for the offering and sale of the Securities
contemplated by this Agreement and the other Transaction Documents,
and the SEC has not notified the Company of any objection to the
use of the form of the Registration Statement pursuant to Rule
401(g)(1) under the 1933 Act. The Registration Statement meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act. At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the 0000 Xxx)
relating to any of the Securities, the Company was not and is not
an “Ineligible Issuer” (as defined in Rule 405 under
the 1933 Act). The Company (i) has not distributed any offering
material in connection with the offer or sale of any of the
Securities and (ii) until no Buyer holds any of the Securities,
shall not distribute any offering material in connection with the
offer or sale of any of the Securities to, or by, any of the Buyers
(if required), in each case, other than the Registration Statement,
the Prospectus or the Prospectus Supplement. In accordance with
Rule 5110(b)(7)(C)(i) of the
Financial Industry Regulatory Authority Manual, the offering of the
Securities has been registered with the SEC on Form S-3 under the
1933 Act pursuant to the standards for Form S-3 in effect prior to
October 21, 1992, and the Securities are being offered pursuant to
Rule 415 promulgated under the 1933 Act.
(d) No Conflicts. The execution,
delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Common Shares) will not (i) result in a violation
of the Certificate of Incorporation (as defined below) (including,
without limitation, any certificate of designation contained
therein), Bylaws (as defined below), certificate of formation,
memorandum of association, articles of association, bylaws or other
organizational documents of the Company or any of its Subsidiaries,
or any capital stock or other securities of the Company or any of
its Subsidiaries, (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a
default) in any respect under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company or any of
its Subsidiaries is a party, or (iii) result in a violation of any
law, rule, regulation, order, judgment or decree (including,
without limitation, foreign, federal and state securities laws and
regulations and the rules and regulations of the Nasdaq Capital
Market (the “Principal
Market”) and including all applicable foreign, federal
and state laws, rules and regulations) applicable to the Company or
any of its Subsidiaries or by which any property or asset of the
Company or any of its Subsidiaries is bound or
affected.
(e) Consents. Neither the Company
nor any Subsidiary is required to obtain any consent from,
authorization or order of, or make any filing or registration with
(other than the filing with the SEC of the Prospectus Supplement
and any other filings as may be required by any state securities
agencies), any Governmental Entity (as defined below) or any
regulatory or self-regulatory agency or any other Person in order
for it to execute, deliver or perform any of its respective
obligations under or contemplated by the Transaction Documents, in
each case, in accordance with the terms hereof or thereof. All
consents, authorizations, orders, filings and registrations which
the Company or any Subsidiary is required to obtain pursuant to the
preceding sentence have been or will be obtained or effected on or
prior to the Closing Date, and neither the Company nor any of its
Subsidiaries are aware of any facts or circumstances which might
prevent the Company or any of its Subsidiaries from obtaining or
effecting any of the registration, application or filings
contemplated by the Transaction Documents. The Company is not in
violation of the requirements of the Principal Market and has no
knowledge of any facts or circumstances which could reasonably lead
to delisting or suspension of the Common Stock in the foreseeable
future. “Governmental
Entity” means any nation, state, county, city, town,
village, district, or other political jurisdiction of any nature,
federal, state, local, municipal, foreign, or other government,
governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official,
or entity and any court or other tribunal), multi-national
organization or body; or body exercising, or entitled to exercise,
any administrative, executive, judicial, legislative, police,
regulatory, or taxing authority or power of any nature or
instrumentality of any of the foregoing, including any entity or
enterprise owned or controlled by a government or a public
international organization or any of the foregoing.
(f) Acknowledgment Regarding Buyer’s
Purchase of Securities. The Company acknowledges and agrees
that each Buyer is acting solely in the capacity of an arm’s
length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby and that no Buyer is
(i) an officer or director of the Company or any of its
Subsidiaries, (ii) an “affiliate” (as defined in Rule
144 promulgated under the 1933 Act (or a successor rule thereto)
(collectively, “Rule
144”)) of the Company or any of its Subsidiaries or
(iii) to its knowledge, a “beneficial owner” of more
than 10% of the shares of Common Stock (as defined for purposes of
Rule 13d-3 of the 1934 Act). The Company further acknowledges that
no Buyer is acting as a financial advisor or fiduciary of the
Company or any of its Subsidiaries (or in any similar capacity)
with respect to the Transaction Documents and the transactions
contemplated hereby and thereby, and any advice given by a Buyer or
any of its representatives or agents in connection with the
Transaction Documents and the transactions contemplated hereby and
thereby is merely incidental to such Buyer’s purchase of the
Securities. The Company further represents to each Buyer that the
Company’s decision to enter into the Transaction Documents
has been based solely on the independent evaluation by the Company
and its representatives.
(g) Placement Agent’s Fees.
The Company shall be responsible for the payment of any placement
agent’s fees, financial advisory fees, or brokers’
commissions (other than for Persons engaged by any Buyer or its
investment advisor) relating to or arising out of the transactions
contemplated hereby. The Company shall pay, and hold each Buyer
harmless against, any liability, loss or expense (including,
without limitation, attorney’s fees and out-of-pocket
expenses) arising in connection with any such claim. Neither the
Company nor any of its Subsidiaries has engaged any placement agent
or other agent in connection with the offer or sale of the
Securities.
(h) No Integrated Offering. None of
the Company, its Subsidiaries or any of their affiliates, nor any
Person acting on their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any
security, under circumstances that would cause this offering of the
Securities to require approval of stockholders of the Company under
any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of any exchange or
automated quotation system on which any of the securities of the
Company are listed or designated for quotation. None of the
Company, its Subsidiaries, their affiliates nor any Person acting
on their behalf will take any action or steps that would cause the
offering of any of the Securities to be integrated with other
offerings of securities of the Company.
(i) SEC Documents; Financial
Statements. During the two (2) years prior to the date
hereof, the Company has timely filed all reports, schedules, forms,
proxy statements, statements and other documents required to be
filed by it with the SEC pursuant to the reporting requirements of
the 1934 Act (all of the foregoing filed prior to the date hereof
and all exhibits and appendices included therein and financial
statements, notes and schedules thereto and documents incorporated
by reference therein being hereinafter referred to as the
“SEC
Documents”). The Company has delivered or has made
available to the Buyers or their respective representatives true,
correct and complete copies of each of the SEC Documents not
available on the XXXXX system. As of their respective dates, the
SEC Documents complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
SEC promulgated thereunder applicable to the SEC Documents, and
none of the SEC Documents, at the time they were filed with the
SEC, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company
included in the SEC Documents complied in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto as in effect as of the
time of filing. Such financial statements have been prepared in
accordance with generally accepted accounting principles
(“GAAP”),
consistently applied, during the periods involved (except (i) as
may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements,
to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the
results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments which will not be material, either individually
or in the aggregate). The reserves, if any, established by the
Company or the lack of reserves, if applicable, are reasonable
based upon facts and circumstances known by the Company on the date
hereof and there are no loss contingencies that are required to be
accrued by the Statement of Financial Accounting Standard No. 5 of
the Financial Accounting Standards Board which are not provided for
by the Company in its financial statements or otherwise. No other
information provided by or on behalf of the Company to any of the
Buyers which is not included in the SEC Documents (including,
without limitation, information in the disclosure schedules to this
Agreement) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein not misleading, in the light of the circumstance
under which they are or were made. The Company is not currently
contemplating to amend or restate any of the financial statements
(including, without limitation, any notes or any letter of the
independent accountants of the Company with respect thereto)
included in the SEC Documents (the “Financial Statements”), nor is the
Company currently aware of facts or circumstances which would
require the Company to amend or restate any of the Financial
Statements, in each case, in order for any of the Financials
Statements to be in compliance with GAAP and the rules and
regulations of the SEC. The Company has not been informed by its
independent accountants that they recommend that the Company amend
or restate any of the Financial Statements or that there is any
need for the Company to amend or restate any of the Financial
Statements.
(j) Absence of Certain Changes.
Since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, there has been no material
adverse change and no material adverse development in the business,
assets, liabilities, properties, operations (including results
thereof), condition (financial or otherwise) or prospects of the
Company or any of its Subsidiaries. Since the date of the
Company’s most recent audited financial statements contained
in a Form 10-K, neither the Company nor any of its Subsidiaries has
(i) declared or paid any dividends, (ii) sold any assets,
individually or in the aggregate, outside of the ordinary course of
business or (iii) made any capital expenditures, individually or in
the aggregate, outside of the ordinary course of business. Neither
the Company nor any of its Subsidiaries has taken any steps to seek
protection pursuant to any law or statute relating to bankruptcy,
insolvency, reorganization, receivership, liquidation or winding
up, nor does the Company or any Subsidiary have any knowledge or
reason to believe that any of their respective creditors intend to
initiate involuntary bankruptcy proceedings or any actual knowledge
of any fact which would reasonably lead a creditor to do so. The
Company and its Subsidiaries, individually and on a consolidated
basis, are not as of the date hereof, and after giving effect to
the transactions contemplated hereby to occur at the Closing, will
not be Insolvent (as defined below). For purposes of this Section
3(j), “Insolvent” means, (i) with respect
to the Company and its Subsidiaries, on a consolidated basis, (A)
the present fair saleable value of the Company’s and its
Subsidiaries’ assets is less than the amount required to pay
the Company’s and its Subsidiaries’ total Indebtedness
(as defined below), (B) the Company and its Subsidiaries are unable
to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and
matured or (C) the Company and its Subsidiaries intend to incur or
believe that they will incur debts that would be beyond their
ability to pay as such debts mature; and (ii) with respect to the
Company and each Subsidiary, individually, (A) the present fair
saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay
its respective total Indebtedness, (B) the Company or such
Subsidiary (as the case may be) is unable to pay its respective
debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured or (C) the
Company or such Subsidiary (as the case may be) intends to incur or
believes that it will incur debts that would be beyond its
respective ability to pay as such debts mature. Neither the Company
nor any of its Subsidiaries has engaged in any business or in any
transaction, and is not about to engage in any business or in any
transaction, for which the Company’s or such
Subsidiary’s remaining assets constitute unreasonably small
capital with which to conduct the business in which it is engaged
as such business is now conducted and is proposed to be
conducted.
