REGULATION S SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
REGULATION
S SECURITIES PURCHASE AGREEMENT
This
Regulation S Securities Purchase Agreement (“the Agreement”) is made as
of November 5, 2007 by and between ZAP, a California corporation (the
“Company”), the address of which is 000 Xxxxxx Xxxxxx, Xxxxx Xxxx
Xxxxxxxxxx 00000, and Xx Xxxxxx LLC, a United Arab Emirates limited liability
company, the address of which is X.X. Xxx 00, Xxxxx, Xxxxxx Xxxx Xxxxxxxx (the
“Purchaser”). The Company and the Purchaser, intending to be bound and
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, covenant and agree as follows:
ARTICLE
I
PURCHASE,
SALE AND TERMS OF SHARES
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1.1.
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Purchase
and Sale. At the Closing (as defined in Section 1.2), the
Company agrees to sell to the Purchaser in an offshore transaction
negotiated outside the U.S. and to be consummated and closed outside
the
U.S. and, in consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this
Agreement, the Purchaser agrees to purchase, subject to the conditions
hereinafter set forth, 5,813,954 shares of the Company’s common stock (the
“Shares”) and warrants for the Purchaser to purchase an additional
1,744,186 shares of the Company’s common stock in accordance with the
terms and conditions of a warrant, the form of which is attached
hereto as
Exhibit A (the “Warrant”, the shares underlying the Warrant,
the “Warrant Shares”, and collectively with the Shares, the
“Securities”), which Warrant shall be executed and delivered by an
authorized officer of the Company on the date hereof. The purchase
price
shall be Five Million Dollars ($5,000,000 USD) (“Purchase Price”).
Subject to the terms and conditions of this Agreement, the Company
has
authorized the sale and issuance to the Purchaser of the Securities
(the
“Issuance”). This is a binding, irrevocable commitment to purchase
the Securities in an exempt transaction subject to Regulation
S.
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1.2.
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Closing.
The closing of the Issuance to the Purchaser (the “Closing”) shall
take place simultaneously with the execution and delivery of this
Agreement at the offices of the Purchaser. At the Closing, the Company
shall deliver to the Purchaser the Agreement duly executed by the
Company,
against receipt by the Company of a check or wire transfer in an
aggregate
amount equal to the Purchase Price and the Agreement duly executed
by the
Purchaser. The wire transfer shall be sent pursuant to the following
instructions:
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Xxxxxxxxxx
& Xxxxx LLP
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Client
Trust Account
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Bank
Name:
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Comerica
Bank of California
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Westwood
Xxxxxx
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00000
Xxxxxxxx Xxxxxxxxx
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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Telephone:
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000-000-0000
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ABA
Number:
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000000000
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ACCT.
Number:
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1891937581
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Beneficiary:
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Xxxxxxxxxx
& Xxxxx LLP
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Client
Trust Account
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Re:
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Client
Name: ZAP
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1.3.
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Representations
by the Purchaser. The Purchaser makes the following
representations and warranties to the
Company:
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A.
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Access
to Information The Purchaser, in making the decision to purchase the
Securities, has relied upon the representations and warranties contained
in this Agreement as well as independent investigations made by it
and/or
its representatives, if any. The Purchaser and/or its
representatives during the course of this transaction, and prior
to the
purchase of the Securities, has had the opportunity to ask questions
of
and receive answers from the management of the Company concerning
the
business of the Company and to receive any additional information,
documents, records and books relative to the business, assets, financial
condition, results of operations and liabilities (contingent or otherwise)
of the Company. The Purchaser has carefully reviewed all
filings of the Company with the United States Securities and Exchange
Commission.
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B.
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Sophistication
and Knowledge. The Purchaser and/or its representatives has such
knowledge and experience in financial and business matters that it
can
represent itself and is capable of evaluating the merits and risks
of the
purchase of the Securities. The Purchaser is not relying on the
Company with respect to the tax and other economic considerations
of an
investment in the Securities, and the Purchaser has relied on the
advice
of, or has consulted with, only the Purchaser's own advisor(s). The
Purchaser represents that it has not been organized for the purpose
of
acquiring the Securities.
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C.
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Lack
of Liquidity. The Purchaser acknowledges that the purchase
of the Securities involves a high degree of risk and further acknowledges
that it can bear the economic risk of the purchase of the Securities,
including the total loss of its investment. The Purchaser
acknowledges and understands that the Securities may not be sold
to a U.S.
