SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
THIS PURCHASE AGREEMENT (“Agreement”)
is made as of the 22nd day of October, 2009 by and among WaterPure International
Inc., a Florida corporation (the “Company”), and the Investor set forth on the
signature page affixed hereto (the “Investor”).
Recitals
A. The
Company and the Investor are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by the provisions of
Regulation D (“Regulation D”), as promulgated by the U.S. Securities and
Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended;
and
B. The
Investor wishes to purchase from the Company, and the Company wishes to sell and
issue to the Investor from time to time upon written request, upon the terms and
conditions stated in this Agreement, up to an aggregate of 100 shares of series
A convertible preferred stock (the “Series A Preferred Stock”) pursuant to the
terms and conditions of the Series A Designations.
.
In consideration of the mutual promises
made herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. In
addition to those terms defined above and elsewhere in this Agreement, for the
purposes of this Agreement, the following terms shall have the meanings set
forth below:
“Affiliate” means,
with respect to any Person, any other Person which directly or indirectly
through one or more intermediaries Controls, is controlled by, or is under
common control with, such Person.
“Business Day” means a
day, other than a Saturday or Sunday, on which banks in New York City are open
for the general transaction of business.
“Closing” means the
closing of the purchase and sale of the Securities pursuant to Section
2.
“Closing Date” means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
the Purchaser’s obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities have been satisfied or
waived.
“Control” (including
the terms “controlling”, “controlled by” or “under common control with”) means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Material Adverse
Effect” means a material adverse effect on (i) the assets, liabilities,
results of operations, condition (financial or otherwise), business, or
prospects of the Company and its Subsidiaries taken as a whole, or (ii) the
ability of the Company to perform its obligations under the Transaction
Documents.
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“Person” means an
individual, corporation, partnership, limited liability company, trust, business
trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity
not specifically listed herein.
“Purchase Price” means
Two Hundred Fifty Thousand Dollars ($250,000).
“SEC Filings” has the
meaning set forth in Section 4.6.
“SEC” means the United
States Securities and Exchange Commission.
“Securities” means the
Series A Preferred Stock and the Shares.
“Series A Preferred
Stock” means the Series A Convertible Preferred Stock of the Company and
such designations, preferences and limitations as are set forth in the Series A
Designations.
“Series A
Designations” means the Certificate of Designation, Preferences and
Rights of Series A Convertible Preferred Stock in the form attached hereto as
Exhibit
A.
“Shares” means the
shares of Common Stock issuable upon conversion of the Series A Preferred
Stock.
“Subsidiary” of any
Person means another Person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first Person.
“Transaction
Documents” means this Agreement, the Series A Designations and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
“1933 Act” means the
Securities Act of 1933, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
“1934 Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated thereunder.
2. Purchase and Sale of the
Series A Preferred Stock. On the initial Closing Date, upon
the terms and subject to the conditions set forth herein, concurrent with the
execution and delivery of this Agreement by the parties hereto, the Investor
agrees to purchase, and the Company agrees to sell 30 shares of Series A
Preferred Stock, each share having a Stated Value of $2,500.00 in exchange for
an amount equal to the Purchase Price multiplied by the number of shares of
Series A Preferred Stock being purchased divided by 100. The Company and the
Investor agree that the Company shall have the right to require the Investor to
purchase up to 70 additional shares of Series A Preferred Stock , in an amount
of 20 shares at a time, upon the Company providing written request to the
Investor (the “Put Notice”). Upon receipt of the Put Notice, the
Investor shall be required to purchase such number of shares of Series A
Preferred Stock as specified in the Put Notice by delivering to the Company,
within three (3) business days of receipt of the Put Notice, an amount by wire
transfer to the Company’s bank account as specified on the Put Notice, an amount
equal to the Purchase Price multiplied by the number of shares of Series A
Preferred Stock specified in the Put Notice divided by 100.
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3. Closing. Upon
confirmation that the other conditions to closing specified herein have been
satisfied or duly waived by the Investor, the Company shall deliver to the
Investor, on each Closing Date, a stock certificate representing such number
shares of Series A Preferred Stock then purchased, registered the name of the
Investor, and the Investor shall cause a wire transfer in same day funds to be
sent to the account of the Company as instructed in writing by the Company, in
an amount representing the Purchase Price for the Series A Preferred Stock so
purchased (the “Closing Date”). The closing of the purchase and sale of the
Series A Preferred Stock shall take place at the offices of Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP, 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location and on such other
date as the Company and the Investor shall mutually agree.
