SECURITIES PURCHASE AGREEMENT
Exhibit 99.3
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of February 12, 2007, among the selling stockholders identified on
the
signature pages hereto (each, a “Selling
Stockholder”
and,
collectively, the “Selling
Stockholders”),
Commerce Planet, Inc., a Utah corporation (the “Company”),
and
the investors identified on the signature pages hereto (each, an “Investor”
and
collectively, the “Investors”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
exemptions from registration under the Securities Act (as defined below), the
Selling Stockholders, severally and not jointly, desire to offer and sell to
each Investor, and each Investor, severally and not jointly, desires to purchase
from the Selling Stockholders, securities owned by the Selling Stockholders,
as
more fully described in this Agreement.
WHEREAS,
in connection with the offer and sale of the Selling Stockholders’ securities
contemplated hereunder, the Company has agreed to make certain representations
and warranties and to provide certain registration rights to the
Investors.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company, the Selling Stockholders and the Investors
agree as follows:
ARTICLE
1.
DEFINITIONS
1.1. Definitions
.
In
addition to the terms defined elsewhere in this Agreement, for all purposes
of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144.
“Business
Day”
means
any day except Saturday, Sunday and any day which is a federal legal holiday
or
a day on which banking institutions in the State of New York are authorized
or
required by law or other governmental action to close.
“Closing”
means
the closing of the purchase and sale of the Shares pursuant to Article
II.
“Closing
Date”
means
the Business Day on which all of the conditions set forth in Sections 5.1 and
5.2 hereof are satisfied, or such other date as the parties may
agree.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $0.001 per share, and any securities
into which such common stock may hereafter be reclassified.
"Escrow
Agreement" means
the
Escrow Agreement, dated as of the date of this Agreement, among the Selling
Stockholders, Xxxx Capital Partners, LLP and the Escrow Agent (as defined in
the
Escrow Agreement).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Indemnified
Party”
shall
have the meaning set forth in Section 4.2.
“Investment
Amount”
means,
with respect to an Investor, the Investment Amount indicated on such Investor’s
signature page to this Agreement.
“Lien”
means
any lien, charge, encumbrance, security interest, right of first refusal or
other restrictions of any kind.
“Losses”
means
any loss, liability, obligation, claim, contingency, damage, cost or expense,
including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation related thereto.
“New
York Courts”
means
the state and federal courts sitting in the City of New York, Borough of
Manhattan.
“Outside
Date”
means
the 30th day following the date of this Agreement.
“Per
Share Purchase Price”
means
$1.90.
“Person”
means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding”
means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of the date of this Agreement,
among
the Company and the Investors, in the form of Exhibit
A
hereto.
“Registration
Statement”
means a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Investors of the
Shares.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule. References to particular Sections and Paragraphs of Rule 144 shall refer
to specific sections and paragraphs of such Rule as defined in this
paragraph.
“SEC
Reports”
has the
meaning set forth in Section 3.1(g).
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shares”
means
those shares of Common Stock being offered and sold by the Selling Stockholders
to Investors under this Agreement.
“Short
Sales”
include,
without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act and all types of direct and indirect
stock
pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
“Trading
Day”
means
(i) a day on which the Common Stock is traded on a Trading Market (other than
the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading
Market (other than the OTC Bulletin Board), a day on which the Common Stock
is
traded in the over-the-counter market, as reported by the OTC Bulletin Board,
or
(iii) if the Common Stock is not quoted on any Trading Market, a day on which
the Common Stock is quoted in the over-the-counter market as reported by the
Pink Sheets, LLC (or any similar organization or agency succeeding to its
functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
“Trading
Market”
means
whichever of the New York Stock Exchange, the American Stock Exchange, the
NASDAQ National Market, the NASDAQ Capital Market or OTC Bulletin Board on
which
the Common Stock is listed or quoted for trading on the date in
question.
