NOTE PURCHASE AGREEMENT
THIS
NOTE
PURCHASE AGREEMENT (the “Agreement”) is made as of the 13th
day of
August, 2008 by and between US DATAWORKS, INC., a Nevada corporation (the
“Company”), and signatories hereto (collectively, the “Investors” and
individually, the “Investor”).
WHEREAS,
the Company desires to issue and sell to the Investor, and the Investor desires
to purchase from the Company, refinancing secured promissory notes of the
Company, upon the terms and subject to the conditions set forth
herein;
WHEREAS,
the Refinancing Notes (as defined below) will rank senior to all outstanding
and
future indebtedness of the Company and its Subsidiaries to the extent required
under the Refinancing Notes and will be secured by a perfected security
interest, in all of the assets of the Company and the stock and assets of each
of the Subsidiaries as evidenced by a Security Agreement, in the form attached
hereto as Exhibit B
(as
amended, or modified from time to time in accordance with its terms, the
“Security Agreement”); and
WHEREAS,
the Investors desire to appoint Xxxxxxx X. Xxxxx as collateral agent with
respect to the Collateral (as defined in the Security Agreement) (in such
capacity, the “Collateral Agent”) pursuant to a Collateral Agency Agreement in
the form attached hereto as Exhibit
C
(as
amended or modified from time to time in accordance with its terms, the
“Collateral Agency Agreement”).
NOW,
THEREFORE, the parties hereby agree as follows:
1. Definitions.
For
purposes of this Agreement, the following terms shall have the following
respective meanings:
(a) “Affiliate”
means, with respect to any entity, an affiliate of that entity as defined in
Rule 12b-2 under The Securities Exchange Act of 1934, as amended to
date.
(b) “Closing”
has the meaning specified in Section 2.2(a).
(c) “Closing
Date” has the meaning specified in Section 2.2(a).
(d) “Common
Stock” shall mean the common stock, $0.0001 par value, of the
Company.
(e) “Company”
has the meaning specified in the preamble to this Agreement.
(f) “Financial
Statements” has the meaning specified in Section 3.7.
(g) “Form
10-KSB” has the meaning specified in Section 3.6.
(h) “Governmental
Authority” means
any
court, agency, department or other instrumentality of any foreign, federal,
state, county, city or other political subdivision.
(i) “Investor”
has the meaning specified in the preamble to this Agreement.
(j) “Lien”
means, with respect to any asset, any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind in respect of such asset.
(k) “Material
Adverse Effect” shall mean individually or collectively, a material adverse
effect on, or a material adverse change in, or group of such effects on or
changes in, (i) the business, financial condition, results of operations, assets
or liabilities of the Company and its Subsidiaries, taken as a whole, or (ii)
the ability of the Company to perform its obligations under or with respect
to
this Agreement or any Note.
(l) “Refinancing
Note” has the meaning specified in Section 2.1(a).
(m) “Person”
means a corporation, an association, a partnership, a limited liability company,
an individual, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political
subdivision thereof.
(n) “Purchase
Price” has the meaning specified in Section 2.1(a).
(o) “SEC”
has
the meaning specified in Section 3.6.
(p) “Securities
Act” means the Securities Act of 1933, as amended.
(q) “Subsidiary”
means, with respect to any entity, any other entity of which securities or
other
ownership interest having ordinary voting power to elect a majority of the
board
of directors or other persons performing similar functions are owned directly
or
indirectly by such entity.
(r) “Voting
Securities” means any securities of the Company having the ordinary power to
vote, in the absence of contingencies, in the election of directors of the
Company.
2. Purchase
and Sale of Notes.
2.1 Sale
and Issuance of Notes.
(a) Purchase
and Sale of the Refinancing Notes.
Subject
to and upon the terms and conditions of this Agreement, at the Closing, the
Company agrees to issue and sell to the Investors, and the Investors agree
to
purchase from the Company, refinancing senior secured promissory notes (each,
a
“Refinancing Note” and collectively, the “Refinancing Notes”), in the aggregate
principal amount set forth opposite each Investor’s name on the signature pages
hereto (the “Purchase Price”). Each Purchaser shall pay the Purchase Price
therefor in connection with the issuance of the Refinancing Notes and the
Company’s repayment of the Senior Secured Convertible Notes due November 13,
2010 (the “Original Notes”). The Refinancing Notes shall have a maturity date
one (1) year from the date of their original issuance, shall be in substantially
the form attached hereto as Exhibit
A,
and
subject to adjustment pursuant to, the terms of such Refinancing
Note.
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2.2 Closing.