(k) Conduct of Business; Regulatory
Permits. Neither the Company nor any of its Subsidiaries is
in violation of any term of or in default under its Certificate of
Incorporation, any certificate of designation, preferences or
rights of any other outstanding series of preferred stock of the
Company or any of its Subsidiaries or Bylaws or their
organizational charter, certificate of formation, memorandum of
association, articles of association, Certificate of Incorporation
or certificate of incorporation or bylaws, respectively. Neither
the Company nor any of its Subsidiaries is in violation of any
judgment, decree or order or any statute, ordinance, rule or
regulation applicable to the Company or any of its Subsidiaries,
and neither the Company nor any of its Subsidiaries will conduct
its business in violation of any of the foregoing, except in all
cases for possible violations which could not, individually or in
the aggregate, have a Material Adverse Effect. Without limiting the
generality of the foregoing, the Company is not in violation of any
of the rules, regulations or requirements of the Principal Market
and has no knowledge of any facts or circumstances that could
reasonably lead to delisting or suspension of the Common Stock by
the Principal Market in the foreseeable future. During the two
years prior to the date hereof, (i) the Common Stock has been
listed or designated for quotation on the Principal Market, (ii)
trading in the Common Stock has not been suspended by the SEC or
the Principal Market and (iii) the Company has received no
communication, written or oral, from the SEC or the Principal
Market regarding the suspension or delisting of the Common Stock
from the Principal Market. The Company and each of its Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such
certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and
neither the Company nor any such Subsidiary has received any notice
of proceedings relating to the revocation or modification of any
such certificate, authorization or permit. There is no agreement,
commitment, judgment, injunction, order or decree binding upon the
Company or any of its Subsidiaries or to which the Company or any
of its Subsidiaries is a party which has or would reasonably be
expected to have the effect of prohibiting or materially impairing
any business practice of the Company or any of its Subsidiaries,
any acquisition of property by the Company or any of its
Subsidiaries or the conduct of business by the Company or any of
its Subsidiaries as currently conducted other than such effects,
individually or in the aggregate, which have not had and would not
reasonably be expected to have a Material Adverse Effect on the
Company or any of its Subsidiaries.
(l) Foreign Corrupt Practices.
Neither the Company, the Company’s subsidiary or any
director, officer, agent, employee, nor any other person acting for
or on behalf of the foregoing (individually and collectively, a
“Company
Affiliate”) have violated the U.S. Foreign Corrupt
Practices Act (the “FCPA”) or any other applicable
anti-bribery or anti-corruption laws, nor has any Company Affiliate
offered, paid, promised to pay, or authorized the payment of any
money, or offered, given, promised to give, or authorized the
giving of anything of value, to any officer, employee or any other
person acting in an official capacity for any Governmental Entity
to any political party or official thereof or to any candidate for
political office (individually and collectively, a
“Government
Official”) or to any person under circumstances where
such Company Affiliate knew or was aware of a high probability that
all or a portion of such money or thing of value would be offered,
given or promised, directly or indirectly, to any Government
Official, for the purpose of:
(i) (A) influencing any
act or decision of such Government Official in his/her official
capacity, (B) inducing such Government Official to do or omit to do
any act in violation of his/her lawful duty, (C) securing any
improper advantage, or (D) inducing such Government Official to
influence or affect any act or decision of any Governmental Entity,
or
(ii) assisting
the Company or its Subsidiaries in obtaining or retaining business
for or with, or directing business to, the Company or its
Subsidiaries.
(m) Xxxxxxxx-Xxxxx Act. The Company
and each Subsidiary is in compliance with any and all applicable
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and any
and all applicable rules and regulations promulgated by the SEC
thereunder.
(n) Transactions With Affiliates.
No current or former employee, partner, director, officer or
stockholder (direct or indirect) of the Company or its
Subsidiaries, or any associate, or, to the knowledge of the
Company, any affiliate of any thereof, or any relative with a
relationship no more remote than first cousin of any of the
foregoing, is presently, or has ever been, (i) a party to any
transaction with the Company or its Subsidiaries (including any
contract, agreement or other arrangement providing for the
furnishing of services by, or rental of real or personal property
from, or otherwise requiring payments to, any such director,
officer or stockholder or such associate or affiliate or relative
Subsidiaries (other than for ordinary course services as employees,
officers or directors of the Company or any of its Subsidiaries))
or (ii) the direct or indirect owner of an interest in any
corporation, firm, association or business organization which is a
competitor, supplier or customer of the Company or its Subsidiaries
(except for a passive investment (direct or indirect) in less than
5% of the common stock of a company whose securities are traded on
or quoted through an Eligible Market (as defined below)), nor does
any such Person receive income from any source other than the
Company or its Subsidiaries which relates to the business of the
Company or its Subsidiaries or should properly accrue to the
Company or its Subsidiaries. No employee, officer, stockholder or
director of the Company or any of its Subsidiaries or member of his
or her immediate family is indebted to the Company or its
Subsidiaries, as the case may be, nor is the Company or any of its
Subsidiaries indebted (or committed to make loans or extend or
guarantee credit) to any of them, other than (i) for payment of
salary for services rendered, (ii) reimbursement for reasonable
expenses incurred on behalf of the Company, and (iii) for other
standard employee benefits made generally available to all
employees or executives (including stock option agreements
outstanding under any stock option plan approved by the Board of
Directors of the Company).
(o) Equity
Capitalization.
(i)
Definitions:
(A) “Common
Stock” means (x) the Company’s shares of
common stock, $0.001 par value per share, and (y) any capital stock
into which such common stock shall have been changed or any share
capital resulting from a reclassification of such common
stock.
(B) “Preferred
Stock” means (x) the Company’s blank check
preferred stock, $0.001 par value per share, the terms of which may
be designated by the board of directors of the Company in a
certificate of designations and (y) any capital stock into which
such preferred stock shall have been changed or any share capital
resulting from a reclassification of such preferred stock (other
than a conversion of such preferred stock into Common Stock in
accordance with the terms of such certificate of
designations).
(ii) Authorized
and Outstanding Capital Stock. As of the date hereof, the
authorized capital stock of the Company consists of (A) 100,000,000
shares of Common Stock, of which, 21,608,144 are issued and
outstanding and 4,373,898 shares are reserved for issuance pursuant
to Convertible Securities (as defined below) (other than the Common
Shares) exercisable or exchangeable for, or convertible into,
shares of Common Stock and (B) 10,000,000 shares of Preferred
Stock, none of which are issued and outstanding. No shares of
Common Stock are held in the treasury of the Company.
(iii) Valid
Issuance; Available Shares; Affiliates. All of such
outstanding shares are duly authorized and have been, or upon
issuance will be, validly issued and are fully paid and
nonassessable. The SEC
Documents disclose the number of shares of Common Stock that
are (A) reserved for issuance pursuant to Convertible Securities
(as defined below) and (B) that are, as of the date hereof, owned
by Persons who are “affiliates” (as defined in Rule 405
of the 1933 Act and calculated based on the assumption that only
officers, directors and holders of at least 10% of the
Company’s issued and outstanding Common Stock are
“affiliates” without conceding that any such Persons
are “affiliates” for purposes of federal securities
laws) of the Company or any of its Subsidiaries. To the
Company’s knowledge, no Person owns 10% or more of the
Company’s issued and outstanding shares of Common Stock
(calculated based on the assumption that all Convertible Securities
(as defined below), whether or not presently exercisable or
convertible, have been fully exercised or converted (as
the case may be) taking account of any limitations on exercise or
conversion (including “blockers”) contained therein
without conceding that such identified Person is a 10% stockholder
for purposes of federal securities laws).
(iv) Existing
Securities; Obligations. Except as disclosed in the SEC
Documents: (A) none of the Company’s or any
Subsidiary’s shares, interests or capital stock is subject to
preemptive rights or any other similar rights or Liens suffered or
permitted by the Company or any Subsidiary; (B) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or
exchangeable for, any shares, interests or capital stock of the
Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional shares,
interests or capital stock of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or
exchangeable for, any shares, interests or capital stock of the
Company or any of its Subsidiaries; (C) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the
1933 Act (except pursuant to this Agreement); (D) there are no
outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or
may become bound to redeem a security of the Company or any of its
Subsidiaries; (E) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the
issuance of the Securities; and (F) neither the Company nor any
Subsidiary has any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or
agreement.
(v) Organizational Documents. The
Company has furnished to the Buyers true, correct and complete
copies of the Company’s Certificate of Incorporation, as
amended and as in effect on the date hereof (the
“Certificate
of Incorporation”),
and the Company’s bylaws, as amended and as in effect on the
date hereof (the “Bylaws”), and the terms of all
Convertible Securities and the material rights of the holders
thereof in respect thereto.