“Transaction
Documents”
means
this Agreement, the Registration Rights Agreement, the Escrow Agreement and
any
other documents or agreements executed in connection with the transactions
contemplated hereunder.
ARTICLE
2.
PURCHASE
AND SALE
2.1. Purchase
of Shares; Closing.
(a) Subject
to the terms and conditions set forth in this Agreement, at the Closing each
Selling Stockholder shall, severally and not jointly, sell to each Investor,
and
each Investor shall, severally and not jointly, purchase from the Selling
Stockholders, Shares as specified in this Agreement. Each Share shall be
sold
for the Per Share Purchase Price.
(b) The
Closing shall take place at the offices of Xxxxx Xxxx LLP, 0000 Xxxxxx xx
xxx
Xxxxxxxx, Xxx Xxxx, XX 00000 or at such other location as the parties may
agree.
(c) The
Company and the Selling Stockholders will cooperate with one another, and
will
cause the Shares to be re-issued to the Investors at Closing by the Company
to
each Investor.
2.2. Certain
Deliveries.
(a) Within
two Business Days of its execution and delivery of this Agreement, each Investor
shall deliver or cause to be delivered (for further redistribution in accordance
with the Escrow Agreement) its Investment Amount, in United States dollars
and
in immediately available funds, by wire transfer to the account designated
in
writing in the Escrow Agreement for such purpose.
(b) Within
two Business Days following its execution and delivery of this Agreement, each
Selling Stockholder will deliver to or as directed by the Company its Shares,
together with all documents, legal opinions, instruments, directions and
writings as the Company may reasonably require so that the Company can timely
re-issue and deliver the same to the Investors at the Closing.
(c) At
the
Closing, the following deliveries will be made:
(i) Each
Investor will deliver to the Company the Registration Rights Agreement, duly
executed by such Investor.
(ii) The
Company will cause to be issued and delivered to each Investor:
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(A)
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a
certificate, registered in the name of such Investor, containing
a
standard restrictive legend, representing the number of Shares to
be
re-issued and sold at Closing to such Investor, representing such
Investor’s Investment Amount, and
|
|
(B)
|
the
Registration Rights Agreement, duly executed by the
Company.
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(iii) The
Escrow Agreement provides that, upon joint written instruction from the Company
and Xxxx Capital Partners, LLP, the Escrow Agent will disburse the Investment
Amounts funded into the escrow account by the Investors pursuant to Section
2.2(a) in accordance with the Flow of Funds Memorandum prepared in accordance
with the Escrow Agreement.
(d) No
Investor signature page to this Agreement will be deemed accepted by the Selling
Stockholders until such time as the Investor shall be so notified in writing
by
the Selling Stockholders.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES
3.1. Representations
and Warranties of the Company.
The
Company hereby makes the following representations and warranties to each
Investor:
(a) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into the
Transaction Documents to which it is a party and to carry out its obligations
thereunder. The execution and delivery of the Transaction Documents to which
it
is a party by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company in
connection therewith. Each Transaction Document to which it is a party has
been
(or upon delivery will have been) duly executed by the Company and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws
relating to, or affecting generally the enforcement of, creditors’ rights and
remedies or by other equitable principles of general application.
(b) No
Conflicts.
The
execution, delivery and performance by the Company of the Transaction Documents
to which it is a party and the consummation by the Company of the transactions
contemplated thereby do not and will not conflict with, or constitute a default
(or an event that 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 (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument or other understanding to which the
Company is a party or by which any property or asset of the Company is
bound.
(c) Filings,
Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person
in
connection with the execution, delivery and performance by the Company of the
Transaction Documents or by reason of the sale of the Shares hereunder, other
than (i) the filing with the Commission of one or more Registration Statements
in accordance with the requirements of the Registration Rights Agreement, (ii)
filings required in accordance with Section 4.1 and (iii) those that have been
made or obtained prior to the date of this Agreement.
(d) Issuance
of the Shares.