Person (as hereinafter defined) or into the United States for a period
of
one (1) year from the date of purchase and that the Purchaser has
no
present need for liquidity in connection with its purchase of the
Securities. The Purchaser shall comply in all respects with US
federal and state securities laws, particularly with respect to any
resale
of the Securities in any transaction subject to United States
jurisdiction.
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D.
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No
Public Solicitation. The Purchaser is not subscribing for
the Securities as a result of or subsequent to any advertisement,
article,
notice or other communication published in any newspaper, magazine
or
similar media or broadcast over television or radio, or presented
at any
seminar or meeting, or any solicitation of a subscription by a person
not
previously known to the Purchaser in connection with investments
in
securities generally. Neither the Company nor the Purchaser has
engaged in any ‘Directed Selling Efforts in the U.S.’ as defined in
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Regulation
S promulgated by the Securities and Exchange Commission (“SEC”) pursuant
to The Securities Act of 1933 (the “Securities
Act”).
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E.
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Authority. The
Purchaser has full right and power to enter into and perform pursuant
to
this Agreement and make an investment in the Company, and this Agreement
constitutes the Purchaser’s valid and legally binding obligation,
enforceable in accordance with its terms. The Purchaser is authorized
and
otherwise duly qualified to purchase and hold the Securities and
to enter
into this Agreement. This Agreement, and the transactions
contemplated hereby, has been duly approved by the governing body
of the
Purchaser. No other corporate proceedings on the part of the
Purchaser are necessary to authorize the execution and delivery of
this
Agreement or the consummation by the Purchaser of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Purchaser.
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F.
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Brokers
or Finders. No person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest
or valid
claim against or upon the Company for any commission, fee or other
compensation as a finder or broker because of any act or omission
by the
Purchaser or its respective agents.
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G.
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Requirements
for Transfer. After the Securities have been fully paid
for, the Company shall not be required to transfer the Securities
unless
(i) the transferee certifies that he, she or it is not a U.S. Person,
as
defined in Regulation S, if such transfer is requested prior to one
year
from the date the Securities were fully paid for, (ii) such transfer
complies in all respects with all applicable US federal and state
securities laws and (iii) the Purchaser has paid the Company the
Purchase
Price. The Purchaser shall provide an opinion of counsel if
requested.
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H.
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Compliance
with Local Laws. Any resale of the Securities during the ‘distribution
compliance period’ as defined in Rule 902(f) to Regulation S shall only be
made in compliance with exemptions from registration afforded by
Regulation S. Further, any such sale of the Securities in any
jurisdiction outside of the United States will be made in compliance
with
the securities laws of such jurisdiction. The Purchaser will
not offer to sell or sell the Securities in any jurisdiction unless
the
Purchaser obtains all required consents, if any, and has complied
with all
applicable laws.
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I.
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Regulation
S Exemption. The Purchaser understands that the Securities
are being offered and sold to it in reliance on an exemption from
the
registration requirements of United States federal and state securities
laws under Regulation S promulgated under the Securities Act and
that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the
Purchaser set forth herein in order to determine the applicability
of such
exemptions and the suitability of the Purchaser to acquire the
Securities. In this regard, the Purchaser represents, warrants
and agrees that:
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a.
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The
Purchaser is not a U.S. Person (as defined in Regulation S) and is
not an
affiliate (as defined in Rule 501(b) under the Securities Act) of
the
Company.
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b.
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At
the time of the origination of contact concerning this Agreement
and the
date of the execution and delivery of this Agreement, the Purchaser
was
outside of the United States.
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c.
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The
Purchaser will not, during the period commencing on the date of issuance
of the Shares and/or the Warrant Shares and ending on the first
anniversary of such date, or such shorter period as may be permitted
by
Regulation S or other applicable securities law (the “Restricted Period”),
offer, sell, pledge or otherwise transfer the Shares and/or the Warrant
Shares in the United States, or to a U.S. Person for the account
or for
the benefit of a U.S. Person, or otherwise in a manner that is not
in
compliance with Regulation S.
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d.
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The
Purchaser will, after expiration of the Restricted Period, offer,
sell,
pledge or otherwise transfer the Shares and/or the Warrant Shares
only
pursuant to registration under the Securities Act or an available
exemption therefrom and, in accordance with all applicable federal,
state
and foreign securities laws.