(a) The
closing of the purchase and sale of the Refinancing Notes (the “Closing”) shall
take place at the offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. local time, or at such other time
and place as the Company and the Investors mutually agree upon. The Closing
shall occur on such date (the “Closing Date”) that the Company.
3. Representations,
Warranties and Agreements of the Company.
The
Company hereby represents and warrants to, and agrees with, each Investor
that:
3.1 Organization.
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada, has the corporate power and
authority to own, lease and operate its properties and to carry on its business
as currently conducted, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
be
reasonably expected to have a Material Adverse Effect. The Company has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as currently conducted.
3.2 Authorization.
All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of this Agreement and the Refinancing Note, the
performance of all obligations of the Company hereunder and thereunder has
been
taken. This Agreement constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
for the effect of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting the rights of creditors generally and
by
equitable principles of general applicability.
3.3 Valid
Issuance.
When
delivered to and paid for by the Investors in accordance with the terms of
this
Agreement, each Refinancing Note will be a valid and binding obligation of
the
Company, enforceable against the Company in accordance with its terms, except
for the effect of bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting the rights of creditors generally and
by
equitable principles of general applicability. Based in part upon the
representations of the Investors in this Agreement, the Refinancing Notes will
be issued in compliance with all applicable federal and state securities laws.
3.4 Non-Contravention.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and thereby will not (a) conflict with, or
result in any breach or violation of the Certificate of Incorporation or the
Bylaws of the Company or (b) conflict with or constitute a breach of, or 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, or result in the creation of a Lien on any property or asset
of
the Company or any of its Subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its Subsidiaries is a party or by which it or any of its properties
may be bound, or (c) to the Company’s knowledge violate any law, administrative
regulation or court decree, except in the case of clauses (b) and (c) for
conflicts, breaches, defaults, violations or Liens which, either individually
or
in the aggregate, would not be reasonably expected to have a Material Adverse
Effect.
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3.5 Governmental
Consents.
No
consent, approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state, or local
governmental authority on the part of the Company is required in connection
with
the consummation of the transactions contemplated by this Agreement, except
for
such filings as may be required to be made pursuant to applicable federal or
state securities laws, and except for such consents, approvals, authorizations
or orders the absence of which, either individually or in the aggregate, would
not be reasonably expected to have a Material Adverse Effect.
3.6 Litigation.
Except
as disclosed in the Company’s Annual Report on Form 10-KSB filed with the
Securities and Exchange Commission (“SEC”) for the year ended March 31, 2008
(the “Form 10-KSB”), or any other filings by the Company with the SEC, there is
no action, suit or proceeding before or by any court or governmental agency
or
body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or adversely affecting the Company that would, if determined
adversely to the Company, be reasonably expected to have a Material Adverse
Effect.
3.7 SEC
Filings and Financial Statements.
The
Company has previously made available to the Investors true and complete copies
of the Form 10-KSB. The financial statements included in such reports are
hereafter collectively referred to as the “Financial Statements.” Each of the
balance sheets included in the Financial Statements (including any related
notes
and schedules) presents fairly the financial position of the Company as of
its
date, and the other financial statements included in the Financial Statements
(including any related notes and schedules) present fairly the results of
operations or other information included therein of the Company for the periods
or as of the dates therein set forth (subject, in the case of interim financial
statements, to changes resulting from audits and year-end adjustments), and
each
of the Financial Statements was prepared in accordance with generally accepted
accounting principles consistently applied during the periods involved (except
as otherwise stated therein and except, in the case of interim financial
statements, to the extent they may not include footnotes or may be condensed
or
summary statements). None of the documents filed with the SEC and referred
to in
this Section 3.7
contained, as of its date, 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.
3.8 No
Material Adverse Change.
Since
June 30, 2008, except as otherwise disclosed by the Company in writing to the
Investors or as set forth in the Company’s SEC filings, in each case on or prior
to the date hereof, (a) there has been no change or development that
individually or in the aggregate would reasonably be expected to have a Material
Adverse Effect, (b) there have been no material transactions entered into by
the
Company, and (c) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
3.9 General
Solicitation.
Neither
the Company nor any other person or entity authorized by the Company to act
on
its behalf has engaged in a general solicitation or general advertising (within
the meaning of Regulation D of the Securities Act) of investors with respect
to
offers or sales of the Refinancing Notes.