When
originally issued to the Selling Stockholders, the Shares were duly authorized,
fully paid and non-assessable. When issued to the Investors in accordance with
Section 2.2(c)(ii), the Shares will be duly and validly issued, fully paid
and
nonassessable. The Selling Stockholders are the sole record owners of the Shares
to be sold hereunder. The Selling Stockholders were originally issued the Shares
on the dates specified in Schedule
3.3(e)
and are
recorded in the books and records of the Company as having continuously owed
such Shares since their respective original issue dates.
(e) Certain
Registration Matters.
The
Company is eligible to register the Shares for resale by the Investors under
Form SB-2 promulgated under the Securities Act.
(f) Listing
and Maintenance Requirements.
Except
as specified in the SEC Reports, the Company has not, in the two years preceding
the date hereof, received notice from any Trading Market to the effect that
the
Company is not in compliance with the listing or maintenance requirements
thereof. The Company is in compliance with the listing and maintenance
requirements for continued listing of the Common Stock on the Trading Market
on
which the Common Stock is currently listed or quoted.
(g) SEC
Reports; Financial Statements.
The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it under the Securities Act and the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the twelve months
preceding the date hereof (or such shorter period as the Company was required
by
law to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC
Reports”)
on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension. As
of
their respective dates, the SEC Reports complied in all material respects with
the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder. The financial statements
of the Company included in the SEC Reports comply in all material respects
with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(h) Company
Policies.
The
sale of the Shares by the Selling Stockholder does not violate any policies
or
procedures established by the Company.
(i) Non-Public
Information.
Other
than as provided pursuant to written confidentiality agreements between the
Company and the Investors, the Company confirms that neither it nor any Person
acting on its behalf has provided any Investor or its respective agents or
counsel with any information that the Company believes constitutes material,
non-public information concerning the Company, except insofar as the existence
and terms of the proposed transactions contemplated hereunder may constitute
such information. The Company understands and confirms that the Investors will
rely on the foregoing representations and covenants in effecting transactions
in
securities of the Company.
3.2. Representations
and Warranties of the Investors
.
Each
Investor, for itself and for no other Investor, hereby represents and warrants
to the Company and the Selling Stockholders as follows:
(a) Organization;
Authority.
Such
Investor is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations thereunder. The execution, delivery and performance by
such
Investor of the transactions contemplated by the Transaction Documents to which
it is a party have been duly authorized by all necessary corporate or, if such
Investor is not a corporation, such partnership, limited
liability company or other applicable like action, on the part of such Investor.
Each Transaction Document to which it is a party has been duly executed by
such
Investor, and when delivered by such Investor in accordance with the terms
hereof, will constitute the valid and legally binding obligation of such
Investor, enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
(b) Investment
Intent.
Such
Investor is acquiring the Shares as principal for its own account and not with
a
view to or for distributing or reselling any such Shares, without prejudice,
however, to such Investor’s right at all times to sell or otherwise dispose of
all or any such Shares in compliance with applicable federal and state
securities laws. Subject to the immediately preceding sentence, nothing
contained herein shall be deemed a representation or warranty by such Investor
to hold Shares for any period of time. Such Investor is acquiring the Shares
hereunder in the ordinary course of its business. Such Investor does not have
any agreement or understanding, directly or indirectly, with any Person to
distribute any Shares.
(c) Investor
Status.
Such
Investor is, an “accredited investor” as defined in Rule 501(a) under the
Securities Act. Such Investor is not a registered broker-dealer under Section
15
of the Exchange Act.
(d) General
Solicitation.
Such
Investor is not purchasing the Shares as a result of 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
any
other general solicitation or general advertisement.
(e) Certain
Trading Activities.
Such
Investor has not directly or indirectly, nor has any Person acting on behalf
of
or pursuant to any understanding with such Investor, engaged in any transactions
in the securities of the Company (including, without limitations, any Short
Sales involving the Company’s securities) since the time that such Investor was
first contacted by Xxxx Capital Partners, LLC or Xxxxx-Xxxxxx Capital Group
LLC
regarding the acquisition of Shares contemplated by this Agreement. Such
Investor covenants that neither it nor any Person acting on its behalf or
pursuant to any understanding with it will engage in any transactions in the
securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed.
