EXHIBIT 4.1
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SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is dated as of
March 19, 2004, among Matritech, Inc., a Delaware corporation (the "Company"),
and each purchaser identified on the signature pages hereto (each a "Purchaser"
and collectively the "Purchasers"); and
WHEREAS, subject to the terms and conditions set forth in this
Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as
amended, and Rule 506 promulgated thereunder, the Company desires to issue and
sell to the Purchasers, and each Purchaser, severally and not jointly, desires
to purchase from the Company in the aggregate up to 4,858,887 shares of Common
Stock and Warrants on the Closing Date, as more fully described in this
Agreement.
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 and each Purchaser agrees
as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, for all purposes of this Agreement, the following terms have the
meanings indicated in this Section 1.1:
"Action" shall have the meaning ascribed to such term in
Section 3.1(j).
"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. With respect to a Purchaser, any investment
fund or managed account that is managed on a discretionary basis by the
same investment manager as such Purchaser will be deemed to be an
Affiliate of such Purchaser.
"Business Day" means any day except Saturday, Sunday and any
day which shall be 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
Common Stock and the Warrants pursuant to Section 2.1.
"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 the
Purchasers' obligations to (i) pay the Subscription Amount and (ii) the
Company's obligation to deliver the Securities have been satisfied or
waived.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock of the Company, $0.01
par value per share, and any securities into which such common stock
may hereafter be reclassified.
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"Common Stock Equivalents" means any securities of the Company
or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including without limitation, any debt,
preferred stock, rights, options, warrants or other instrument that is
at any time convertible into or exchangeable for, or otherwise entitles
the holder thereof to receive, Common Stock.
"Company Counsel" means Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP,
outside counsel to the Company, with offices at 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000.
"Disclosure Schedules" means the Disclosure Schedules
delivered concurrently herewith.
"Effective Date" means the date that the Registration
Statement is first declared effective by the Commission.
"Evaluation Date" shall have the meaning ascribed to such term
in Section 3.1(r).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"FW" means Xxxxxxx Xxxxxxxxx LLP with offices located at 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000.
"GAAP" shall have the meaning ascribed to such term in Section
3.1(h).
"Intellectual Property Rights" shall have the meaning ascribed
to such term in Section 3.1(o).
"Legend Removal Date" shall have the meaning ascribed to such
term in Section 4.1(c).
"Liens" means a lien, charge, security interest, encumbrance,
right of first refusal, preemptive right or other restriction.
"Material Adverse Effect" shall have the meaning ascribed to
such term in Section 3.1(b).
"Material Permits" shall have the meaning ascribed to such
term in Section 3.1(m).
"Per Share Purchase Price" equals $1.35, subject to adjustment
for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that
occur after the date of this Agreement.
"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.
"Pro Rata Portion" shall have the meaning ascribed to such
term in Section 4.11.
"Purchaser Parties" shall have the meaning ascribed to such
term in Section 4.8.
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"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Agreement, among the Company
and each Purchaser, 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 Purchasers of the Shares and the Warrant
Shares.
"Required Approvals" shall have the meaning ascribed to such
term in Section 3.1(e).
"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.
"SEC Reports" shall have the meaning ascribed to such term in
Section 3.1(h).
"Securities" means the Shares, the Warrants and the Warrant
Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means the shares of Common Stock issued or issuable
to each Purchaser pursuant to this Agreement.
"Subscription Amount" means, as to each Purchaser, the amounts
set forth below such Purchaser's signature block on the signature page
hereto, in United States dollars and in immediately available funds.
"Subsidiary" shall mean the subsidiaries of the Company, if
any, set forth on Schedule 3.1(a) and all future direct and indirect
subsidiaries of the Company.
"Trading Day" means (i) a day on which the Common Stock is
traded on a Trading Market, or (ii) if the Common Stock is not listed
on a Trading Market, a day on which the Common Stock is traded on the
over-the-counter market, as reported by the OTC Bulletin Board, or
(iii) if the Common Stock is not quoted on the OTC Bulletin Board, a
day on which the Common Stock is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or any
similar organization or agency succeeding 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 the following markets or exchanges on
which the Common Stock is listed or quoted for trading on the date in
question: the American Stock Exchange, the New York Stock Exchange, the
Nasdaq National Market or the Nasdaq SmallCap Market.