4. Representations and
Warranties of the Company. The Company hereby represents and
warrants to the Investor:
4.
1 Organization, Good Standing
and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Florida and has all requisite corporate power and authority to carry on its
business as now conducted and to own its properties. The Company is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property makes such qualification or leasing necessary unless the
failure to so qualify has not and could not reasonably be expected to have a
Material Adverse Effect. The Company does not have any
Subsidiaries.
4.2 Authorization. The
Company has full power and authority and, has taken all requisite action on the
part of the Company, its officers, directors and stockholders necessary for (i)
the authorization, execution and delivery of the Transaction Documents, (ii)
authorization of the performance of all obligations of the Company hereunder or
thereunder, and (iii) the authorization, issuance (or reservation for issuance)
and delivery of the Securities. The Transaction Documents constitute
the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors’ rights
generally.
4.3 Valid
Issuance. The Series A Preferred Stock have been duly and
validly authorized and, when issued and paid for pursuant to this Agreement,
shall be free and clear of all encumbrances and restrictions (other than those
created by the Investor), except for restrictions on transfer set forth in the
Transaction Documents or imposed by applicable securities laws. Upon
the due conversion of the Series A Preferred Stock, the Shares will be validly
issued, fully paid and non-assessable free and clear of all encumbrances and
restrictions, except for restrictions on transfer set forth in the Transaction
Documents or imposed by applicable securities laws and except for those created
by the Investor. The Company has reserved a sufficient number of
shares of Common Stock for issuance upon the conversion of the Series A
Preferred Stock, free and clear of all encumbrances and restrictions, except for
restrictions on transfer set forth in the Transaction Documents or imposed by
applicable securities laws and except for those created by the
Investor.
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4.4 Consents. The
execution, delivery and performance by the Company of the Transaction Documents,
and the offer, issuance and sale of the Securities require no consent of, action
by or in respect of, or filing with, any Person, governmental body, agency, or
official other than filings that have been made pursuant to applicable state
securities laws, and post-sale filings pursuant to applicable state and federal
securities laws which the Company undertakes to file within the applicable time
periods. Subject to the accuracy of the representations and
warranties of the Investor set forth in Section 5 hereof, the Company has taken
all action necessary to exempt (i) the issuance and sale of the Securities, (ii)
the issuance of the Shares upon due conversion of the Series A Preferred Stock,
and (iii) the other transactions contemplated by the Transaction Documents from
the provisions of any shareholder rights plan or other “poison pill”
arrangement, any anti-takeover, business combination or control share law or
statute binding on the Company or to which the Company or any of its assets and
properties may be subject and any provision of the Company’s Articles of
Incorporation or By-laws that is or could reasonably be expected to become
applicable to the Investor as a result of the transactions contemplated hereby,
including without limitation, the issuance of the Securities and the ownership,
disposition or voting of the Securities by the Investor or the exercise of any
right granted to the Investor pursuant to this Agreement or the other
Transaction Documents.
4.5 Delivery of SEC Filings;
Business. The Company has made available to the Investor
through the XXXXX system, true and complete copies of the Company’s most recent
Annual Report on Form 10-K for its last fiscal year (the “10-K”), and all other
reports filed by the Company pursuant to the 1934 Act since the filing of the
10-K and prior to the date hereof (collectively, the “SEC
Filings”). The SEC Filings are the only filings required of the
Company pursuant to the 1934 Act for such period. The Company is
engaged in all material respects only in the business described in the SEC
Filings and the SEC Filings contain a complete and accurate description in all
material respects of the business of the Company and its Subsidiaries, taken as
a whole.
4.6 Use of
Proceeds. The net proceeds of the sale of the Series A
Preferred Stock hereunder shall be used by the Company for working capital and
general corporate purposes.
4.8 No Conflict, Breach,
Violation or Default. The execution, delivery and performance
of the Transaction Documents by the Company and the issuance and sale of the
Securities will not conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under (i) the Company’s
Articles of Incorporation or the Company’s Bylaws, both as in effect on the date
hereof (true and complete copies of which have been made available to the
Investor through the XXXXX system), or (ii)(a) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of the Company’s assets or
properties, or (b) any agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of its assets or properties is
subject.