(f) Independent
Investment Decision.
Such
Investor has independently evaluated the merits of its decision to purchase
the
Shares pursuant to the Transaction Documents, and such Investor confirms that
it
has not relied on the advice of any other Investor’s business and/or legal
counsel in making such decision. Such Investor has not relied on the business
or
legal advice of Xxxx Capital Partners, LLC or Xxxxx-Xxxxxx Capital Group LLC
or
any of their respective agents, counsel or Affiliates in making its investment
decision hereunder, and confirms that none of such Persons has made any
representations or warranties to such Investor in connection with the
transactions contemplated by the Transaction Documents. Such Investor and its
advisors, if any, have been furnished with all materials relating to the
business, finances and operations of the Company and materials relating to
the
offer and sale of the Shares that have been requested by such Investor, provided,
however, that the Company understands and acknowledges that each Investor will
rely on the representations and warranties set forth herein in connection with
such Investors acquisition of the Shares. Such Investor and its advisors, if
any, have been afforded the opportunity to ask questions of the Company. Such
Investor understands that its investment in the Shares involves a high degree
of
risk. Such Investor has sought such accounting, legal and tax advice as it
has
considered necessary to make an informed investment decision with respect to
its
acquisition of the Shares.
(g) Restrictions
on Securities.
Such
Investor understands that the Shares have not been registered under the
Securities Act and may not be offered, resold, pledged or otherwise transferred
except (a) pursuant to an exemption from registration under the Securities
Act
or pursuant to an effective registration statement in compliance with Section
5
under the Securities Act and (b) in accordance with all applicable securities
laws of the states of the United States and other jurisdictions.
(h) Reliance
on Exemptions.
Such
Investor understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
upon the truth and accuracy of, and such Investor 's compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Investor set forth herein in order to determine the availability of such
exemptions and the eligibility of such Investor to acquire the
Securities.
(i) No
Governmental Review.
Such
Investor understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
3.3. Representations
and Warranties of the Selling Stockholders. Each Selling Stockholder, for itself
and no other Selling Stockholder, hereby represents to the Company and Investors
as follows:
(a) Enforcement.
The
execution, delivery and performance by such Selling Stockholder of the
Transaction Documents to which it is a party and the transactions contemplated
thereby have been duly authorized by such Selling Stockholder and constitutes
the valid and binding obligation of such Selling Stockholder, enforceable
against it in accordance with its terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable principles of general
application.
(b) No
Consents.
No
consent, approval, authorization or order of, or any filing or declaration
with,
any court or governmental agency or body, trustee or other Person is required
to
be made by such Selling Stockholder in connection with the consummation by
such
Selling Stockholder of the transactions on its part contemplated by the
Transaction Documents, except (i) filings as may be required under Sections
13(d) and 16(a) of the Exchange Act, and (ii) those that have been made or
obtained prior to the date of this Agreement.
(c) No
Conflicts.
The
execution, delivery and performance by such Selling Stockholder of the
Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby do not and will not result in a breach or
violation of, or constitute a default under (with or without notice or lapse
of
time), any stockholders agreement, voting trust agreement, trust or other
fiduciary agreement, pledge agreement, registration rights agreement or other
agreement or instrument to which such Selling Stockholder or any of its
properties are bound or affected, and will not violate or conflict with any
judgment, decree or order of any court or other governmental agency or any
law,
rule or regulation applicable to such Selling Stockholder.
(d) Certain
Registration Matters.
Assuming the accuracy of the Investors’ representations and warranties set forth
in Section 3.2(b)-(d), no registration under the Securities Act is required
for
the offer and sale of the Shares by such Selling Stockholder to the Investors
under the Transaction Documents.
(e) Good
and Marketable Title.