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e.
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Neither
the Purchaser nor any person acting on its behalf has engaged in,
and
prior to the expiration of the Restricted Period will engage in,
any short
selling of or any hedging transaction with respect to the Securities,
including without limitation, any put, call or other option transaction,
option writing or equity swap.
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f.
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Neither
the Purchaser nor or any person acting on its behalf has engaged,
nor will
engage, in any directed selling efforts to a U.S. Person with respect
to
the Securities and the Purchaser and any person acting on its behalf
have
complied and will comply with the “offering restrictions” requirements of
Regulation S under the Securities
Act.
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g.
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The
transactions contemplated by this Agreement have not been pre-arranged
with a buyer located in the United States or with a U.S. Person,
and are
not part of a plan or scheme to evade the registration requirements
of the
Securities Act.
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h.
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Neither
the Purchaser nor any person acting on its behalf has undertaken
or
carried out any activity for the purpose of, or that could reasonably
be
expected to have the effect of, conditioning the market in the United
States, its territories or possessions, for any of the
Securities. The Purchaser agrees not to cause any advertisement
of the Securities to be published in any newspaper or periodical
or posted
in any public place and
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not
to issue any circular relating to the Securities, except such
advertisements that include the statements required by Regulation
S under
the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any federal, state and
local
applicable securities laws.
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i.
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Each
certificate representing the Shares and/or the Warrant Shares shall
be
endorsed with the following legends, in addition to any other legend
required to be placed thereon by applicable federal or state securities
laws:
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(A) “THE
SHARES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE SECURITIES
ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.”
(B) “THE
SHARES REPRESENTED HEREBY HAVE BEEN ISSUED TO INVESTORS WHO ARE NOT U.S. PERSONS
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE
SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S
PROMULGATED UNDER THE SECURITIES ACT.”
(C) “TRANSFER
OF THESE SHARES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SUCURITIES ACT, OR PURSUANT
TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
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j.
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The
Purchaser consents to, and the Company shall, make a notation on
its
records and give instructions to any transfer agent of the Company
in
order to implement the restrictions on transfer of the Securities
set
forth in this Article 1.3.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Purchaser as follows, which
representations and warranties shall be true and correct in all material
respects on the effective date hereof:
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2.1
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Organization.
The Company is duly organized, validly existing and in good standing
under
the laws of the State of California and is qualified to conduct its
business as a foreign corporation in each jurisdiction where the
failure
to be so qualified would have a material adverse effect on the
Company.
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2.2
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Authorization.
The Company has full legal right, power and capacity to enter into
this
Agreement and perform its obligations hereunder and
thereunder. Upon execution and delivery of this Agreement by
the parties hereto and thereto, this Agreement shall constitute the
valid
and binding obligation of the Company, enforceable against it in
accordance with their respective terms, except as enforceability
may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other
similar laws affecting the enforcement of creditor rights generally
and by
general equitable principles. This Agreement, and the transactions
contemplated hereby, has been duly approved by the Board of Directors
of
the Company. No other corporate proceedings on the part of the
Company are necessary to authorize the execution and delivery of
this
Agreement or the consummation by the Company of the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Company. Neither the Company nor any of its
subsidiaries is in violation of any of the provisions of their respective
certificate of incorporation, bylaws or equivalent organizational
documents in any material respect.
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2.3
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Outstanding
Stock. All issued and outstanding shares of capital stock of the
Company and each of its subsidiaries have been duly authorized and
validly
issued and are fully paid and nonassessable. The Securities, upon
issuance, are, or will be, free and clear of any security interests,
liens, claims or other encumbrances, subject to restrictions upon
transfer
under the Securities Act of 1933, as amended (the “Act”) and any
applicable state securities laws; have been, or will be, duly and
validly
authorized and on the date of issuance, validly issued, fully paid
and
nonassessable; and will not subject the holders thereof to personal
liability by reason of being such holders. As of September 30, 2007,
the authorized capital of the Company consisted of (i) 200,000,000
shares
of common stock, no par value, of which 49,470,529 shares were issued
and
outstanding and 64,375,263 shares were reserved for issuance pursuant
to
the exercise of outstanding options to purchase common stock, warrant
or
convertible notes and (ii) 50,000,000 shares of preferred stock,
no par
value, of which no shares are issued and outstanding. Except
with respect to the Securities or as set forth above or disclosed
in the
Company SEC Reports, there are no outstanding options, warrants,
subscriptions, calls, convertible securities or other rights, agreements,
arrangements or commitments (contingent or otherwise) (including
any right
of conversion or exchange under any outstanding security, instrument
or
other agreement) obligating the Company or any of its direct or indirect
subsidiaries to issue, deliver or sell, or cause to be issued, delivered
or sold, any shares or obligating them to grant, extend or enter
into any
such agreement or commitment. Except as disclosed in the
Company SEC Reports, there are no outstanding contractual obligations
of
the Company or any of its direct or indirect subsidiaries to repurchase,
redeem or otherwise acquire any shares or make any investment (in
the form
of a loan,
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capital
contribution or otherwise) in any other person other than a subsidiary
of
the Company.