(p) Indebtedness and Other
Contracts. Neither the Company nor any of its Subsidiaries,
(i) except as set forth in the SEC Documents, has any outstanding
debt securities, notes, credit agreements, credit facilities or
other agreements, documents or instruments evidencing Indebtedness
of the Company or any of its Subsidiaries or by which the Company
or any of its Subsidiaries is or may become bound, (ii) is a party
to any contract, agreement or instrument, the violation of which,
or default under which, by the other party(ies) to such contract,
agreement or instrument could reasonably be expected to result in a
Material Adverse Effect, (iii) has any financing statements
securing obligations in any amounts filed in connection with the
Company or any of its Subsidiaries; (iv) is in violation of any
term of, or in default under, any contract, agreement or instrument
relating to any Indebtedness, except where such violations and
defaults would not result, individually or in the aggregate, in a
Material Adverse Effect, or (v) is a party to any contract,
agreement or instrument relating to any Indebtedness, the
performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries have any
liabilities or obligations required to be disclosed in the SEC
Documents which are not so disclosed in the SEC Documents, other
than those incurred in the ordinary course of the Company’s
or its Subsidiaries’ respective businesses and which,
individually or in the aggregate, do not or could not have a
Material Adverse Effect. For purposes of this Agreement: (x)
“Indebtedness”
of any Person means, without duplication (A) all indebtedness for
borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services (including,
without limitation, “capital leases” in accordance with
GAAP) (other than trade payables entered into in the ordinary
course of business consistent with past practice), (C) all
reimbursement or payment obligations with respect to letters of
credit, surety bonds and other similar instruments, (D) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in
either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and
remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property), (F)
all monetary obligations under any leasing or similar arrangement
which, in connection with GAAP, consistently applied for the
periods covered thereby, is classified as a capital lease, (G) all
indebtedness referred to in clauses (A) through (F) above secured
by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or
in any property or assets (including accounts and contract rights)
owned by any Person, even though the Person which owns such assets
or property has not assumed or become liable for the payment of
such indebtedness, and (H) all Contingent Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (A) through (G) above; (y) “Contingent Obligation” means, as
to any Person, any direct or indirect liability, contingent or
otherwise, of that Person with respect to any Indebtedness, lease, dividend
or other obligation of another Person if the primary purpose or
intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such
liability that such liability will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part)
against loss with respect thereto; and (z) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other
entity and any Governmental Entity or any department or agency
thereof.
(q) Litigation. There is no action,
suit, arbitration, proceeding, inquiry or investigation before or
by the Principal Market, any court, public board, other
Governmental Entity, self-regulatory organization or body pending
or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries, the Common Stock
or any of the Company’s or its Subsidiaries’ officers
or directors, whether of a civil or criminal nature or otherwise,
in their capacities as such, which is outside of the ordinary
course of business or individually or in the aggregate material to
the Company or any of its Subsidiaries. No director, officer or
employee of the Company or any of its subsidiaries has willfully
violated 18 U.S.C. §1519 or engaged in spoliation in
reasonable anticipation of litigation. Without limitation of the
foregoing, there has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the SEC
involving the Company, any of its Subsidiaries or any current or
former director or officer of the Company or any of its
Subsidiaries. The SEC has not issued any stop order or other order
suspending the effectiveness of any registration statement filed by
the Company under the 1933 Act or the 1934 Act, including, without
limitation, the Registration Statement. After reasonable inquiry of
its employees, the Company is not aware of any fact which might
result in or form the basis for any such action, suit, arbitration,
investigation, inquiry or other proceeding. Neither the Company nor
any of its Subsidiaries is subject to any order, writ, judgment,
injunction, decree, determination or award of any Governmental
Entity.
(r) Intellectual Property Rights.
The Company and its Subsidiaries own or possess adequate rights or
licenses to use all trademarks, trade names, service marks, service
xxxx registrations, service names, original works of authorship,
patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and other
intellectual property rights and all applications and registrations
therefor (“Intellectual
Property Rights”) necessary to conduct their
respective businesses as now conducted. Except as set forth in
Schedule 3(r)(ii), none of the Company’s Intellectual
Property Rights have expired or terminated or have been abandoned
or are expected to expire or terminate or are expected to be
abandoned, within three years from the date of this Agreement. The
Company does not have any knowledge of any infringement by the
Company or its Subsidiaries of Intellectual Property Rights of
others. There is no claim, action or proceeding being made or
brought, or to the knowledge of the Company or any of its
Subsidiaries, being threatened, against the Company or any of its
Subsidiaries regarding its Intellectual Property Rights. Neither
the Company nor any of its Subsidiaries is aware of any facts or
circumstances which might give rise to any of the foregoing
infringements or claims, actions or proceedings. The Company and
its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their Intellectual
Property Rights.
(s) Internal Accounting and Disclosure
Controls. The Company and each of its Subsidiaries maintains
internal control over financial reporting (as such term is defined
in Rule 13a-15(f) under the 0000 Xxx) that is effective to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles, including that (i) transactions are executed in
accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset and liability accountability, (iii) access to
assets or incurrence of liabilities is permitted only in accordance
with management’s general or specific authorization and (iv)
the recorded accountability for assets and liabilities is compared
with the existing assets and liabilities at reasonable intervals
and appropriate action is taken with respect to any difference. The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the 0000 Xxx) that are effective
in ensuring that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act
is recorded, processed, summarized and reported, within the time
periods specified in the rules and forms of the SEC, including,
without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is accumulated and
communicated to the Company’s management, including its
principal executive officer or officers and its principal financial
officer or officers, as appropriate, to allow timely decisions
regarding required disclosure. Neither the Company nor any of its
Subsidiaries has received any notice or correspondence from any
accountant, Governmental Entity or other Person relating to any
potential material weakness or significant deficiency in any part
of the internal controls over financial reporting of the Company or
any of its Subsidiaries.
(t) Off Balance Sheet Arrangements.
There is no transaction, arrangement, or other relationship between
the Company or any of its Subsidiaries and an unconsolidated or
other off balance sheet entity that is required to be disclosed by
the Company in its 1934 Act filings and is not so disclosed or that
otherwise could be reasonably likely to have a Material Adverse
Effect.
(u) Investment Company Status. The
Company is not, and upon consummation of the sale of the Securities
will not be, an “investment company,” an affiliate of
an “investment company,” a company controlled by an
“investment company” or an “affiliated
person” of, or “promoter” or “principal
underwriter” for, an “investment company” as such
terms are defined in the Investment Company Act of 1940, as
amended.
(v) Acknowledgement Regarding
Buyers’ Trading Activity. It is
understood and acknowledged by the Company that (i) following the
public disclosure of the transactions contemplated by the
Transaction Documents, in accordance with the terms thereof, none
of the Buyers have been asked by the Company or any of its
Subsidiaries to agree, nor has any Buyer agreed with the Company or
any of its Subsidiaries, to desist from effecting any transactions
in or with respect to (including, without limitation, purchasing or
selling, long and/or short) any securities of the Company, or
“derivative” securities based on securities issued by
the Company or to hold any of the Securities for any specified
term; (ii) any Buyer, and counterparties in
“derivative” transactions to which any such Buyer is a
party, directly or indirectly, presently may have a
“short” position in the Common Stock which was
established prior to such Buyer’s knowledge of the
transactions contemplated by the Transaction Documents; (iii) each
Buyer shall not be deemed to have any affiliation with or control
over any arm’s length counterparty in any
“derivative” transaction; and (iv) each Buyer may rely
on the Company’s obligation to timely deliver shares of
Common Stock upon exercise or exchange, as applicable, of the
Securities as and when required pursuant to the Transaction
Documents for purposes of effecting trading in the Common Stock of
the Company. The Company further understands and acknowledges that
following the public disclosure of the transactions contemplated by
the Transaction Documents pursuant to the Press Release (as defined
below) one or more Buyers may engage in hedging and/or trading
activities (including, without limitation, the location and/or
reservation of borrowable shares of Common Stock) at various times
during the period that the Securities are outstanding and such
hedging and/or trading activities (including, without limitation,
the location and/or reservation of borrowable shares of Common
Stock), if any, can reduce the value of the existing
stockholders’ equity interest in the Company both at and
after the time the hedging and/or trading activities are being
conducted. The Company acknowledges that such aforementioned
hedging and/or trading activities do not constitute a breach of
this Agreement or any other Transaction Document or any of the
documents executed in connection herewith or
therewith.
(w) Manipulation of Price. Neither
the Company nor any of its Subsidiaries has, and, to the knowledge
of the Company, no Person acting on their behalf has, directly or
indirectly, (i) taken any action designed to cause or to result in
the stabilization or manipulation of the price of any security of
the Company or any of its Subsidiaries to facilitate the sale or
resale of any of the Securities, (ii) sold, bid for, purchased, or
paid any compensation for soliciting purchases of, any of the
Securities, (iii) paid or agreed to pay to any Person any
compensation for soliciting another to purchase any other
securities of the Company or any of its Subsidiaries or (iv) paid
or agreed to pay any Person for research services with respect to
any securities of the Company or any of its
Subsidiaries.
(x) Registration Eligibility. The
Company is eligible to register the issuance of the Securities by
the Company using Form S-3 promulgated under the 0000
Xxx.
(y) Shell Company Status. The
Company is not, and has never been, an issuer identified in, or
subject to, Rule 144(i).