Such
Selling Stockholder is the sole lawful record and beneficial owner of all of
the
Shares to be sold by it hereunder. Such Selling Stockholder has good and
marketable title to the Shares to be sold by it hereunder, free and clear of
any
Liens. Upon consummation of the Closing, the Investors will have good and
marketable title to the Shares purchased by them from such Selling Stockholder,
free and clear of all Liens other than any Liens created by or through such
Investor and restrictions on subsequent transfer imposed by the securities
laws.
(f) Certain
Fees.
Except
for fees and commissions payable to Xxxx Capital Partners, LLC and Xxxxx-Xxxxxx
Capital Group LLC by the Selling Stockholders, no brokerage or finder's fees
or
commissions are or will be payable by the Selling Stockholders to any broker,
financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this
Agreement. The Investors shall have no obligation with respect to any fees
or
with respect to any claims (other than such fees or commissions owed by an
Investor pursuant to written agreements executed by such Investor which fees
or
commissions shall be the sole responsibility of such Investor) made by or on
behalf of other Persons for fees of a type contemplated in this Section that
may
be due in connection with the transactions contemplated by this Agreement.
(g) No
Additional Agreements.
Such
Selling Stockholder does not have any agreement or understanding with any
Investor or with the Company with respect to the transactions contemplated
by
the Transaction Documents other than as specified in the Transaction
Documents.
(h) Non-Public
Information.
Such
Selling Stockholder confirms that neither it nor any Person acting on its
behalf, other than in his or her capacity as an officer of the Company, has
provided any Investor or its respective agents or counsel with any information
that such Selling Stockholder believes constitutes material, non-public
information concerning the Company, except insofar as the existence and terms
of
the proposed transactions contemplated hereunder may constitute such
information. Such Selling Stockholder understands and confirms that the
Investors will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company.
(i) Limitation
on Investors Representations.
Such
Selling Stockholder acknowledges and agrees that no Investor has made or makes
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2.
ARTICLE
4.
OTHER
AGREEMENTS OF THE PARTIES
4.1. Securities
Laws Disclosure; Publicity.
By 9:00
a.m. (New York time) on the second Trading Day following the Closing Date,
the
Company shall (a) issue a press release and file a Current Report on Form 8-K
disclosing the transactions contemplated by the Transaction Documents and the
Closing (and attach as exhibits thereto the Transaction Documents). In addition,
the Company will make such other filings and notices in the manner and time
required by the Commission and the Trading Market on which the Common Stock
is
listed. 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 Commission (other than the Current Report on Form 8-K or the Registration
Statement and any exhibits to filings made in respect of this transaction in
accordance with periodic filing requirements under the Exchange Act) or any
regulatory agency or Trading Market, without the prior written consent of such
Investor, except to the extent such disclosure is required by law or Trading
Market regulations.
4.2. Indemnification.
Each party to this Agreement hereby agrees to severally and not jointly
indemnify and hold each other party to this Agreement, and such other party’s
officers, directors, agents, investment advisors, partners, members and
employees (each an “Indemnified
Party”),
to the
fullest extent permitted by applicable law, from and against any and all Losses,
as incurred, that any such Indemnified Party may suffer or incur as a direct
result of or directly relating to any misrepresentation, breach or inaccuracy
of
any representation, warranty, covenant or agreement made by such indemnifying
Person in this Agreement. The mechanics and procedures with respect to the
rights and obligations under this Section 4.2 shall be the same as those set
forth in Section 5 of the Registration Rights Agreement.
4.3. Non-Public
Information.
Each of
the Company and the Selling Stockholders covenant and agree that neither they
nor any other Person acting on their behalf will provide any Investor with
any
information that it believes constitutes material non-public information
concerning the Company, unless prior thereto such Investor shall have executed
a
written agreement regarding the confidentiality and use of such information.
Each of the Company and the Selling Stockholders understand and confirm that
each Investor shall be relying on the foregoing representations in effecting
transactions in securities of the Company.