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2.4
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Listing.
The Company’s common stock is quoted on the OTC Bulletin Board under the
symbol “ZAAP”. The Company has not received any oral or written notice
that its common stock is not eligible nor will become ineligible
for
quotation on the OTC Bulletin Board nor that its common does not
meet all
requirements for the continuation of such quotation and the Company
satisfies and as of the Closing, the Company will satisfy all the
requirements for the continued quotation of its common stock on the
OTC
Bulletin Board.
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2.5
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No
Public Solicitation. Neither the Company, nor any of its
affiliates, nor to its knowledge, any person acting on its or their
behalf, has engaged in any form of general solicitation or general
advertising in connection with the Securities, including any
advertisement, article, notice or other communication published in
any
newspaper, magazine or similar media or broadcast over television
or
radio, or seminar or meeting.
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2.6
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Non-contravention. The
execution, delivery and performance of this Agreement by the Company:
(i)
does not violate or conflict with any provisions of the certificate
of
incorporation or bylaws of the Company or any of its subsidiaries,
(ii)
does not conflict with or constitute a violation of any applicable
law,
order, injunction, regulation or ruling of any governmental authority
applicable to the Company or any of its subsidiaries or by which
the
Company or any of its subsidiaries or any of their respective properties
or assets are bound, and (iii) does not, either alone or with the
giving
of notice or the passage of time, or both, violate, conflict with,
or
accelerate the performance required by, any agreement, note, license,
franchise, permit or other instrument to which the Company or any
of its
subsidiaries is a party and will not result in the creation or imposition
of (or the obligation to create or impose) any lien on any of the
Company's or any of its subsidiaries'
assets.
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2.7
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SEC
Reports; Financial Statements.
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A.
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During
the period from January 1, 2005 through the date hereof, the Company
has
filed with the SEC all forms, statements, reports and documents (including
all exhibits, post-effective amendments and supplements thereto)
required
to be filed by it under each of the Securities Act and the Exchange
Act
(collectively, the “Company SEC Reports”), all of which complied when
filed in all material respects with all applicable requirements of
the
appropriate act and the rules and regulations
thereunder.
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B.
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Except
as noted in any subsequent Company SEC Report filed with the SEC
prior to
the date hereof, each of the consolidated financial statements included
in
the Company SEC Reports, together with the related notes and schedules
(collectively, the “Company Financial Statements”), has been prepared in
accordance with U.S. generally accepted accounting principles (“GAAP”)
applied
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on
a consistent basis, and fairly presents the consolidated financial
position of the Company and its subsidiaries as of the respective
dates
thereof and the results of their operations and cash flow for the
periods
then ended, subject, in the case of unaudited interim financial
statements, to normal year-end adjustments (none of which the Company
reasonably believes are or will be material in amount) and the
omission of
footnotes.
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C.
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The
Company SEC Reports filed with the SEC prior to the date hereof do
not
contain any untrue statement of a material fact or omit to state
a
material fact necessary to make the statements made therein not
misleading.
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2.8
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Absence
of Undisclosed Liabilities. Neither the Company nor any of
its subsidiaries had, at September 30, 2007 or has, as of the date
hereof,
any liabilities or obligations, except for (a) liabilities reflected
in
Company SEC Reports filed prior to the date hereof, (b) current
liabilities which were incurred after September 30, 2007 in the ordinary
course of business and consistent with past practice, (c) liabilities
which are of a nature not required to be reflected in the Company
Financial Statements in accordance with GAAP consistently applied
and
which were incurred in the ordinary course of business and (d) other
liabilities in an aggregate amount not exceeding Five Hundred Thousand
Dollars ($500,000 USD).