4
3.10 Indemnification.
The
Company agrees and undertakes to indemnify and hold harmless each Investor
against and from all costs, losses, damages, actions, proceedings, claims,
demands, liabilities, charges and expenses of whatsoever nature and howsoever
(hereinafter, “Claims”) that the Investors may incur, suffer or sustain or have
imposed on each Investor by reason of, arising in any way out of or in relation
to the Original Notes, the Put Agreement dated November 13, 2007 (the “Put
Agreement), the Refinancing Notes and this Agreement, but excluding any Claims
resulting from an Investor’s gross negligence or willful misconduct, and shall
pay to such Investor immediately upon first demand of the Investor such Claims
as the Investor certifies to have occurred together with reasonable proof of
the
amount thereof (any such certificate being conclusive and binding on the parties
hereto).
4. Representations
and Warranties of the Investors.
Each
Investor hereby represents and warrants to, and agrees with, the Company
that:
4.1 [Reserved].
4.2 Authorization.
All
action on the part of the Investors necessary for the authorization, execution
and delivery of this Agreement and for the performance of all obligations of
the
Investors hereunder has been taken. This Agreement constitutes a legal, valid
and binding agreement of the Investors, enforceable against each Investor in
accordance with its terms, except for the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
the
rights of creditors generally and by equitable principles of general
applicability.
4.3 Non-Contravention.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and thereby will not (a) conflict with, or
result in any breach or violation of the Certificate of Incorporation or the
Bylaws of the Investors or (b) conflict with or constitute a breach of, or
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, or result in the creation of a Lien on any
property or asset of the Investors pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Investors
or any of its Subsidiaries is a party or by which it or any of its properties
may be bound, or (c) to the Investor’s knowledge violate any law, administrative
regulation or court decree, except in the case of clauses (b) and (c) for
conflicts, breaches, defaults, violations or Liens which, either individually
or
in the aggregate, would not be reasonably expected to materially and adversely
impair or restrict the Investor’s ability to perform its obligations hereunder
or to consummate the transactions contemplated hereby.
4.4 Purchase
Entirely for Own Account.
This
Agreement is made with the Investors in reliance upon each Investor’s
representation to the Company, which by each Investor’s execution of this
Agreement the Investor hereby confirms, that each Refinancing Note will be
acquired for investment for the Investor’s own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and that the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, each Investor further represents that the Investor does not have
any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to the Refinancing Notes.
5
4.5 Restricted
Securities.
(a) Each
Investor understands that each Refinancing Note, it is or may be purchasing
are
characterized as “restricted securities” under the 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
may be resold without registration under the Securities Act only in certain
limited circumstances. In addition to the restrictions on transfer or assignment
set forth in the Refinancing Notes, the Investor agrees that it will not sell
or
otherwise dispose of the Refinancing Note(s) unless such sale or other
disposition has been registered or is exempt from registration under the
Securities Act and has been registered or qualified or is exempt from
registration or qualification under applicable state securities laws.
(b) Legends.
Each
Investor understands and agrees that the Refinancing Note(s) may bear one or
all
of the following legend:
(i) “THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE
SECURITIES LAWS. IT MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED
OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND SUCH LAWS OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT
SUBJECT TO, SUCH REGISTRATION AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY
OF
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT
REQUIRED. THE TRANSFER OF THIS SECURITY IS ALSO SUBJECT TO CERTAIN TRANSFER
RESTRICTIONS CONTAINED IN THAT CERTAIN NOTE PURCHASE AGREEMENT, DATED AS OF
AUGUST 13, 2008, BETWEEN THE COMPANY AND THE HOLDER.”
4.6 Investor
Status.
Each
Investor certifies and represents to the Company that, as of the date hereof
and
at the time the Investor acquires any Refinancing Note, the Investor is and
will
be an “accredited investor” as defined in Rule 501 of Regulation D promulgated
under the Securities Act. Each Investor’s financial condition is such that it is
able to bear the risk of holding the Refinancing Notes for an indefinite period
of time and the risk of loss of its entire investment. Each Investor has been
afforded the opportunity to ask questions of and receive answers from the
management of the Company concerning this investment and is able to evaluate
the
risks and merits of its investment in the Company.
5. Conditions
to Closing.
5.1 Conditions
of the Investor’s Obligations at the Closing.
The
obligations of each Investor to purchase from the Company the Refinancing Notes
and to consummate the transactions to be consummated at the Closing are subject
to the fulfillment on or before the Closing of each of the following conditions,
any of which may be waived in writing in whole or in part by the
Investors:
6
(a) The
representations and warranties of the Company contained herein shall be true
and
correct on and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date (it being understood and agreed that, in
the
case of any representation and warranty of the Company contained herein that
is
made as of a specific date, such representation and warranty need be true and
correct only as of such specific date and it being further understood and agreed
that, in the case of any representation and warranty of the Company contained
herein that is not hereinabove qualified by application thereto of a materiality
standard, such representation and warranty need be true and correct only in
all
material respects in order to satisfy as to such representation and warranty
the
condition precedent set forth in the foregoing provision of this Section
5.1(a)).