4.9 No Directed Selling Efforts
or General Solicitation. Neither the Company nor any Person
acting on its behalf has conducted any general solicitation or general
advertising (as those terms are used in Regulation D) in connection with the
offer or sale of any of the Securities.
4.10 No Integrated
Offering. Neither the Company nor any of its Affiliates, nor
any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any Company security or solicited any offers to buy any
security, under circumstances that would adversely affect reliance by the
Company on Section 4(2) for the exemption from registration for the transactions
contemplated hereby or would require registration of the Securities under the
1933 Act.
4.11 Private
Placement. The offer and sale of the Securities to the
Investor as contemplated hereby is exempt from the registration requirements of
the 1933 Act.
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5. Representations and
Warranties of the Investor. The Investor hereby represents and
warrants to the Company that:
5.1 Organization and
Existence. Such Investor is a validly existing corporation,
limited partnership or limited liability company and has all requisite
corporate, partnership or limited liability company power and authority to
invest in the Securities pursuant to this Agreement.
5.2 Authorization. The
execution, delivery and performance by such Investor of the Transaction
Documents to which such Investor is a party have been duly authorized and will
each constitute the valid and legally binding obligation of such Investor,
enforceable against such Investor in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors’ rights generally.
5.3 Purchase Entirely for Own
Account. The Securities to be received by such Investor
hereunder will be acquired for such Investor’s own account, not as nominee or
agent, and not with a view to the resale or distribution of any part thereof in
violation of the 1933 Act, and such Investor has no present intention of
selling, granting any participation in, or otherwise distributing the same in
violation of the 1933 Act without prejudice, however, to such Investor’s right
at all times to sell or otherwise dispose of all or any part of such Securities
in compliance with applicable federal and state securities laws. Nothing contained
herein shall be deemed a representation or warranty by such Investor to hold the
Securities for any period of time. Such Investor is not a
broker-dealer registered with the SEC under the 1934 Act or an entity engaged in
a business that would require it to be so registered.
5.4 Investment
Experience. Such Investor acknowledges that it can bear the
economic risk and complete loss of its investment in the Securities and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of
Information. Such Investor has had an opportunity to receive
all information related to the Company requested by it and to ask questions of
and receive answers from the Company regarding the Company, its business and the
terms and conditions of the offering of the Securities. Such Investor
acknowledges receipt of copies of the SEC Filings. Neither such
inquiries nor any other due diligence investigation conducted by such Investor
shall modify, amend or affect such Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement.
5.6 Restricted
Securities. Such Investor understands that the Securities are
characterized as “restricted securities” under the U.S. federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the 1933 Act only in
certain limited circumstances.
5.7 Legends. It
is understood that, except as provided below, certificates evidencing the
Securities may bear the following or any similar legend:
(a) “The
securities represented hereby may not be transferred unless (i) such securities
have been registered for sale pursuant to the Securities Act of 1933, as
amended, (ii) such securities may be sold pursuant to Rule 144, or (iii) the
Company has received an opinion of counsel reasonably satisfactory to it that
such transfer may lawfully be made without registration under the Securities Act
of 1933 or qualification under applicable state securities laws.”
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(b) If
required by the authorities of any state in connection with the issuance of sale
of the Securities, the legend required by such state authority.
5.8 Accredited
Investor. Such Investor is an accredited investor as defined
in Rule 501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No General
Solicitation. Such Investor did not learn of the investment in
the Securities as a result of any public advertising or general
solicitation.
5.10 Brokers and
Finders. No Person will have, as a result of the transactions
contemplated by the Transaction Documents, any valid right, interest or claim
against or upon the Company, any Subsidiary or an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or
understanding entered into by or on behalf of such Investor.
5.11 Prohibited
Transactions. During the last thirty (30) days prior to the
date hereof, neither such Investor nor any Affiliate of such Investor which (x)
had knowledge of the transactions contemplated hereby, (y) has or shares
discretion relating to such Investor’s investments or trading or information
concerning such Investor’s investments, including in respect of the Securities,
or (z) is subject to such Investor’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading Affiliates”) has, directly or
indirectly, effected or agreed to effect any short sale, whether or not against
the box, established any “put equivalent position” (as defined in Rule 16a-1(h)
under the 0000 Xxx) with respect to the Common Stock, granted any other right
(including, without limitation, any put or call option) with respect to the
Common Stock or with respect to any security that includes, relates to or
derived any significant part of its value from the Common Stock or otherwise
sought to hedge its position in the Securities (each, a “Prohibited
Transaction”). Prior to the earliest to occur of (i) the termination
of this Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline,
such Investor shall not, and shall cause its Trading Affiliates not to, engage,
directly or indirectly, in a Prohibited Transaction. Such Investor
acknowledges that the representations, warranties and covenants contained in
this Section 5.11 are being made for the benefit of the Investor as well as the
Company and that each of the other Investor shall have an independent right to
assert any claims against such Investor arising out of any breach or violation
of the provisions of this Section 5.11.