(z) Disclosure. The Company
confirms that neither it nor any other Person acting on its behalf
has provided any of the Buyers or their agents or counsel with any
information that constitutes or could reasonably be expected to
constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the
transactions contemplated by this Agreement and the other
Transaction Documents. The Company understands and confirms that
each of the Buyers will rely on the foregoing representations in
effecting transactions in securities of the Company. All disclosure
provided to the Buyers regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby,
including the schedules to this Agreement, furnished by or on
behalf of the Company or any of its Subsidiaries is true and
correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances
under which they were made, not misleading. All of the written
information furnished after the date hereof by or on behalf of the
Company or any of its Subsidiaries to each Buyer pursuant to or in
connection with this Agreement and the other Transaction Documents,
taken as a whole, will be true and correct in all material respects
as of the date on which such information is so provided and will
not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they
were made, not misleading. Each press release issued by the Company
or any of its Subsidiaries during the twelve (12) months preceding
the date of this Agreement did not at the time of release contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. No event or circumstance has
occurred or information exists with respect to the Company or any
of its Subsidiaries or its or their business, properties,
liabilities, prospects, operations (including results thereof) or
conditions (financial or otherwise), which, under applicable law,
rule or regulation, requires public disclosure at or before the
date hereof or announcement by the Company but which has not been
so publicly disclosed. All financial projections and forecasts that
have been prepared by or on behalf of the Company or any of its
Subsidiaries and made available to you have been prepared in good
faith based upon reasonable assumptions and represented, at the
time each such financial projection or forecast was delivered to
each Buyer, the Company’s best estimate of future financial
performance (it being recognized that such financial projections or
forecasts are not to be viewed as facts and that the actual results
during the period or periods covered by any such financial
projections or forecasts may differ from the projected or
forecasted results). The Company acknowledges and agrees that no
Buyer makes or has made any representations or warranties with
respect to the transactions contemplated hereby other than those
specifically set forth in Section 2.
4.
COVENANTS.
(a) Best Efforts. Each Buyer shall
use its best efforts to timely satisfy each of the covenants
hereunder and conditions to be satisfied by it as provided in
Section 6 of this Agreement.
The Company shall use its best efforts to timely satisfy each of
the covenants hereunder and conditions to be satisfied by it as
provided in Section 7 of this Agreement.
(i) Amendments to the Registration
Statement; Prospectus Supplements; Free Writing
Prospectuses. Except as provided in this Agreement and other
than periodic reports required to be filed pursuant to the 1934
Act, the Company shall not file with the SEC any amendment to the
Registration Statement that relates to the Buyer, this Agreement or
the transactions contemplated hereby or thereby or file with the
SEC any Prospectus Supplement that relates to the Buyer, this
Agreement or the transactions contemplated hereby or thereby with
respect to which (a) the Buyer shall not previously have been
advised, (b) the Company shall not have given due consideration to
any comments thereon received from the Buyer or its counsel, or (c)
the Buyer shall reasonably object after being so advised, unless
the Company reasonably has determined that it is necessary to amend
the Registration Statement or make any supplement to the Prospectus
to comply with the 1933 Act or any other applicable law or
regulation, in which case the Company shall promptly (but in no
event later than 24 hours) so inform the Buyer, the Buyer shall be
provided with a reasonable opportunity to review and comment upon
any disclosure relating to the Buyer and the Company shall
expeditiously furnish to the Buyer an electronic copy thereof. In
addition, for so long as, in the reasonable opinion of counsel for
the Buyer, the Prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the 0000 Xxx) is required to be delivered
in connection with any acquisition or sale of Securities by the
Buyer, the Company shall not file any Prospectus Supplement with
respect to the Securities without delivering or making available a
copy of such Prospectus Supplement, together with the Prospectus,
to the Buyer promptly.
(ii) The
Company has not made, and agrees that unless it obtains the prior
written consent of the Buyer it will not make, an offer relating to
the Securities that would constitute an “issuer free writing
prospectus” as defined in Rule 433 promulgated under the 1933
Act (an “Issuer Free Writing
Prospectus”) or that would otherwise constitute a
“free writing prospectus” as defined in Rule 405
promulgated under the 1933 Act (a “Free Writing Prospectus”) required
to be filed by the Company or the Buyer with the SEC or retained by
the Company or the Buyer under Rule 433 under the 1933 Act. The
Buyer has not made, and agrees that unless it obtains the prior
written consent of the Company it will not make, an offer relating
to the Securities that would constitute a Free Writing Prospectus
required to be filed by the Company with the SEC or retained by the
Company under Rule 433 under the 1933 Act. Any such Issuer Free
Writing Prospectus or other Free Writing Prospectus consented to by
the Buyer or the Company is referred to in this Agreement as a
“Permitted Free Writing
Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it
has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 under the 1933 Act applicable to
any Permitted Free Writing Prospectus, including in respect of
timely filing with the SEC, legending and record
keeping.
(c) Prospectus Delivery.
Immediately prior to execution of this Agreement, the Company shall
have delivered to the Buyer, and as soon as practicable after
execution of this Agreement the Company shall file, Prospectus
Supplements with respect to the Securities to be issued on the
Closing Date, as required under, and in conformity with, the 1933
Act, including Rule 424(b) thereunder. The Company shall provide
the Buyer a reasonable opportunity to comment on a draft of each
Prospectus Supplement and any Issuer Free Writing Prospectus, shall
give due consideration to all such comments and, subject to the
provisions of Section 4(b)
hereof, shall deliver or make available to the Buyer, without
charge, an electronic copy of each form of Prospectus Supplement,
together with the Prospectus, and any Permitted Free Writing
Prospectus on the Closing Date. The Company consents to the use of
the Prospectus (and of any Prospectus Supplements thereto) in
accordance with the provisions of the 1933 Act and with the
securities or “blue sky” laws of the jurisdictions in
which the Securities may be sold by the Buyer, in connection with
the offering and sale of the Securities and for such period of time
thereafter as the Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the 0000 Xxx) is required by the
1933 Act to be delivered in connection with sales of the
Securities. If during such period of time any event shall occur
that in the judgment of the Company and its counsel is required to
be set forth in the Registration Statement or the Prospectus or any
Permitted Free Writing Prospectus or should be set forth therein in
order to make the statements made therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading, or if it is necessary to amend the
Registration Statement or supplement or amend the Prospectus or any
Permitted Free Writing Prospectus to comply with the 1933 Act or
any other applicable law or regulation, the Company shall forthwith
prepare and, subject to Section 4(b) above, file with the SEC an
appropriate amendment to the Registration Statement or Prospectus
Supplement to the Prospectus (or supplement to the Permitted Free
Writing Prospectus) and shall expeditiously furnish or make
available to the Buyer an electronic copy thereof.
(d) Stop Orders. The Company shall
advise the Buyer promptly (but in no event later than 24 hours) and
shall confirm such advice in writing: (i) of the Company’s
receipt of notice of any request by the SEC for amendment of or a
supplement to the Registration Statement, the Prospectus, any
Permitted Free Writing Prospectus or for any additional
information; (ii) of the Company’s receipt of notice of the
issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or prohibiting or suspending the use
of the Prospectus or any Prospectus Supplement, or of the
suspension of qualification of the Securities for offering or sale
in any jurisdiction, or the initiation or contemplated initiation
of any proceeding for such purpose; (iii) of the Company becoming
aware of the happening of any event, which makes any statement of a
material fact made in the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus untrue or which requires the
making of any additions to or changes to the statements then made
in the Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus in order to state a material fact required by
the 1933 Act to be stated therein or necessary in order to make the
statements then made therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading, or of the necessity to amend the Registration Statement
or supplement the Prospectus or any Permitted Free Writing
Prospectus to comply with the 1933 Act or any other law or (iv) if
at any time following the date hereof the Registration Statement is
not effective or is not otherwise available for the issuance of the
Securities or any Prospectus contained therein is not available for
use for any other reason. Thereafter, the Company shall promptly
notify such holders when the Registration Statement, the
Prospectus, any Permitted Free Writing Prospectus and/or any
amendment or supplement thereto, as applicable, is effective and
available for the issuance of the Securities. If at any time the
SEC shall issue any stop order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the
Prospectus or any Prospectus Supplement, the Company shall use best
efforts to obtain the withdrawal of such order at the earliest
possible time.
(e) Blue Sky. The Company shall, on
or before the Closing Date, take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption
for, or to, qualify the Securities for sale to the Buyers at the
Closing pursuant to this Agreement under applicable securities or
“Blue Sky” laws of the states of the United States (or
to obtain an exemption from such qualification), and shall provide
evidence of any such action so taken to the Buyers on or prior to
the Closing Date. Without limiting any other obligation of the
Company under this Agreement, the Company shall timely make all
filings and reports relating to the offer and sale of the
Securities required under all applicable securities laws
(including, without limitation, all applicable federal securities
laws and all applicable “Blue Sky” laws), and the
Company shall comply with all applicable foreign, federal, state
and local laws, statutes, rules, regulations and the like relating
to the offering and sale of the Securities to the
Buyers.
(f) Reporting Status. Until the
date on which the Buyers shall have sold all of the Securities (the
“Reporting
Period”), the Company shall timely file all reports
required to be filed with the SEC pursuant to the 1934 Act, and the
Company shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules
and regulations thereunder would no longer require or otherwise
permit such termination.
(g) Use of Proceeds. The Company
will use the proceeds from the sale of the Securities as described
in the Prospectus Supplement, but not, directly or indirectly, for
(i) except as set forth on Schedule 4(d), the satisfaction of any
indebtedness of the Company or any of its Subsidiaries, (ii) the
redemption or repurchase of any securities of the Company or any of
its Subsidiaries, or (iii) the settlement of any outstanding
litigation.