4.4. Listing
of Shares.
The
Company agrees, (i) if the Company applies to have the Common Stock traded
on
any other Trading Market, it will include in such application the Shares, and
will take such other action as is necessary or desirable to cause such Shares
to
be listed on such other Trading Market as promptly as possible, and (ii) it
will
take all action reasonably necessary to continue the listing and trading of
its
Common Stock on a Trading Market and will comply in all material respects with
the Company’s reporting, filing and other obligations under the bylaws or rules
of the Trading Market.
ARTICLE
5.
CONDITIONS
PRECEDENT TO CLOSING
5.1. Conditions
Precedent to the Obligations of the Investors to Purchase Shares.
The
obligation of each Investor to acquire Shares at the Closing is subject to
the
satisfaction or waiver by such Investor, at or before the Closing Date, of
each
of the following conditions:
(a) Representations
and Warranties.
The
representations and warranties of the Company and the Selling Stockholders
contained herein shall be true and correct in all respects as of the date when
made and as of the Closing as though made on and as of such date;
(b) Performance.
Each of
the Company and the Selling Stockholders shall have performed, satisfied and
complied in all respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by
them
at or prior to the Closing;
(c) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any
of
the transactions contemplated by the Transaction Documents;
(d) No
Suspensions of Trading in Common Stock; Listing.
Trading
in the Common Stock shall not have been suspended by the Commission or any
Trading Market (except for any suspensions of trading of not more than one
Trading Day solely to permit dissemination of material information regarding
the
Company) at any time since the date of execution of this Agreement, and the
Common Stock shall have been at all times since such date listed for trading
on
a Trading Market; and
(e) Termination.
This
Agreement shall not have been terminated as to such Investor in accordance
with
Section 6.5.
5.2. Conditions
Precedent to the Obligations of the Company and the Selling Stockholders to
Sell
and Deliver Shares.
The
obligation of the Company and each Selling Stockholder to sell and/or deliver
(as applicable) Shares at the Closing is subject to the satisfaction or waiver
by the Company or the appropriate Selling Stockholder (as the case may be),
at
or before the Closing, of each of the following conditions:
(a) Representations
and Warranties.
The
representations and warranties of each Investor contained herein shall be true
and correct in all respects as of the date when made and as of the Closing
Date
as though made on and as of such date;
(b) Performance.
The
Investors shall have performed, satisfied and complied in all respects with
all
covenants, agreements and conditions required by the Transaction Documents
to be
performed, satisfied or complied with by then at or prior to the
Closing;
(c) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction
shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits the consummation of any
of
the transactions contemplated by the Transaction Documents; and
(d) Termination.
This
Agreement shall not have been terminated as to such Selling Stockholder in
accordance with Section 6.5.
ARTICLE
6.
MISCELLANEOUS
6.1. Fees
and
Expenses.
Each
party shall pay the fees and expenses of its advisers, counsel, accountants
and
other experts, if any, and all other expenses incurred by such party incident
to
the negotiation, preparation, execution, delivery and performance of the
Transaction Documents.
6.2. Entire
Agreement.
The
Transaction Documents, together with the Exhibits and Schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements, understandings, discussions and
representations, oral or written, with respect to such matters, which the
parties acknowledge have been merged into such documents, exhibits and
schedules.
6.3. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number specified
in
this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b)
the
next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time)
on
any Trading Day, (c) the Trading Day following the date of mailing (provided
next day delivery is specified), if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications shall
be
as follows:
|
If to the Company:
|
00
X. Xx Xxxxxx Xxxx, Xxxxx 0
Xxxxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attn:
President
|
|
|
With a copy to:
(which shall not constitute notice)
|
Xxxxxxxx
Xxxxxx Xxxxxxx & Hampton LLP
0000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx
Xxxxxxx, XX 00000
Facsimile
No.: (000) 000-0000
Attn:
C. Xxxxxx Xxxxxxx, Esq.
|
|
| If to a Selling Stockholder: | To the address set forth on its signature page hereto; | |
| If to an Investor: | To the address set forth on its signature page hereto; |
or
such other address as may be designated in writing
hereafter, in the same manner, by such Person.