6. Conditions to
Closing.
6.1 Conditions to the Investor’s
Obligations. The obligation of the Investor to purchase the Series A
Preferred Stock at the Closing is subject to the fulfillment to such Investor’s
satisfaction, on or prior to the Closing Date, of the following conditions, any
of which may be waived by the Investor:
(a) The
representations and warranties made by the Company in Section 4 hereof qualified
as to materiality shall be true and correct at all times prior to and on the
Closing Date, except to the extent any such representation or warranty expressly
speaks as of an earlier date, in which case such representation or warranty
shall be true and correct as of such earlier date, and, the representations and
warranties made by the Company in Section 4 hereof not qualified as to
materiality shall be true and correct in all material respects at all times
prior to and on the Closing Date, except to the extent any such representation
or warranty expressly speaks as of an earlier date, in which case such
representation or warranty shall be true and correct in all material respects as
of such earlier date. The Company shall have performed in all
material respects all obligations and conditions herein required to be performed
or observed by it on or prior to the Closing Date.
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(b) The
Company shall have obtained any and all consents, permits, approvals,
registrations and waivers necessary or appropriate for consummation of the
purchase and sale of the Securities, and the consummation of the other
transactions contemplated by the Transaction Documents, all of which shall be in
full force and effect.
(c) The
Company shall have filed the Series A Designations with the Florida Secretary of
State.
(d) No
judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate, including any bankruptcy court or judge, or any order of
or by any governmental authority, shall have been issued, and no action or
proceeding shall have been instituted by any governmental authority, enjoining
or preventing the consummation of the transactions contemplated hereby or in the
other Transaction Documents.
(e) The
Company shall have delivered a Certificate, executed on behalf of the Company by
its Chief Executive Officer or its Chief Financial Officer, dated as of the
Closing Date, certifying to the fulfillment of the conditions specified in this
Section 6.1.
(f) The
Company shall have delivered a Certificate, executed on behalf of the Company by
its Secretary, dated as of the Closing Date, certifying the resolutions adopted
by the Board of Directors of the Company approving the transactions contemplated
by this Agreement and the other Transaction Documents and the issuance of the
Securities and certifying as to the signatures and authority of persons signing
the Transaction Documents and related documents on behalf of the
Company.
(g) No
stop order or suspension of trading shall have been imposed by FINRA, the SEC or
any other governmental or regulatory body with respect to public trading in the
Common Stock.
6.2 Conditions to Obligations of
the Company. The Company's obligation to sell and issue the Series A
Preferred Stock at Closing is subject to the fulfillment to the satisfaction of
the Company on or prior to the Closing Date of the following conditions, any of
which may be waived by the Company:
(a) The
representations and warranties made by the Investor in Section 5 hereof, other
than the representations and warranties contained in Sections 5.3, 5.4, 5.5,
5.6, 5.7, 5.8 and 5.9 (the “Investment Representations”), shall be true and
correct in all material respects when made, and shall be true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of said date. The Investment Representations
shall be true and correct in all respects when made, and shall be true and
correct in all respects on the Closing Date with the same force and effect as if
they had been made on and as of said date. The Investor shall have
performed in all material respects all obligations and conditions herein
required to be performed or observed by them on or prior to the Closing
Date.
(b) The
Investor shall have delivered the Purchase Price to the Company.
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6.3 Termination of Obligations
to Effect Closing; Effects.
(a) The
obligations of the Company, on the one hand, and the Investor, on the other
hand, to effect the Closing shall terminate as follows:
(i) Upon
the mutual written consent of the Company and the Investor;
(ii) By
the Company if any of the conditions set forth in Section 6.2 shall have become
incapable of fulfillment, and shall not have been waived by the
Company;
(iii) By
an Investor (with respect to itself only) if any of the conditions set forth in
Section 6.1 shall have become incapable of fulfillment, and shall not have been
waived by the Investor; or
(iv) By
either the Company or the Investor if the first Closing has not occurred on or
prior to October 31, 2009;
provided,
however, that, except in the case of clause (i) above, the party seeking to
terminate its obligation to effect the Closing shall not then be in breach of
any of its representations, warranties, covenants or agreements contained in
this Agreement or the other Transaction Documents if such breach has resulted in
the circumstances giving rise to such party’s seeking to terminate its
obligation to effect the Closing.