(h) Listing. The Company shall
promptly secure the listing or designation for quotation (as the
case may be) of all of the Common Shares upon each national
securities exchange and automated quotation system, if any, upon
which the Common Stock is then listed or designated for quotation
(as the case may be) (subject to official notice of issuance) and
shall maintain such listing or designation for quotation (as the
case may be) of all of the Common Shares on such national
securities exchange or automated quotation system. The Company
shall maintain the Common Stock’s listing or authorization
for quotation (as the case may be) on the Principal Market, The New
York Stock Exchange, the NYSE American, the Nasdaq Global Market or
the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the
Company nor any of its Subsidiaries shall take any action which
could be reasonably expected to result in the delisting or
suspension of the Common Stock on an Eligible Market. The Company
shall pay all fees and expenses in connection with satisfying its
obligations under this Section 4(h).
(i) Fees. The Company shall
reimburse the lead Buyer a non-accountable fee of $35,000 for all
costs and expenses incurred by it or its affiliates in connection
with the structuring, documentation, negotiation and closing of the
transactions contemplated by the Transaction Documents (including,
without limitation, as applicable, all reasonable legal fees of
outside counsel and disbursements of Xxxxxx Xxxx & Xxxxxx, LLP,
counsel to the lead Buyer, any other reasonable fees and expenses
in connection with the structuring, documentation, negotiation and
closing of the transactions contemplated by the Transaction
Documents and due diligence and regulatory filings in connection
therewith) (the “Transaction
Expenses”) and shall be withheld by the lead Buyer
from its Purchase Price at the Closing; provided, that the Company
shall promptly reimburse Xxxxxx Xxxx & Xxxxxx, LLP on demand
for all Transaction Expenses not so reimbursed through such
withholding at the Closing. In addition to the Transaction
Expenses, the Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, transfer
agent fees, DTC fees or broker’s commissions (other than for
Persons engaged by any Buyer) relating to or arising out of the
transactions contemplated hereby. The Company shall pay, and hold
each Buyer harmless against, any liability, loss or expense
(including, without limitation, reasonable attorneys’ fees
and out-of-pocket expenses) arising in connection with any claim
relating to any such payment. Except as otherwise set forth in the
Transaction Documents, each party to this Agreement shall bear its
own expenses in connection with the sale of the Securities to the
Buyers.
(j) Pledge of Securities.
Notwithstanding anything to the contrary contained in this
Agreement, the Company acknowledges and agrees that the Securities
may be pledged by a Buyer in connection with a bona fide margin
agreement or other loan or financing arrangement that is secured by
the Securities. The pledge of Securities shall not be deemed to be
a transfer, sale or assignment of the Securities hereunder, and no
Buyer effecting a pledge of Securities shall be required to provide
the Company with any notice thereof or otherwise make any delivery
to the Company pursuant to this Agreement or any other Transaction
Document. The Company hereby agrees to execute and deliver such
documentation as a pledgee of the Securities may reasonably request
in connection with a pledge of the Securities to such pledgee by a
Buyer.
(k) Disclosure of Transactions and Other
Material Information.
(i) Disclosure of Transaction. The
Company shall, on or before 9:30 a.m., New York time, on the
first (1st) Business Day after
the date of this Agreement, issue a press release (the
“Press Release”)
reasonably acceptable to the Buyers disclosing all the material
terms of the transactions contemplated by the Transaction
Documents. On or before 9:30 a.m., New York time, no later than the
fourth (4th) Business Day after
the date of this Agreement, the Company shall file a Current Report
on Form 8-K describing all the material terms of the transactions
contemplated by the Transaction Documents in the form required by
the 1934 Act and attaching all the material Transaction Documents
(including, without limitation, this Agreement (and all schedules
to this Agreement)) (including all attachments, the
“8-K Filing”).
From and after the filing of the Press Release, the Company shall
have disclosed all material, non-public information (if any)
provided to any of the Buyers by the Company or any of its
Subsidiaries or any of their respective officers, directors,
employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective
upon the filing of the Press Release, the Company acknowledges and
agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers,
directors, affiliates, employees or agents, on the one hand, and
any of the Buyers or any of their affiliates, on the other hand,
shall terminate.
(ii) Limitations
on Disclosure. The Company shall not, and the Company shall
cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide any Buyer
with any material, non-public information regarding the Company or
any of its Subsidiaries from and after the date hereof without the
express prior written consent of such Buyer (which may be granted
or withheld in such Buyer’s sole discretion). In the event of
a breach of any of the foregoing covenants, or any of the covenants
or agreements contained in any other Transaction Document, by the
Company, any of its Subsidiaries, or any of its or their respective
officers, directors, employees and agents (as determined in the
reasonable good faith judgment of such Buyer), in addition to any
other remedy provided herein or in the Transaction Documents, such
Buyer shall have the right to make a public disclosure, in the form
of a press release, public advertisement or otherwise, of such
breach or such material, non-public information, as applicable,
without the prior approval by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees or
agents. No Buyer shall have any liability to the Company, any of
its Subsidiaries, or any of its or their respective officers,
directors, employees, affiliates, stockholders or agents, for any
such disclosure. To the extent that the Company delivers any
material, non-public information to a Buyer without such
Buyer’s consent, the Company hereby covenants and agrees that
such Buyer shall not have any duty of confidentiality with respect
to, or a duty not to trade on the basis of, such material,
non-public information. Subject to the foregoing, neither the
Company, its Subsidiaries nor any Buyer shall issue any press
releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, the Company
shall be entitled, without the prior approval of any Buyer, to make
the Press Release and any press release or other public disclosure
with respect to such transactions (i) in substantial conformity
with the 8-K Filing and contemporaneously therewith and (ii) as is
required by applicable law and regulations (provided that in the
case of clause (i) each Buyer shall be consulted by the Company in
connection with any such press release or other public disclosure
prior to its release). Without the prior written consent of the
applicable Buyer (which may be granted or withheld in such
Buyer’s sole discretion), the Company shall not (and shall
cause each of its Subsidiaries and affiliates to not) disclose the
name of such Buyer in any filing, announcement, release or
otherwise. Notwithstanding anything contained in this Agreement to
the contrary and without implication that the contrary would
otherwise be true, the Company expressly acknowledges and agrees
that no Buyer shall have (unless expressly agreed to by a
particular Buyer after the date hereof in a written definitive and
binding agreement executed by the Company and such particular Buyer
(it being understood and agreed that no Buyer may bind any other
Buyer with respect thereto)), any duty of confidentiality with
respect to, or a duty not to trade on the basis of, any material,
non-public information regarding the Company or any of its
Subsidiaries.
(l) Additional Issuance of
Securities. The Company agrees that for the period
commencing on the date hereof and ending on the date immediately
following the twentieth (20th) Business Day after
the Closing Date (the “Restricted Period”), neither the Company nor
any of its Subsidiaries shall directly or indirectly:
(i) file a registration
statement under the 1933 Act relating to securities that are not
the Common Shares (other than a registration statement on Form S-8
or such supplements or amendments to registration statements that
are outstanding and have been declared effective by the SEC as of
the date hereof (solely to the extent necessary to keep such
registration statements effective and available and not with
respect to any Subsequent Placement));
(ii) amend
or modify (whether by an amendment, waiver, exchange of securities,
or otherwise) any of the Company’s warrants to purchase
Common Stock that are outstanding as of the date hereof;
or
(iii) issue,
offer, sell, grant any option or right to purchase, or otherwise
dispose of (or announce any issuance, offer, sale, grant of any
option or right to purchase or other disposition of) any equity
security or any equity-linked or related security (including,
without limitation, any “equity security” (as that term
is defined under Rule 405 promulgated under the 1933 Act)), any
Convertible Securities (as defined below), any debt, any preferred
stock or any purchase rights (any such issuance, offer, sale,
grant, disposition or announcement (whether occurring during the
Restricted Period or at any time thereafter) is referred to as a
“Subsequent
Placement”). Notwithstanding the foregoing, this
Section 4(l) shall not apply in
respect of the issuance of (A) shares of Common Stock or standard
options to purchase Common Stock to directors, officers or
employees of the Company in their capacity as such pursuant to an
Approved Stock Plan (as defined below), provided that the exercise
price of any such options is not lowered, none of such options are
amended to increase the number of shares issuable thereunder and
none of the terms or conditions of any such options are otherwise
materially changed in any manner that adversely affects any of the
Buyers; (B) shares of Common Stock issued upon the conversion or
exercise of Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (A) above) issued prior to the date
hereof, provided that the conversion, exercise or other method of
issuance (as the case may be) of any such Convertible Security is
made solely pursuant to the conversion, exercise or other method of
issuance (as the case may be) provisions of such Convertible
Security that were in effect on the date immediately prior to the
date of this Agreement, the conversion, exercise or issuance price
of any such Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (A) above) is not lowered, none of such
Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are
covered by clause (A) above) are amended to increase the number of
shares issuable thereunder and none of the terms or conditions of
any such Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (A) above) are otherwise materially
changed in any manner that adversely affects any of the Buyers; and
(C) the Common Shares (each of the foregoing in clauses (A) through
(C), collectively the “Excluded Securities”).
“Approved Stock
Plan” means any employee benefit plan which has been
approved by the board of directors of the Company prior to or
subsequent to the date hereof pursuant to which shares of Common
Stock and standard options to purchase Common Stock may be issued
to any employee, officer or director for services provided to the
Company in their capacity as such. “Convertible Securities” means any
capital stock or other security of the Company or any of its
Subsidiaries that is at any time and under any circumstances
directly or indirectly convertible into, exercisable or
exchangeable for, or which otherwise entitles the holder thereof to
acquire, any capital stock or other security of the Company
(including, without limitation, Common Stock) or any of its
Subsidiaries.
(m) Conduct of Business. The
business of the Company and its Subsidiaries shall not be conducted
in violation of any law, ordinance or regulation of any
Governmental Entity, except where such violations would not
reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect.