6.4. Amendments;
Waivers; No Additional Consideration.
No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company and the Investors holding a majority of the
Shares and, if prior to Closing, each of the Selling Stockholders. In addition,
Sections 3.3, and Article 6 may not be waived or amended except in a written
instrument signed by the Investors holding 100% of the Shares, the Company
and
each of the Selling Stockholders. No waiver of any default with respect to
any
provision, condition or requirement of this Agreement shall be deemed to be
a
continuing waiver in the future or a waiver of any subsequent default 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. No consideration shall be offered or
paid
to any Investor to amend or consent to a waiver or modification of any provision
of any Transaction Document unless the same consideration is also offered to
all
Investors who then hold Shares.
6.5. Termination.
This
Agreement may be terminated prior to Closing:
(a) by
written agreement of each of the Investors and each of the Selling Stockholders;
and
(b) by
an
Investor (as to itself but no other Investor) upon written notice to the Selling
Stockholders and the Company, if the Closing shall not have taken place by
6:30
p.m. Eastern time on the Outside Date; provided,
that
the right to terminate this Agreement under this Section 6.5(b) shall not
be available to any Person whose failure to comply with its obligations under
this Agreement has been the cause of or resulted in the failure of the Closing
to occur on or before such time. Upon a termination in accordance with this
Section 6.5, the terminating Investor(s), as applicable, shall not have any
further obligation or liability (including as arising from such termination)
to
any other party and no Investor will have any liability to any other Investor
under the Transaction Documents as a result therefrom. No termination hereunder
will affect the right of any party to xxx for any breach by the other party
(or
parties) hereunder.
6.6. Construction.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party. This Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction
Documents.
6.7. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. Neither the Company nor any Selling
Stockholder may assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investors. Any Investor may assign
any
or all of its rights under this Agreement and the Registration Rights Agreement
to any Person to whom such Investor assigns or transfers any Shares, provided
that such assignment or transfer is made in accordance with all applicable
Exchange Act requirements and that such transferee agrees in writing to be
bound, with respect to the transferred Shares, by the provisions of the
Transaction Documents that apply to the “Investors.”
6.8. No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.2 (as to each Indemnified Party).
6.9. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each of the Company, the Investors
and
the Selling Stockholders agrees that all 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, employees or agents) shall be
commenced exclusively in the New York Courts. Each of the Company, the Investors
and the Selling Stockholders hereby irrevocably submits to the exclusive
jurisdiction of the New York Courts 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 the any of
the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such New York Court, or that such Proceeding has been
commenced in an improper or inconvenient forum. Each of the Company, the
Investors and the Selling Stockholders hereby irrevocably waives personal
service of process and consents to process being served in any such 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 manner
permitted by law. Each of the Company, the Investors and the Selling
Stockholders hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If any party shall commence a Proceeding to enforce any provisions
of a
Transaction Document, then the prevailing party in such Proceeding shall be
jointly and severally reimbursed by the adverse party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
6.10. Survival.
The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares.
6.11. Execution.
This
Agreement may be executed in two 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, 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 signature page were an original
thereof.
6.12. Severability.
If any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.13. Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Investors, the Company and
Selling Stockholders will be entitled to specific performance (without posting
a
bond or other security) under the Transaction Documents. The parties agree
that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
6.14. Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor under any Transaction Document are several and
not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. The decision of each Investor to
purchase Shares pursuant to the Transaction Documents has been made by such
Investor independently of any other Investor. Nothing contained herein or in
any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association,
a
joint venture or any other kind of group or entity, or create a presumption
that
the Investors are in any way acting in concert or as a group with respect to
such obligations or the transactions contemplated by the Transaction Documents.