7. Covenants and Agreements of
the Company.
7.1 Reservation of Common
Stock. The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock, solely for
the purpose of providing for the conversion of the Series A Preferred Stock,
such number of shares of Common Stock as shall from time to time equal the
number of shares sufficient to permit the conversion of the Series A Preferred
Stock issued pursuant to this Agreement in accordance with its
terms.
7.2 Reports. The
Company will furnish to the Investor and/or their assignees such information
relating to the Company as from time to time may reasonably be requested by the
Investor and/or their assignees; provided, however, that the Company shall not
disclose material nonpublic information to the Investor, or to advisors to or
representatives of the Investor, unless prior to disclosure of such information
the Company identifies such information as being material nonpublic information
and provides the Investor, such advisors and representatives with the
opportunity to accept or refuse to accept such material nonpublic information
for review and the Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect
thereto.
7.3 No Conflicting
Agreements. The Company will not take any action, enter into
any agreement or make any commitment that would conflict or interfere in any
material respect with the Company’s obligations to the Investor under the
Transaction Documents.
7.4 Compliance with
Laws. The Company will comply in all material respects with
all applicable laws, rules, regulations, orders and decrees of all governmental
authorities.
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7.5 Termination of
Covenants. The provisions of Sections 7.2 through 7.4 shall
terminate and be of no further force and effect on the date on which there are
no shares of Series A Preferred Stock issued and outstanding.
8. Survival and
Indemnification.
8.1 Survival. The
representations, warranties, covenants and agreements contained in this
Agreement shall survive the Closing of the transactions contemplated by this
Agreement.
8.2 Indemnification. The
Company agrees to indemnify and hold harmless each Investor and its Affiliates
and their respective directors, officers, employees and agents from and against
any and all losses, claims, damages, liabilities and expenses (including without
limitation reasonable attorney fees and disbursements and other expenses
incurred in connection with investigating, preparing or defending any action,
claim or proceeding, pending or threatened and the costs of enforcement thereof)
(collectively, “Losses”) to which such Person may become subject as a result of
any breach of representation, warranty, covenant or agreement made by or to be
performed on the part of the Company under the Transaction Documents, and will
reimburse any such Person for all such amounts as they are incurred by such
Person.
8.3 Conduct of Indemnification
Proceedings. Promptly
after receipt by any Person (the “Indemnified Person”) of
notice of any demand, claim or circumstances which would or might give rise to a
claim or the commencement of any action, proceeding or investigation in respect
of which indemnity may be sought pursuant to Section 8.2, such Indemnified
Person shall promptly notify the Company in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Person, and shall assume the payment of all fees and
expenses; provided, however, that the failure of any
Indemnified Person so to notify the Company shall not relieve the Company of its
obligations hereunder except to the extent that the Company is materially
prejudiced by such failure to notify. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company and the Indemnified Person shall have mutually agreed to
the retention of such counsel; or (ii) in the reasonable judgment of counsel to
such Indemnified Person representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Company shall indemnify and hold harmless such
Indemnified Person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior
written consent of the Indemnified Person, which consent shall not be
unreasonably withheld, the Company shall not effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional release
of such Indemnified Person from all liability arising out of such
proceeding.
9. Miscellaneous.
9.1 Successors and
Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the Company or the Investor, as applicable,
provided, however, that an Investor may assign its rights and delegate its
duties hereunder in whole or in part to an Affiliate or to a third party
acquiring some or all of its Securities in a private transaction without the
prior written consent of the Company, after notice duly given by such Investor
to the Company. The provisions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
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9.2 Execution. This
Agreement may be executed in two (2) or more counterparts, all of which when
taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.