(n) Passive Foreign Investment
Company. The Company shall conduct its business, and shall
cause its Subsidiaries to conduct their respective businesses, in
such a manner as will ensure that the Company will not be deemed to
constitute a passive foreign investment company within the meaning
of Section 1297 of the Code.
(o) Regulation M. The Company will
not take any action prohibited by Regulation M under the 1934 Act,
in connection with the distribution of the Securities contemplated
hereby.
(p) Closing Documents. On or prior
to fourteen (14) calendar days after the Closing Date, the Company
agrees to deliver, or cause to be delivered, to each Buyer and
Xxxxxx Xxxx & Xxxxxx, LLP a complete closing set of the
executed Transaction Documents, Securities and any other document
required to be delivered to any party pursuant to
Section 7 hereof or otherwise.
5.
REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a) Register. The Company shall
maintain at its principal executive offices (or such other office
or agency of the Company as it may designate by notice to each
holder of Securities), a register for the Common Shares in which
the Company shall record the name and address of the Person in
whose name the Common Shares have been issued (including the name
and address of each transferee), the number of Common Shares held
by such Person. The Company shall keep the register open and
available at all times during business hours for inspection of any
Buyer or its legal representatives.
(b) Transfer Agent Instructions.
The Company shall issue irrevocable instructions to its Transfer
Agent (the “Irrevocable
Transfer Agent Instructions”) to credit shares to the
applicable balance accounts at DTC, registered in the name of each
Buyer or its respective nominee(s), for the Common Shares in such
amounts as specified by the Buyer prior to the Closing Date. The
Company represents and warrants that no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this
Section 5(b) will be given
by the Company to its Transfer Agent with respect to the
Securities, and that the Securities shall otherwise be freely
transferable on the books and records of the Company, as
applicable, to the extent provided in this Agreement and the other
Transaction Documents. The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to a
Buyer. Accordingly, the Company acknowledges that the remedy at law
for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in
the event of a breach or threatened breach by the Company of the
provisions of this Section 5(b), that a Buyer shall be entitled,
in addition to all other available remedies, to an order and/or
injunction restraining any breach and requiring immediate issuance
and transfer, without the necessity of showing economic loss and
without any bond or other security being required. The Company
shall cause its counsel to issue a legal opinion referred to in the
Irrevocable Transfer Agent Instructions to the Transfer Agent at
the Closing. Any fees (with respect to the Transfer Agent, counsel
to the Company or otherwise) associated with the issuance of such
opinions or the removal of any legends on any of the Securities
shall be borne by the Company.
(c) Legends. Certificates and any
other instruments evidencing the Securities shall not bear any
restrictive or other legend.
The
obligation of the Company hereunder to issue and sell the Common
Shares to each Buyer at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions,
provided that these conditions are for the Company’s sole
benefit and may be waived by the Company at any time in its sole
discretion by providing each Buyer with prior written notice
thereof:
(a) Such Buyer shall
have executed each of the other Transaction Documents to which it
is a party and delivered the same to the Company.
(b) Such Buyer and each
other Buyer shall have delivered to the Company the Purchase Price
for the Common Shares being purchased by such Buyer at the Closing
by wire transfer of immediately available funds in accordance with
the Flow of Funds Letter.
(c) The representations
and warranties of such Buyer shall be true and correct in all
material respects as of the date when made and as of the Closing
Date as though originally made at that time (except for
representations and warranties that speak as of a specific date,
which shall be true and correct as of such specific date), and such
Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by such
Buyer at or prior to the Closing Date.
7.
CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.
The obligation of
each Buyer hereunder to purchase its Common Shares at the Closing
is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions
are for each Buyer’s sole benefit and may be waived by such
Buyer at any time in its sole discretion by providing the Company
with prior written notice thereof:
(a) The Company shall
have duly executed and delivered to such Buyer each of the
Transaction Documents and the Company shall have duly executed and
delivered to such Buyer (x) such aggregate number of Common Shares
set forth across from such Buyer’s name in column (3) of the
Schedule of Buyers as being purchased by such Buyer at the Closing
pursuant to this Agreement.
(b) Such Buyer shall
have received the opinion of Disclosure Law Group, a Professional
Corporation, the Company’s counsel, dated as of the Closing
Date, in the form acceptable to such Buyer.
(c) The Company shall
have delivered to such Buyer a copy of the Irrevocable Transfer
Agent Instructions, in the form acceptable to such Buyer, which
instructions shall have been delivered to and acknowledged in
writing by the Company’s transfer agent.
(d) The Company shall
have delivered to such Buyer a certificate evidencing the formation
and good standing of the Company issued by the Secretary of State
of Delaware as of a date within ten (10) days of the Closing
Date.
(e) The Company shall
have delivered to such Buyer a certificate evidencing the
Company’s qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of
each jurisdiction in which the Company conducts business and is
required to so qualify, as of a date within ten (10) days of the
Closing Date.
(f) The Company shall
have delivered to such Buyer a certificate, in the form acceptable
to such Buyer, executed by the Secretary of the Company and dated
as of the Closing Date, as to (i) the resolutions consistent with
Section 3(b) as adopted by
the Company’s board of directors in a form reasonably
acceptable to such Buyer, (ii) the Certificate of Incorporation of
the Company and (iii) the Bylaws of the Company, each as in
effect at the Closing.
(g) Each and every
representation and warranty of the Company shall be true and
correct as of the date when made and as of the Closing Date as
though originally made at that time (except for representations and
warranties that speak as of a specific date, which shall be true
and correct as of such specific date) and the Company shall have
performed, satisfied and complied in all respects with the
covenants, agreements and conditions required to be performed,
satisfied or complied with by the Company at or prior to the
Closing Date. Such Buyer shall have received a certificate, duly
executed by the Chief Executive Officer of the Company, dated as of
the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by such Buyer in the form
acceptable to such Buyer.
(h) The Company shall
have delivered to such Buyer a letter from the Company’s
transfer agent certifying the number of shares of Common Stock
outstanding on the Closing Date immediately prior to the
Closing.
(i) The Common Stock
(A) shall be designated for quotation or listed (as applicable) on
the Principal Market and (B) shall not have been suspended, as of
the Closing Date, by the SEC or the Principal Market from trading
on the Principal Market nor shall suspension by the SEC or the
Principal Market have been threatened, as of the Closing Date,
either (I) in writing by the SEC or the Principal Market or (II) by
falling below the minimum maintenance requirements of the Principal
Market.
(j) The Company shall
have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities,
including without limitation, those required by the Principal
Market, if any.
(k) No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or
Governmental Entity of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the
Transaction Documents.
(l) Since the date of
execution of this Agreement, no event or series of events shall
have occurred that reasonably would have or result in a Material
Adverse Effect.
(m) The Company shall
have obtained approval of the Principal Market to list or designate
for quotation (as the case may be) the Common Shares.
(n) Such Buyer shall
have received a letter on the letterhead of the Company, duly
executed by the Chief Executive Officer of the Company, setting
forth the wire amounts of each Buyer and the wire transfer
instructions of the Company (the “Flow of Funds
Letter”).
(o) From the date
hereof to the Closing Date, (i) trading in the Common Stock shall
not have been suspended by the SEC or the Principal Market (except
for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the
Closing), and, (ii) at any time prior to the Closing Date, trading
in securities generally as reported by Bloomberg L.P. shall not
have been suspended or limited, or minimum prices shall not have
been established on securities whose trades are reported by such
service, or on the Principal Market, nor shall a banking moratorium
have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material
adverse change in, any financial market which, in each case, in the
reasonable judgment of each Buyer, makes it impracticable or
inadvisable to purchase the Securities at the Closing
(p) The Registration
Statement shall be effective and available for the issuance and
sale of the Securities hereunder and the Company shall have
delivered to such Buyer the Prospectus and the Prospectus
Supplement as required thereunder.
(q) The Company and its
Subsidiaries shall have delivered to such Buyer such other
documents, instruments or certificates relating to the transactions
contemplated by this Agreement as such Buyer or its counsel may
reasonably request.
In the
event that the Closing shall not have occurred with respect to a
Buyer within five (5) days of the date hereof, then such Buyer
shall have the right to terminate its obligations under this
Agreement with respect to itself at any time on or after the close
of business on such date without liability of such Buyer to any
other party; provided, however, (i) the right to terminate this
Agreement under this Section 8 shall not be available to such Buyer
if the failure of the transactions contemplated by this Agreement
to have been consummated by such date is the result of such
Buyer’s breach of this Agreement and (ii) the abandonment of
the sale and purchase of the Common Shares shall be applicable only
to such Buyer providing such written notice, provided further that
no such termination shall affect any obligation of the Company
under this Agreement to reimburse such Buyer for the expenses
described in Section 4(i)
above. Nothing contained in this Section 8 shall be deemed to release any party
from any liability for any breach by such party of the terms and
provisions of this Agreement or the other Transaction Documents or
to impair the right of any party to compel specific performance by
any other party of its obligations under this Agreement or the
other Transaction Documents.
9.
MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury
Trial. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. The Company hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
under any of the other Transaction Documents or with any
transaction contemplated hereby or thereby, 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 brought in
an inconvenient forum or that the venue of such suit, action or
proceeding is improper. 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 to
such party at the address for such 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. Nothing contained herein
shall be deemed or operate to preclude any Buyer from bringing suit
or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to such
Buyer or to enforce a judgment or other court ruling in favor of
such Buyer. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(b) Counterparts. This Agreement
may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and
delivered to the other party. In the event that any signature is
delivered by facsimile transmission or by an e-mail which contains
a portable document format (.pdf) file of an executed signature
page, such signature page 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
signature page were an original thereof.