Each Investor acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and that no Investor
will be acting as agent of such Investor in connection with monitoring its
investment in the Shares or enforcing its rights under the Transaction
Documents. Each Investor shall be entitled to independently protect and enforce
its rights, including without limitation the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose. Each of the Company and each Selling Stockholder
acknowledges that each of the Investors has been provided with the same
Transaction Documents for the convenience of the Company and the Selling
Stockholders for the purpose of closing a transaction with multiple Investors
and not because it was required or requested to do so by any
Investor.
6.15. Limitation
of Liability.
Notwithstanding anything herein to the contrary, each of the Company and each
Selling Stockholder acknowledges and agrees that the liability of an Investor
arising directly or indirectly, under any Transaction Document of any and every
nature whatsoever shall be satisfied solely out of the assets of such Investor,
and that no trustee, officer, other investment vehicle or any other Affiliate
of
such Investor or any investor, shareholder or holder of shares of beneficial
interest of such a Investor shall be personally liable for any liabilities
of
such Investor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
COMMERCE
PLANET, INC.
By:
/s/
Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Chairman of the Board and Chief Executive Officer
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR SELLING STOCKHOLDERS FOLLOW]
IN
WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement
as
of the date first written above.
NAME
OF SELLING STOCKHOLDER
eFund
Capital Partners LLC
/s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Title: Managing
Member
Tax
ID
No.: 00-0000000
NUMBER
OF SHARES BEING SOLD
1,800,000
ADDRESS
FOR NOTICE
c/o:
eFund
Capital Management, LLC
Street:
000
X.
Xxxxx Xxxx., Xxxxx 000
Xxxx/Xxxxx/Xxx:
Xxxx
Xxxxx, XX 00000
Attention:
Xxxxxxx
Xxxxx, Managing Member
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxxxx.xxx
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR INVESTORS FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
NAME
OF INVESTOR
CAMOFI
Master LDC
By:
/s/
Xxxxxxx X. Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
Authorized
Signatory
Investment
Amount: $950,000
Tax
ID
No.: 00-0000000
ADDRESS
FOR NOTICE
c/o:
Centrecourt Asset Management LLC
Street:
000
Xxxxxxx Xxx, 0xx Xx
City/State/Zip:
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx
Tel:
000-000-0000
Fax:
000-000-0000
DELIVERY
INSTRUCTIONS
(if
different from above)
c/o:
Street:
City/State/Zip:
Attention:
Tel:
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
NAME
OF INVESTOR
Crestview
Capital Master, LLC
By:
/s/
Xxxxxx Xxxx
Name:
Xxxxxx
Xxxx
Title:
Manager
Investment
Amount: $570,000
Tax
ID
No.: 00-0000000
ADDRESS
FOR NOTICE
c/o:
Xxxxxxxxx Xxxxxxx
Xxxxxx:
00
Xxxxxx Xxxxx, Xxx X
Xxxx/Xxxxx/Xxx:
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxx
Xxxxxxx/ Xxxx Xxxxxx
Tel:
000-000-0000
Fax:
000-000-0000
DELIVERY
INSTRUCTIONS
(if
different from above)
c/o:
Street:
City/State/Zip:
Attention:
Tel:
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
NAME
OF INVESTOR
Bear
Xxxxxxx Security Corp FBO J. Xxxxxx
Xxxxxxx
XXX R/O II
By:
/s/
Xxxxx Xxxxxxx
Name:
J.
Xxxxxx
Xxxxxxx
Title:
Sole
Beneficiary, Self-directed XXX
Investment
Amount: $1,900,000
Tax
ID
No.:
ADDRESS
FOR NOTICE
c/o:
Street:
City/State/Zip:
Attention:
Tel:
Fax:
DELIVERY
INSTRUCTIONS
(if
different from above)
c/o:
Xxxxxxxx Xxxxxxxx Xxxxxx
Street:
0000
00xx Xx. Xx.
Xxxx/Xxxxx/Xxx:
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxx
Tel:
000-000-0000