(b) The
Company shall have performed in all material respects all obligations,
agreements, covenants and conditions herein required to be performed or observed
by the Company on or prior to the Closing Date.
(c) The
Investors shall have received a certificate, dated the Closing Date, signed
by
an executive officer of the Company, certifying on behalf of the Company that
the conditions specified in the foregoing Sections 5.1(a)
and
(b)
have
been fulfilled.
(d) No
order
enjoining or restraining the transactions contemplated by this Agreement shall
be in effect and no action or proceeding before any federal or state court
or
governmental agency or other regulatory or administrative agency or
instrumentality shall have been instituted or pending that challenges the
acquisition of, or payment for, the Refinancing Note by the Investor or
otherwise seeks to restrain or prohibit consummation of the transactions
contemplated by this Agreement or seeking to impose any material limitations
on
any provisions of this Agreement.
(e) The
Company and each Investor has executed the Security Agreement and the Collateral
Agency Agreement, in substantially the forms attached as Exhibit B
and
Exhibit C
hereto.
5.2 Conditions
of the Company’s Obligations at the Closing.
The
obligations of the Company to issue and sell to the Investors the Refinancing
Notes and to consummate the transactions to be consummated at the Closing are
subject to the fulfillment on or before the Closing of each of the following
conditions by the Investors, any of which may be waived in writing in whole
or
in part by the Company:
(a) The
representations and warranties of each Investor contained herein shall be true
and correct on and as of the Closing Date with the same force and effect as
though made on and as of the Closing Date (it being understood and agreed that,
in the case of any representation and warranty of the Investor contained herein
that is made as of a specific date, such representation and warranty need be
true and correct only as of such specific date and it being further understood
and agreed that, in the case of any representation and warranty of the Investors
contained herein that is not hereinabove qualified by application thereto of
a
materiality standard, such representation and warranty need be true and correct
only in all material respects in order to satisfy as to such representation
and
warranty the condition precedent set forth in the foregoing provision of this
Section 5.2(a)).
7
(b) The
Investors shall have performed in all material respects all obligations,
agreements, covenants and conditions herein required to be performed or observed
by the Investors on or prior to the Closing Date.
(c) The
Company shall have received a certificate, dated the Closing Date, signed by
each Investor, certifying that the conditions specified in the foregoing
Sections 5.2(a)
and
(b)
have
been fulfilled.
(d) No
order
enjoining or restraining the transactions contemplated by this Agreement shall
be in effect and no action or proceeding before any federal or state court
or
governmental agency or other regulatory or administrative agency or
instrumentality shall have been instituted or pending that challenges the
acquisition of, or payment for, the Refinancing Notes by each Investor or
otherwise seeks to restrain or prohibit consummation of the transactions
contemplated by this Agreement or seeking to impose any material limitations
on
any provisions of this Agreement.
(e) The
Company and each Investor has executed the Security Agreement and the Collateral
Agency Agreement, in substantially the forms attached as Exhibit B
and
Exhibit C
hereto.
(f) Each
Investor shall have delivered to the Company the Purchase Price for the
Refinancing Note specified in Section 2.1(a)
by wire
transfer in immediately available funds in accordance with the provisions of
Section 2.2.
6. Miscellaneous.
6.1 Termination;
Term of Agreement.
(a) This
Agreement may also be terminated by either party by written notice to the other
party in the event that the Closing Date does not occur on or before five (5)
business days from the date of this Agreement or such other date as the Company
and the Investor shall mutually agree in writing.
(b) Nothing
herein shall relieve any party from liability for any breach
hereof.
6.2 Public
Announcements.
Except
as required by applicable law or regulations, the Company and the Investors
shall jointly approve any public announcements relating to the transactions
described herein or the relationship between the parties. Each party agrees
to
cooperate with the other in the preparation of any governmental filing relating
to the transactions contemplated hereby.
8
6.3 Successors
and Assigns.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective 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. Except as provided in Section
6.5,
neither
the Company nor the Investors shall assign this Agreement or any rights
hereunder or delegate any duties hereunder without the prior written consent
of
the other (which consent may be withheld for any reason in the sole discretion
of the party from whom consent is sought). The merger, consolidation,
acquisition or sale of securities representing more than 50% of the voting
power
of a party to this agreement shall not be deemed an assignment requiring the
consent of the other party.