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2.9
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Absence
of Certain Changes or Events. Except as disclosed in the Company SEC
Reports, during the period from September 30, 2007 to the date hereof,
the
business of the Company and its subsidiaries has been conducted in
the
ordinary course consistent with past practice and there has not been
any
event, occurrence or development that has had, or could reasonably
be
expected to have, individually or in the aggregate, a material adverse
effect.
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2.10
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Insurance. The
Company and each of its subsidiaries has in effect insurance coverage,
including directors and officers' liability insurance, with reputable
insurers which, in respect of amounts, premiums, types and risks
insured,
constitutes reasonably adequate coverage against all risks customarily
insured against by companies comparable in size and operations to
the
Company and its subsidiaries. Neither the Company nor any of
its subsidiaries has received any notice of cancellation of any insurance
policy or binder currently in
effect.
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ARTICLE
III
COVENANTS
AND CONDITIONS OF THE COMPANY
The
Company shall comply with the following covenants:
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3.1
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Operations. From
and after the date hereof through the date that is two years from
the date
hereof, the Company will comply with the reporting requirements of
the
Securities Exchange Act of 1934, as
amended.
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3.2
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Share
Registry; Removal of Legend. Subject to the terms and
conditions set forth in this Agreement, the Purchaser may resell
the
Shares at any time. The Company shall record the ownership of
such Shares in book entry form or otherwise as permitted by the Company’s
transfer agent, and shall remove the restrictive Regulation S legend
after
the Distribution Compliance Period or as permitted under applicable
federal and state securities laws and
regulations.
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ARTICLE
IV
CONDITIONS
TO THE COMPANY'S OBLIGATION TO SELL
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4.1
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Closing
Date. The obligation of the Company hereunder to issue and
sell the Securities to the Purchaser 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 the Investor with prior written notice
thereof:
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A.
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The
Purchaser shall have executed the Agreement and delivered the same
to the
Company.
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B.
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The
Purchaser shall have delivered to the Company the Purchase Price
for the
Securities at the Closing by check or by wire transfer of immediately
available funds pursuant to the wire instructions provided by the
Company.
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C.
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The
representations and warranties of the Purchaser shall be true and
correct
in all material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date), and the Purchaser shall
have
performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to
be
performed, satisfied or complied with by the Purchaser at or prior
to the
Closing Date.
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ARTICLE
V
CONDITIONS
TO PURCHASER'S OBLIGATION TO PURCHASE
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5.1
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Closing
Date. The obligation of the Purchaser hereunder to purchase
the Securities 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 Purchaser's sole benefit and may be waived
by the
Purchaser at any time in its sole discretion by providing the Company
with
prior written notice thereof:
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A.
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The
Company shall have executed and delivered to the Investor (A) the
Agreement, (B) stock certificates representing the Shares at the
Closing
pursuant to this Agreement, and (C) the Warrant at the Closing
pursuant to this Agreement.
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B.
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The
representations and warranties of the Company shall be true and correct
as
of the date when made and as of the Closing Date as though made at
that
time (except for representations and warranties that speak as of
a
specific date) and the
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Company
shall have performed, satisfied and complied in all respects with
the
covenants, agreements and conditions required by the Agreement
to be
performed, satisfied or complied with by the Company at or prior
to the
Closing Date.
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C.
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The
board of directors of the Company shall have resolved to appoint
one new
director to be nominated by the Purchaser upon the
Closing.
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ARTICLE
VI
MISCELLANEOUS
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6.1
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No
Waiver; Cumulative Remedies. No failure or delay on the
part of any party to this Agreement in exercising any right, power
or
remedy hereunder shall operate as a waiver thereof; nor shall any
single
or partial exercise of any such right, power or remedy preclude any
other
or further exercise thereof or the exercise of any other right, power
or
remedy hereunder. The remedies herein provided are cumulative
and not exclusive of any remedies provided by
law.