9.3 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
9.4 Notices. Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given by
an internationally recognized overnight air courier, then such notice shall be
deemed given one business day after delivery to such carrier. All
notices shall be addressed to the party to be notified at the address as
follows, or at such other address as such party may designate by ten days’
advance written notice to the other party:
If to the Company:
Xx. Xxxx
X. Xxxxxxxxx
000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx
Xxxxxxx, XX 00000
Fax: (000)
000-0000
With a copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
X. Xxxxxx, Esq.
Fax: (000)
000-0000
If to the Investor:
Mayim
Tahor, LLC
0000 X.
Xxx Xxxx
Xxxxx
Xxxxx, XX 00000
Attention: Xxxxx
Xxxxxxxxx
Fax:
(000) 000-0000
10
With a copy to:
Xxxx
Xxxxxxxx, Esq.
0000 Xxxx
Xxxxx Xxxx
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
Fax: (000)
000-0000
9.5 Expenses. The
parties hereto shall pay their own costs and expenses in connection
herewith. In the event that legal proceedings are commenced by any
party to this Agreement against another party to this Agreement in connection
with this Agreement or the other Transaction Documents, the party or parties
which do not prevail in such proceedings shall severally, but not jointly, pay
their pro rata share of the reasonable attorneys’ fees and other reasonable
out-of-pocket costs and expenses incurred by the prevailing party in such
proceedings.
9.6 Amendments and
Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Securities purchased under this Agreement at the time outstanding,
each future holder of all such Securities, and the Company.
9.7 Publicity. Except
as set forth below, no public release or announcement concerning the
transactions contemplated hereby shall be issued by the Company or the Investor
without the prior consent of the Company (in the case of a release or
announcement by the Investor) or the Investor (in the case of a release or
announcement by the Company) (which consents shall not be unreasonably
withheld), except as such release or announcement may be required by law or the
applicable rules or regulations of any securities exchange or securities market,
in which case the Company or the Investor, as the case may be, shall allow the
Investor or the Company, as applicable, to the extent reasonably practicable in
the circumstances, reasonable time to comment on such release or announcement in
advance of such issuance. By 8:30 a.m. (New York City time) on the
trading day immediately following the Closing Date, the Company shall issue a
press release disclosing the consummation of the transactions contemplated by
this Agreement. No later than the third trading day following the
Closing Date, the Company will file a Current Report on Form 8-K attaching the
press release described in the foregoing sentence as well as copies of the
Transaction Documents. In addition, the Company will make such other
filings and notices in the manner and time required by the
SEC. Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Investor, or include the name of any Investor in any
filing with the SEC (other than the Registration Statement and any exhibits to
filings made in respect of this transaction in accordance with periodic filing
requirements under the 0000 Xxx) or any regulatory agency or FINRA, without the
prior written consent of such Investor, except to the extent such disclosure is
required by law or trading market regulations, in which case the Company shall
provide the Investor with prior notice of such disclosure.
11
9.8 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the
extent permitted by applicable law, the parties hereby waive any provision of
law which renders any provision hereof prohibited or unenforceable in any
respect.
9.9 Entire
Agreement. This Agreement, including the Exhibits and the
Disclosure Schedules, and the other Transaction Documents constitute the entire
agreement among the parties hereof with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and
thereof.
9.10 Further
Assurances. The parties shall execute and deliver all such
further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
9.11 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
9.12 Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial. All questions concerning
the construction, validity, enforcement and interpretation of the Transaction
Documents shall be governed by and construed and enforced in accordance with the
internal laws of the State of Florida, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively in
the state and federal courts sitting in Broward County, Florida. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Broward County, Florida for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein (including with respect to the enforcement of any of
the Transaction Documents), and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any other manner permitted by
law. EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION
WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
(Remainder
of Page Intentionally Left Blank)
(Signature
Pages Follow)
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IN WITNESS WHEREOF, the parties have
executed this Agreement or caused their duly authorized officers to execute this
Agreement as of the date first above written.
| The Company: | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
|
Xxxx
X. Xxxxxxxxx
Chief
Executive Officer
|
|||
13
[INVESTOR
SIGNATURE PAGES TO
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name of
Purchaser: Mayim Tahor, LLC
Signature of Authorized Signatory of
Purchaser: /s/
XXXXX XXXXXXXXX
Name of
Authorized Signatory: Xxxxx Xxxxxxxxx
Title of
Authorized Signatory: Manager
Email
Address of Purchaser:
Facsimile
Number of Purchaser: (000) 000-0000
Jurisdiction
of Organization of Purchaser: Florida
Address
for Notice of Purchaser: 0000 X. Xxx Xxxx Xxxxx Xxxxx, XX
00000
Address
for Delivery of Securities for Purchaser (if not same as above):