(c) Headings; Gender. The headings
of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
Unless the context clearly indicates otherwise, each pronoun herein
shall be deemed to include the masculine, feminine, neuter,
singular and plural forms thereof. The terms
“including,” “includes,”
“include” and words of like import shall be construed
broadly as if followed by the words “without
limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like
import refer to this entire Agreement instead of just the provision
in which they are found.
(d) Severability; Maximum Payment
Amounts. If any provision of this Agreement is prohibited by
law or otherwise determined to be invalid or unenforceable by a
court of competent jurisdiction, the provision that would otherwise
be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and
enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions
of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or
unenforceable provision(s). Notwithstanding anything to the
contrary contained in this Agreement or any other Transaction
Document (and without implication that the following is required or
applicable), it is the intention of the parties that in no event
shall amounts and value paid by the Company and/or any of its
Subsidiaries (as the case may be), or payable to or received by any
of the Buyers, under the Transaction Documents (including without
limitation, any amounts that would be characterized as
“interest” under applicable law) exceed amounts
permitted under any applicable law. Accordingly, if any obligation
to pay, payment made to any Buyer, or collection by any Buyer
pursuant the Transaction Documents is finally judicially determined
to be contrary to any such applicable law, such obligation to pay,
payment or collection shall be deemed to have been made by mutual
mistake of such Buyer, the Company and its Subsidiaries and such
amount shall be deemed to have been adjusted with retroactive
effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by the applicable law. Such
adjustment shall be effected, to the extent necessary, by reducing
or refunding, at the option of such Buyer, the amount of interest
or any other amounts which would constitute unlawful amounts
required to be paid or actually paid to such Buyer under the
Transaction Documents. For greater certainty, to the extent that
any interest, charges, fees, expenses or other amounts required to
be paid to or received by such Buyer under any of the Transaction
Documents or related thereto are held to be within the meaning of
“interest” or another applicable term to otherwise be
violative of applicable law, such amounts shall be pro-rated over
the period of time to which they relate.
(e) Entire Agreement; Amendments.
This Agreement, the other Transaction Documents and the schedules
and exhibits attached hereto and thereto and the instruments
referenced herein and therein supersede all other prior oral or
written agreements between the Buyers, the Company, its
Subsidiaries, their affiliates and Persons acting on their behalf,
including, without limitation, any transactions by any Buyer with
respect to Common Stock or the Securities, and the other matters
contained herein and therein, and this Agreement, the other
Transaction Documents, the schedules and exhibits attached hereto
and thereto and the instruments referenced herein and therein
contain the entire understanding of the parties solely with respect
to the matters covered herein and therein; provided, however,
nothing contained in this Agreement or any other Transaction
Document shall (or shall be deemed to) (i) have any effect on any
agreements any Buyer has entered into with, or any instruments any
Buyer has received from, the Company or any of its Subsidiaries
prior to the date hereof with respect to any prior investment made
by such Buyer in the Company or (ii) waive, alter, modify or amend
in any respect any obligations of the Company or any of its
Subsidiaries, or any rights of or benefits to any Buyer or any
other Person, in any agreement entered into prior to the date
hereof between or among the Company and/or any of its Subsidiaries
and any Buyer, or any instruments any Buyer received from the
Company and/or any of its Subsidiaries prior to the date hereof,
and all such agreements and instruments shall continue in full
force and effect. Except as specifically set forth herein or
therein, neither the Company nor any Buyer makes any
representation, warranty, covenant or undertaking with respect to
such matters. For clarification purposes, the Recitals are part of
this Agreement. No provision of this Agreement may be amended other
than by an instrument in writing signed by the Company and the
Required Holders (as defined below), and any amendment to any
provision of this Agreement made in conformity with the provisions
of this Section 9(e) shall be binding on all Buyers and
holders of Securities, as applicable, provided that no such
amendment shall be effective to the extent that it (A) applies to
less than all of the holders of the Securities then outstanding or
(B) imposes any obligation or liability on any Buyer without such
Buyer’s prior written consent (which may be granted or
withheld in such Buyer’s sole discretion). No waiver shall be
effective unless it is in writing and signed by an authorized
representative of the waiving party, provided that the Required
Holders may waive any provision of this Agreement, and any waiver
of any provision of this Agreement made in conformity with the
provisions of this Section 9(e) shall be binding on all
Buyers and holders of Securities, as applicable, provided that no
such waiver shall be effective to the extent that it (1) applies to
less than all of the holders of the Securities then outstanding
(unless a party gives a waiver as to itself only) or (2) imposes
any obligation or liability on any Buyer without such Buyer’s
prior written consent (which may be granted or withheld in such
Buyer’s sole discretion). No consideration (other than
reimbursement of legal fees) 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 also
is offered to all of the parties to the Transaction Documents or
all holders of the Common Shares (as the case may be). The Company
has not, directly or indirectly, made any agreements with any
Buyers relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in
the Transaction Documents. Without limiting the foregoing, the
Company confirms that, except as set forth in this Agreement, no
Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company, any Subsidiary
or otherwise. As a material inducement for each Buyer to enter into
this Agreement, the Company expressly acknowledges and agrees that
(x) no due diligence or other investigation or inquiry conducted by
a Buyer, any of its advisors or any of its representatives shall
affect such Buyer’s right to rely on, or shall modify or
qualify in any manner or be an exception to any of, the
Company’s representations and warranties contained in this
Agreement or any other Transaction Document and (y) unless a
provision of this Agreement or any other Transaction Document is
expressly preceded by the phrase “except as disclosed in the
SEC Documents,” nothing contained in any of the SEC Documents
shall affect such Buyer’s right to rely on, or shall modify
or qualify in any manner or be an exception to any of, the
Company’s representations and warranties contained in this
Agreement or any other Transaction Document. “Required Holders” means Buyers
entitled to purchase, in the aggregate, at least a majority of the
number of Common Shares at the Closing.
(f) Notices. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be
deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party) or electronic mail
(provided that such sent email is kept on file (whether
electronically or otherwise) by the sending party and the sending
party does not receive an automatically generated message from the
recipient’s email server that such e-mail could not be
delivered to such recipient); or (iii) one (1) Business Day after
deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive
the same. The addresses, facsimile numbers and e-mail addresses for
such communications shall be:
If to
the Company:
0000
Xxxxxxxx Xxxxxx, Xxxxx #000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Attention: Chief
Executive Officer
E-Mail:
xxx.xxxx@xxxxxxxxxxx.xxx
With a
copy (for informational purposes only) to:
Disclosure Law
Group, a Professional Corporation
000
Xxxx Xxxxxxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxxxxx, Esq.
E-Mail:
xxxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
If to
the Transfer Agent:
Issuer
Direct Corporation
0000
Xxxxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000
Telephone: (000)
000-0000
If to a
Buyer, to its address, e-mail address and facsimile number set
forth on the Schedule of Buyers, with copies to such Buyer’s
representatives as set forth on the Schedule of
Buyers,
with a
copy (for informational purposes only) to:
Xxxxxx
Xxxx & Xxxxxx LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxxxxxx, Esq.
E-mail:
xxxxxxxxxx@xxxxxxxxxx.xxx
or to
such other address, e-mail address and/or facsimile number and/or
to the attention of such other Person as the recipient party has
specified by written notice given to each other party five (5) days
prior to the effectiveness of such change, provided that Xxxxxx
Xxxx & Xxxxxx LLP shall only be provided copies of notices sent
to the lead Buyer. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s
facsimile machine or e-mail containing the time, date, recipient
facsimile number and, with respect to each facsimile transmission,
an image of the first page of such transmission or (C) provided by
an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns (but excluding
any purchasers of Common Shares, unless pursuant to a written
assignment by such Buyer). The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior
written consent of the Required Holders. A Buyer may assign some or
all of its rights hereunder in connection with any transfer of any
of its Securities without the consent of the Company, in which
event such assignee shall be deemed to be a Buyer hereunder with
respect to such assigned rights.
(h) No Third Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by,
any other Person, other than the Indemnitees referred to in
Section 9(k).
(i) Survival. The representations,
warranties, agreements and covenants shall survive the Closing.
Each Buyer shall be responsible only for its own representations,
warranties, agreements and covenants hereunder.
(j) Further Assurances. Each party
shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents, as any
other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
(i) In consideration of
each Buyer’s execution and delivery of the Transaction
Documents and acquiring the Securities thereunder and in addition
to all of the Company’s other obligations under the
Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Buyer and each holder of any Securities and
all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing
Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the
“Indemnitees”)
from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any
such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’
fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or
relating to (i) any misrepresentation or breach of any
representation or warranty made by the Company or any Subsidiary in
any of the Transaction Documents, (ii) any breach of any covenant,
agreement or obligation of the Company or any Subsidiary contained
in any of the Transaction Documents or (iii) any cause of action,
suit, proceeding or claim brought or made against such Indemnitee
by a third party (including for these purposes a derivative action
brought on behalf of the Company or any Subsidiary) or which
otherwise involves such Indemnitee that arises out of or results
from (A) the execution, delivery, performance or enforcement of any
of the Transaction Documents, (B) any transaction financed or to be
financed in whole or in part, directly or indirectly, with the
proceeds of the issuance of the Securities, (C) any disclosure
properly made by such Buyer pursuant to Section 4(k),
or (D) the status of such Buyer or holder of the Securities either
as an investor in the Company pursuant to the transactions
contemplated by the Transaction Documents or as a party to this
Agreement (including, without limitation, as a party in interest or
otherwise in any action or proceeding for injunctive or other
equitable relief). To the extent that the foregoing undertaking by
the Company may be unenforceable for any reason, the Company shall
make the maximum contribution to the payment and satisfaction of
each of the Indemnified Liabilities which is permissible under
applicable law.