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6.2
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Amendments,
Waivers and Consents. Any provision in the Agreement to the
contrary notwithstanding, and except as hereinafter provided, changes
in,
termination or amendments of or additions to this Agreement may be
made,
and compliance with any covenant or provision set forth herein may
be
omitted or waived, if the Company shall obtain consent thereto in
writing
from the Purchaser. Any waiver or consent may be given subject
to satisfaction of conditions stated therein and any waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given.
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6.3
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Addresses
for Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (including
telegraphic communication) and delivered to each applicable party
via any
reputable international courier service at the address first above
written
in respect of the Company and at Mezzanine Floor, Yamaha Showroom,
Sheikh
Zayed Road, Dubai United Arab Emirates in respect of the Purchaser
or at
such other address as to which either party may inform the other
party in
writing in compliance with the terms of this Article. All such
notices, requests, demands and other communications shall be considered
to
be effective on the scheduled delivery
date.
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6.4
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Costs,
Expenses and Taxes. All parties to bear their own costs, expenses and
taxes in connection with the transactions contemplated
hereby.
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6.5
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Effectiveness;
Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the Company, the Purchaser and their
respective successors and assigns. The Purchaser may assign all
or any part of its rights and obligations hereunder to any person
who
acquires or sells any Shares owned by the Purchaser subject to the
conditions of this Agreement. The Company hereby consents to
any such assignment provided the sale complies with the terms of
this
Agreement.
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6.6
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Prior
Agreements. This Agreement constitute the entire agreement
between the parties and supersede any prior understandings or agreements
concerning the subject matter
hereof.
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6.7
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Severability. The
provisions of this Agreement are severable and, in the event that
any
court of competent jurisdiction shall determine that any one or more
of
the provisions or part of a provision contained therein shall, for
any
reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect
any other
provision or part of a provision of this Agreement and the terms
of the
Securities shall be reformed and construed as if such invalid or
illegal
or unenforceable provision, or part of a provision, had never been
contained herein, and such provisions or part reformed so that it
would be
valid, legal and enforceable to the maximum extent
possible.
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6.8
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Governing
Law; Venue.
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A.
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This
Agreement shall be enforced, governed and construed in accordance
with the
laws the State of California or federal securities law where applicable
without giving effect to choice of laws principles or conflict of
laws
provisions. The Purchaser and the Company (i) agree that any legal
suit,
action or proceeding arising out of or relating to this Agreement
shall be
instituted exclusively in the federal courts located in Los Angeles,
California, U.S.A., (ii) waives any objection to the venue of any
such
suit, action or proceeding and the right to assert that such forum
is not
a convenient forum, and (iii) irrevocably consents to the jurisdiction
of
the federal courts located in Los Angeles, California, U.S.A. in
any such
suit, action or proceeding, and the Purchaser and the Company further
agree to accept and acknowledge service or any and all process that
may be
served in any such suit, action or proceeding in the federal courts
located in Los Angeles, California, U.S.A. in person or by certified
mail
addressed as first above written.
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B.
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The
Purchaser and the Company hereby waive, and agree not to assert against
each other, or any successor assignee thereof, by way of motion,
as a
defense, or otherwise, in any such suit, action or proceeding, (i)
any
claim that the Purchaser is not personally subject to the jurisdiction
of
the above-named court, and (ii) to the extent permitted by applicable
law,
any claim that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of any such suit, action or
proceeding is improper or that this Agreement may not be enforced
in or by
such court.
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3.2.
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Headings. Article,
section and subsection headings in this Agreement are included herein
for
convenience of reference only and shall not constitute a part of
this
Agreement for any other purpose.
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3.3.
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Survival
of Representations and Warranties. All representations and
warranties made in this Agreement, the Securities, or any other instrument
or document delivered in
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connection
herewith or therewith, shall survive the execution and delivery
hereof or
thereof for a period of one year.
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3.4.
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Counterparts. This
Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and
any of
the parties hereto may execute this Agreement by signing any such
counterpart.
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3.5.
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Further
Assurances. From and after the date of this Agreement, upon
the request of the Purchaser or the Company, the Company and the
Purchaser
shall execute and deliver such instruments, documents and other writings
as may be reasonably necessary or desirable to confirm and carry
out and
to effectuate fully the intent and purposes of the Agreement and
the
Securities.
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[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Regulation S Securities
Purchase Agreement to be executed as of the date first above
written.
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COMPANY:
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PURCHASER:
XX
XXXXXX LLC
By: _______________________
Name:
Title:
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Exhibit
A
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