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"Transaction Documents" means this Agreement, the Warrants and
the Registration Rights Agreement and any other documents or agreements
executed in connection with the transactions contemplated hereunder.
"VWAP" means, for any date, the price determined by the first
of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average
price of the Common Stock for such date (or the nearest preceding date)
on the primary Trading Market on which the Common Stock is then listed
or quoted as reported by Bloomberg Financial L.P. (based on a Trading
Day from 9:30 a.m. ET to 4:02 p.m. Eastern Time) using the VAP
function; (b) if the Common Stock is not then listed or quoted on an
Trading Market and if prices for the Common Stock are then quoted on
the OTC Bulletin Board, the volume weighted average price of the Common
Stock for such date (or the nearest preceding date) on the OTC Bulletin
Board; (c) if the Common Stock is not then listed or quoted on the OTC
Bulletin Board and if prices for the Common Stock are then reported in
the "Pink Sheets" published by the National Quotation Bureau
Incorporated (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per share of
the Common Stock so reported; or (c) in all other cases, the fair
market value of a share of Common Stock as determined by a nationally
recognized-independent appraiser selected in good faith by Purchasers
holding a majority of Shares then outstanding.
"Warrants" means collectively the Common Stock purchase
warrants, in the form of Exhibit C, issuable to the Purchasers at the
Closing, which warrants shall be exercisable immediately and have an
exercise price equal to $2.00 and be exercisable for a period of 5
years.
"Warrant Shares" means the shares of Common Stock issuable
upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. At the Closing, each Purchaser shall purchase from the
Company, severally and not jointly with the other Purchasers, and the Company
shall issue and sell to each Purchaser, (a) a number of Shares equal to such
Purchaser's Subscription Amount divided by the Per Share Purchase Price and (b)
the Warrants as determined pursuant to Section 2.2(a)(iii). The aggregate
Subscription Amounts for Shares sold hereunder shall be for up to 4,858,887
shares. Upon satisfaction of the conditions set forth in Section 2.2, the
Closing shall occur at the offices of FW, or such other location as the parties
shall mutually agree.
2.2 Closing Conditions.
(a) At the Closing, the Company shall deliver or cause to be
delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
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(ii) a copy of the irrevocable instructions to the
Company's transfer agent instructing the transfer agent to
deliver, on an expedited basis, a certificate evidencing a
number of Shares equal to such Purchaser's Subscription Amount
divided by the Per Share Purchase Price, registered in the
name of such Purchaser;
(iii) within 3 Trading Days of the Closing Date, a
Warrant, registered in the name of such Purchaser, pursuant to
which such Purchaser shall have the right to acquire up to the
number of shares of Common Stock equal to 25% of the Shares to
be issued to such Purchaser at the Closing;
(iv) the Registration Rights Agreement duly executed
by the Company; and
(v) a legal opinion of Company Counsel, in the form
of Exhibit B attached hereto.
(b) At the Closing each Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser;
(ii) such Purchaser's Subscription Amount by wire
transfer to an account as specified in writing by the Company;
and
(iii) the Registration Rights Agreement duly executed
by such Purchaser.
(c) All representations and warranties of the other party
contained herein shall remain true and correct as of the Closing Date
and all covenants of the other party to be performed prior to the
Closing shall have been performed.
(d) From the date hereof to the Closing Date, trading in the
Common Stock shall not have been suspended by the Commission (except
for any suspension of trading of limited duration agreed to by the
Company, which suspension shall be terminated prior to the Closing),
and, at any time prior to the Closing Date, trading in securities
generally as reported by Bloomberg Financial Markets shall not have
been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such service, or
on any Trading Market, nor shall a banking moratorium have been
declared either by the United States or New York State authorities nor
shall there have occurred any material outbreak or escalation of
hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any
financial market which, in each case, in the reasonable judgment of
each Purchaser, makes it impracticable or inadvisable to purchase the
Shares at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except as set forth
in the Disclosure Schedules delivered concurrently herewith and, other than with
respect to Sections
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3.1(g), 3.1(t), 3.1(w), 3.1(v), 3.1(z), 3.1(aa), 3.1(bb) and 3.1(cc), except as
set forth in the SEC Reports, the Company hereby makes the following
representations and warranties as of the date hereof and as of the Closing Date
to each Purchaser:
(a) Subsidiaries. Schedule 3.1(a) sets forth all of the
Company's direct and indirect subsidiaries. The Company owns, directly
or indirectly, all of the capital stock or other equity interests of
each Subsidiary free and clear of any Liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and
similar rights. If the Company has no subsidiaries, then references in
the Transaction Documents to the Subsidiaries will be disregarded.