(ii) Promptly
after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of
any action or proceeding (including any governmental action or
proceeding) involving an Indemnified Liability, such Indemnitee
shall, if a claim in respect thereof is to be made against the
Company under this Section 9(k), deliver to the Company a written
notice of the commencement thereof, and the Company shall have the
right to participate in, and, to the extent the Company so desires,
to assume control of the defense thereof with counsel mutually
satisfactory to the Company and the Indemnitee; provided, however,
that an Indemnitee shall have the right to retain its own counsel
with the fees and expenses of such counsel to be paid by the
Company if: (A) the Company has agreed in writing to pay such fees
and expenses; (B) the Company shall have failed promptly to assume
the defense of such Indemnified Liability and to employ counsel
reasonably satisfactory to such Indemnitee in any such Indemnified
Liability; or (C) the named parties to any such Indemnified
Liability (including any impleaded parties) include both such
Indemnitee and the Company, and such Indemnitee shall have been
advised by counsel that a conflict of interest is likely to exist
if the same counsel were to represent such Indemnitee and the
Company (in which case, if such Indemnitee notifies the Company in
writing that it elects to employ separate counsel at the expense of
the Company, then the Company shall not have the right to assume
the defense thereof and such counsel shall be at the expense of the
Company), provided further, that in the case of clause (C) above
the Company shall not be responsible for the reasonable fees and
expenses of more than one (1) separate legal counsel for the
Indemnitees. The Indemnitee shall reasonably cooperate with the
Company in connection with any negotiation or defense of any such
action or Indemnified Liability by the Company and shall furnish to
the Company all information reasonably available to the Indemnitee
which relates to such action or Indemnified Liability. The Company
shall keep the Indemnitee reasonably apprised at all times as to
the status of the defense or any settlement negotiations with
respect thereto. The Company shall not be liable for any settlement
of any action, claim or proceeding effected without its prior
written consent, provided, however, that the Company shall not
unreasonably withhold, delay or condition its consent. The Company
shall not, without the prior written consent of the Indemnitee,
consent to entry of any judgment or enter into any settlement or
other compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnitee
of a release from all liability in respect to such Indemnified
Liability or litigation, and such settlement shall not include any
admission as to fault on the part of the Indemnitee. Following
indemnification as provided for hereunder, the Company shall be
subrogated to all rights of the Indemnitee with respect to all
third parties, firms or corporations relating to the matter for
which indemnification has been made. The failure to deliver written
notice to the Company within a reasonable time of the commencement
of any such action shall not relieve the Company of any liability
to the Indemnitee under this Section 9(k), except to the extent that the
Company is materially and adversely prejudiced in its ability to
defend such action.
(iii) The
indemnification required by this Section 9(k) shall be made by periodic payments
of the amount thereof during the course of the investigation or
defense, within ten (10) days after bills are received or
Indemnified Liabilities are incurred.
(iv) The
indemnity agreement contained herein shall be in addition to (A)
any cause of action or similar right of the Indemnitee against the
Company or others, and (B) any liabilities the Company may be
subject to pursuant to the law.
(l) Construction. 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. No specific
representation or warranty shall limit the generality or
applicability of a more general representation or warranty. Each
and every reference to share prices, shares of Common Stock and any
other numbers in this Agreement that relate to the Common Stock
shall be automatically adjusted for any stock splits, stock
dividends, stock combinations, recapitalizations or other similar
transactions that occur with respect to the Common Stock after the
date of this Agreement. Notwithstanding anything in this Agreement
to the contrary, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty against, or a
prohibition of, any actions with respect to the borrowing of,
arrangement to borrow, identification of the availability of,
and/or securing of, securities of the Company in order for such
Buyer (or its broker or other financial representative) to effect
short sales or similar transactions in the future.
(m) Remedies. Each Buyer and in the
event of assignment by Buyer of its rights and obligations
hereunder, each holder of Securities, shall have all rights and
remedies set forth in the Transaction Documents and all rights and
remedies which such holders have been granted at any time under any
other agreement or contract and all of the rights which such
holders have under any law. Any Person having any rights under any
provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law.
Furthermore, the Company recognizes that in the event that it or
any Subsidiary fails to perform, observe, or discharge any or all
of its or such Subsidiary’s (as the case may be) obligations
under the Transaction Documents, any remedy at law would inadequate
relief to the Buyers. The Company therefore agrees that the Buyers
shall be entitled to specific performance and/or temporary,
preliminary and permanent injunctive or other equitable relief from
any court of competent jurisdiction in any such case without the
necessity of proving actual damages and without posting a bond or
other security. The remedies provided in this Agreement and the
other Transaction Documents shall be cumulative and in addition to
all other remedies available under this Agreement and the other
Transaction Documents, at law or in equity (including a decree of
specific performance and/or other injunctive relief).
(n) Withdrawal Right.
Notwithstanding anything to the contrary contained in (and without
limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option
under a Transaction Document and the Company or any Subsidiary does
not timely perform its related obligations within the periods
therein provided, then such Buyer may rescind or withdraw, in its
sole discretion from time to time upon written notice to the
Company or such Subsidiary (as the case may be), any relevant
notice, demand or election in whole or in part without prejudice to
its future actions and rights.
(o) Payment Set Aside; Currency. To
the extent that the Company makes a payment or payments to any
Buyer hereunder or pursuant to any of the other Transaction
Documents or any of the Buyers enforce or exercise their rights
hereunder or thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, foreign, state
or federal law, common law or equitable cause of action), then to
the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred. Unless otherwise
expressly indicated, all dollar amounts referred to in this
Agreement and the other Transaction Documents are in United States
Dollars (“U.S.
Dollars”), and all amounts owing under this Agreement
and all other Transaction Documents shall be paid in U.S. Dollars.
All amounts denominated in other currencies (if any) shall be
converted into the U.S. Dollar equivalent amount in accordance with
the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount
of currency to be converted into U.S. Dollars pursuant to this
Agreement, the U.S. Dollar exchange rate as published in the Wall
Street Journal on the relevant date of calculation.
(i) If for the purpose
of obtaining or enforcing judgment against the Company in
connection with this Agreement or any other Transaction Document in
any court in any jurisdiction it becomes necessary to convert into
any other currency (such other currency being hereinafter in this
Section 9(p) referred to
as the “Judgment
Currency”) an amount due in US Dollars under this
Agreement, the conversion shall be made at the Exchange Rate
prevailing on the Business Day immediately preceding:
(1) the date actual
payment of the amount due, in the case of any proceeding in the
courts of New York or in the courts of any other jurisdiction that
will give effect to such conversion being made on such date:
or
(2) the date on which
the foreign court determines, in the case of any proceeding in the
courts of any other jurisdiction (the date as of which such
conversion is made pursuant to this Section 9(p)(i)(1) being hereinafter referred
to as the “Judgment
Conversion Date”).
(ii) If
in the case of any proceeding in the court of any jurisdiction
referred to in Section 9(p)(i)(1) above, there is a change in
the Exchange Rate prevailing between the Judgment Conversion Date
and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at
the Exchange Rate prevailing on the date of payment, will produce
the amount of US Dollars which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial
order at the Exchange Rate prevailing on the Judgment Conversion
Date.
(iii) Any
amount due from the Company under this provision shall be due as a
separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or
any other Transaction Document.
(q) Independent Nature of Buyers’
Obligations and Rights. The obligations of each Buyer under
the Transaction Documents are several and not joint with the
obligations of any other Buyer, and no Buyer shall be responsible
in any way for the performance of the obligations of any other
Buyer under any Transaction Document. Nothing contained herein or
in any other Transaction Document, and no action taken by any Buyer
pursuant hereto or thereto, shall be deemed to constitute the
Buyers as, and the Company acknowledges that the Buyers do not so
constitute, a partnership, an association, a joint venture or any
other kind of group or entity, or create a presumption that the
Buyers are in any way acting in concert or as a group or entity,
and the Company shall not assert any such claim with respect to
such obligations or the transactions contemplated by the
Transaction Documents or any matters, and the Company acknowledges
that the Buyers are not acting in concert or as a group, and the
Company shall not assert any such claim, with respect to such
obligations or the transactions contemplated by the Transaction
Documents. The decision of each Buyer to purchase Securities
pursuant to the Transaction Documents has been made by such Buyer
independently of any other Buyer. Each Buyer acknowledges that no
other Buyer has acted as agent for such Buyer in connection with
such Buyer making its investment hereunder and that no other Buyer
will be acting as agent of such Buyer in connection with monitoring
such Buyer’s investment in the Securities or enforcing its
rights under the Transaction Documents. The Company and each Buyer
confirms that each Buyer has independently participated with the
Company and its Subsidiaries in the negotiation of the transaction
contemplated hereby with the advice of its own counsel and
advisors. Each Buyer shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of any other Transaction
Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any proceeding for such purpose.
The use of a single agreement to effectuate the purchase and sale
of the Securities contemplated hereby was solely in the control of
the Company, not the action or decision of any Buyer, and was done
solely for the convenience of the Company and its Subsidiaries and
not because it was required or requested to do so by any Buyer. It
is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between
the Company, each Subsidiary and a Buyer, solely, and not between
the Company, its Subsidiaries and the Buyers collectively and not
between and among the Buyers.
[signature
pages follow]
IN WITNESS WHEREOF, each Buyer and the
Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written
above.
|
COMPANY:
|
|
By:
Name:
Title:
|
IN WITNESS WHEREOF, each Buyer and the
Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written
above.
|
|
BUYER:
By:
Name:
Title:
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