6.4 Notices.
Unless
otherwise provided, any notice, request, demand or other communication required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, or when
sent by fax (with receipt confirmed), or overnight courier service, or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed as follows (or at such other address as a party
may designate by notice to the other):
If
to the
Company:
US
Dataworks, Inc.
0
Xxxxx
Xxxxx Xxxxxx Xxxx., 0xx
Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
CEO
Fax:
(000) 000-0000
with
a
copy to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx Esq.
Fax:
(000) 000-0000
If
to the
Investors:
0
Xxxxx
Xxxxx Xxxxxx Xxxx., 0xx
Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxxxxx, M.D.
Fax:
(000) 000-0000
6.5 Note
Transfer Restrictions.
The
Investors agree that the Refinancing Note(s) may not be transferred or assigned
by an Investor.
6.6 Survival.
The
representations and warranties made by the Company and the Investors herein,
except as otherwise expressly provided herein, shall terminate upon the delivery
to each Investor of the Refinancing Notes, as applicable, being purchased and
the payment therefor.
9
6.7 Finders
or Brokers.
Each
Investor represents that it has not engaged any investment banker, finder or
broker, and neither is nor will be obligated for any finder’s fee or commission,
in connection with the transactions contemplated hereby. The Company represents
that it has not engaged any investment banker, finder or broker, and neither
is
nor will be obligated for any finder’s fee or commission, in connection with the
transactions contemplated hereby. Each party agrees to indemnify and hold
harmless the other from the liability for any fees, commissions and other
payments (and the costs and expenses of defending against such liability or
asserted liability) that may be owing as a result of such party’s breach of its
representation made in this Section 6.7.
6.8 Expenses.
Each
party hereto shall pay all of its own costs and expenses incurred in connection
with the negotiation, preparation, execution, delivery and performance of this
Agreement and the transactions contemplated herein, whether or not such
transactions are consummated.
6.9 Waivers.
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 party against whom such waiver is sought to be enforced.
No waiver by either party of any default with respect to any provision,
condition or requirement hereof shall be deemed to be a continuing waiver in
the
future thereof or a waiver of any other provision, condition or requirement
hereof; nor shall any delay or omission of either party to exercise any right
hereunder in any manner impair the exercise of any such right accruing to it
thereafter.
6.10 Severability.
If one
or more provisions of this Agreement are held to be unenforceable, invalid
or
void by a court of competent jurisdiction, such provision shall be excluded
from
this Agreement and the balance of this Agreement shall be interpreted as if
such
provision were so excluded and shall be enforceable in accordance with its
terms.
6.11 Specific
Enforcement.
The
Company and each Investor acknowledges and agrees that if any of the provisions
of this Agreement were not performed in accordance with their specific terms
or
were otherwise breached, irreparable damage would occur and it would be
extremely impracticable and difficult to measure damages. Accordingly, in
addition to any other rights and remedies to which the parties may be entitled
by law or equity, the parties shall be entitled to an injunction or injunctions
to prevent or cure breached of the provisions of this agreement and to enforce
specifically the terms and provisions hereof, and the parties expressly waive
(i) the defense that a remedy in damages will be adequate and (ii) any
requirement, in an action for specific performance, for the posting of a
bond.
6.12 Entire
Agreement; Amendments.
(a) Except
as
otherwise provided herein, this Agreement contains the entire understanding
of
the parties with respect to the matters covered herein and supersedes all prior
agreements and understandings, written or oral, between the parties relating
to
the subject matter hereof.
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(b) 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 Investors. 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.
6.13 Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
New
York (irrespective of its choice of law principles).
6.14 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
6.15 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. Any
reference in this Agreement to a statutory provision or rule or regulation
promulgated thereunder shall be deemed to include any similar successor
statutory provision or rule or regulation promulgated thereunder.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
US
DATAWORKS, INC.
|
||
|
By
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Name
|
Xxxxx
Xxxxxxxxxx
|
|
|
Title
|
President
and COO
|
|
11
|
XXXXXXX
X. XXXXX
|
||
|
Principal
Amount: $708,500.00
|
By
|
/s/
Xxxxxxx X. Xxxxx
|
|
Name
|
Xxxxxxx
X. Xxxxx
|
|
|
Title
|
CEO
|
|
|
XXXX
X. XXXXXXXXX, M.D.
|
||
|
Principal
Amount: $2,995,000
|
By
|
/s/
Xxxx X. Xxxxxxxxx, M.D.
|
|
Name
|
Xxxx
X. Xxxxxxxxx, M.D.
|
|
|
Title
|
|
|
Exhibit
A
Form
of Refinancing Secured Note
Exhibit
B
Security
Agreement
Exhibit
C
Collateral
Agency Agreement