(b) Organization and Qualification. Each of the Company and
the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with
the requisite power and authority to own and use its properties and
assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation of any of the provisions of
its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it
makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have or
reasonably be expected to result in (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the results of operations, assets,
business or financial condition of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company's
ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii),
a "Material Adverse Effect").
(c) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and to consummate the
transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents 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
other than in connection with the Required Approvals. Each Transaction
Document 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 (i)
as limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
(d) No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the
Company of the transactions
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contemplated thereby do not and will not (i) conflict with or violate
any provision of the Company's or any Subsidiary's certificate or
articles of incorporation, bylaws or other organizational or charter
documents, or (ii) 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
(evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound
or affected, except to the extent that such conflict, default or right
is waived in writing, or (iii) subject to the Required Approvals,
result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as would not
have or reasonably be expected to result in a Material Adverse Effect.
(e) 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, other than (i) filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing
with the Commission of the Registration Statement, (iii) the notice
and/or application(s) to each applicable Trading Market for the listing
of the Shares and Warrant Shares for trading thereon in the time and
manner required thereby, and (iv) the filing of Form D with the
Commission and such filings as are required to be made under applicable
state securities laws (collectively the "Required Approvals").
(f) Issuance of the Securities. The Shares and Warrants are
duly authorized and, when issued and paid for in accordance with the
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction
Documents. The Warrant Shares, when issued in accordance with the terms
of the Transaction Documents, will be validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company. The
Company has reserved from its duly authorized capital stock the maximum
number of shares of Common Stock issuable pursuant to this Agreement
and the Warrants.
(g) Capitalization. The capitalization of the Company is as
described in the Company's most recent periodic report filed with the
Commission. The Company has not issued any capital stock since such
filing other than pursuant to the exercise of employee stock options
under the Company's stock option plans, the issuance of shares of
Common Stock to employees pursuant to the Company's employee stock
purchase plan and pursuant to the conversion or exercise of outstanding
Common Stock Equivalents. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to
participate in the transactions contemplated by the Transaction
Documents. Except as a result of the purchase and sale of the
Securities,
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there are no outstanding options, warrants, script rights to subscribe
to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exchangeable for,
or giving any Person any right to subscribe for or acquire, any shares
of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become
bound to issue additional shares of Common Stock, or securities or
rights convertible or exchangeable into shares of Common Stock. The
issue and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than
the Purchasers) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price
under such securities. All of the outstanding shares of capital stock
of the Company are validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws,
and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase
securities. No further approval or authorization of any stockholder,
the Board of Directors of the Company or others is required for the
issuance and sale of the Shares. Except as disclosed in the SEC
Reports, there are no stockholders agreements, voting agreements or
other similar agreements with respect to the Company's capital stock to
which the Company is a party or, to the knowledge of the Company,
between or among any of the Company's stockholders.
(h) SEC Reports; Financial Statements. The Company has filed
all reports 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 two years 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, 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, and
none of the SEC Reports, when filed, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
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 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 and provided that such unaudited statements
may not include footnotes otherwise required by GAAP.
(i) Material Changes. Since the date of the latest audited
financial statements included within the SEC Reports, except as
disclosed in the SEC Reports, (i) there has
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been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B)
liabilities not required to be reflected in the Company's financial
statements pursuant to GAAP or required to be disclosed in filings made
with the Commission, (iii) the Company has not altered its method of
accounting, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any
equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans. The Company does not
have pending before the Commission any request for confidential
treatment of information.
(j) Litigation. There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Company, threatened
against the Company, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county,
local or foreign) (collectively, an "Action") which (i) adversely
affects or challenges the legality, validity or enforceability of any
of the Transaction Documents or the Securities or (ii) could, if there
were an unfavorable decision, have or reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor, to the Company's knowledge, any director or officer thereof,
acting in his capacity as such, is or has been the subject of any
Action involving a claim of violation of or liability under federal or
state securities laws or a claim of breach of fiduciary duty that is
required to be disclosed in the Company's filings with the SEC pursuant
to Regulation S-K. There has not been, and to the knowledge of the
Company, there is not pending or contemplated, any investigation by the
Commission involving the Company or any current or former director or
officer of the Company. The Commission has not issued any stop order or
other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.
(k) Labor Relations. No material labor dispute exists or, to
the knowledge of the Company, is imminent with respect to any of the
employees of the Company which could reasonably be expected to result
in a Material Adverse Effect.
(l) Compliance. Neither the Company nor any Subsidiary (i) is
in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would
result in a default by the Company or any Subsidiary under), nor has
the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound (whether or not
such default or violation has been waived), (ii) is in violation of any
order of any court, arbitrator or governmental body, or (iii) is or has
been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign,
federal, state and local laws applicable to its business except in each
case as could not have a Material Adverse Effect.
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(m) Regulatory Permits. The Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities
necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits would not
reasonably be expected to result in a Material Adverse Effect
("Material Permits"), and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any Material Permit.
(n) Title to Assets. The Company and the Subsidiaries have
good and marketable title in fee simple to all real property owned by
them that is material to the business of the Company and the
Subsidiaries and good and marketable title in all personal property
owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except for
Liens as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries and Liens for the payment
of federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities
held under lease by the Company and the Subsidiaries are held by them
under valid, subsisting and enforceable leases of which the Company and
the Subsidiaries are in compliance, except where the failure to be in
compliance would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(o) Patents and Trademarks. To the knowledge of the Company
and each Subsidiary, the Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and
other similar rights that are necessary or material for use in
connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have or reasonably be
expected to result in a Material Adverse Effect (collectively, the
"Intellectual Property Rights"). Neither the Company nor any Subsidiary
has received a written notice that the Intellectual Property Rights
used by the Company or any Subsidiary violates or infringes upon the
rights of any Person, except to the extent that the Company reasonably
believes that such alleged violation or infringement can be resolved
without having a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable.
(p) Insurance. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which the Company and the Subsidiaries are engaged.
Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a
significant increase in cost.
(q) Transactions With Affiliates and Employees. Except as set
forth in the SEC Reports, none of the officers or directors of the
Company and, to the knowledge of the Company, none of the employees of
the Company is presently a party to any transaction with the Company or
any Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing
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for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of the
Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee
or partner, in each case in excess of $60,000 other than (i) for
payment of salary or consulting fees for services rendered, (ii)
reimbursement for expenses incurred on behalf of the Company and (iii)
for other employee benefits, including stock option agreements under
any stock option plan of the Company.
(r) Xxxxxxxx-Xxxxx; Internal Accounting Controls. The Company
is in material compliance with all provisions of the Xxxxxxxx-Xxxxx Act
of 2002 which are applicable to it as of the Closing Date. The Company
and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization, and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company has established disclosure
controls and procedures (as defined in Exchange Act Rules 13 and 15)
for the Company and designed such disclosure controls and procedures to
ensure that material information relating to the Company, including its
subsidiaries, is made known to the certifying officers by others within
those entities, particularly during the period in which the Company's
most recently filed periodic report under the Exchange Act, as the case
may be, is being prepared. The Company's certifying officers have
evaluated the effectiveness of the Company's controls and procedures as
of a date within 90 days prior to the filing date of the most recently
filed periodic report under the Exchange Act (such date, the
"Evaluation Date"). The Company presented in its most recently filed
periodic report under the Exchange Act the conclusions of the
certifying officers about the effectiveness of the disclosure controls
and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in
the Company's internal controls (as such term is defined in Item 307(b)
of Regulation S-K under the Exchange Act).
(s) Certain Fees. Except as set forth on the Disclosure
Schedule, no brokerage or finder's fees or commissions are or will be
payable by the Company 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
Purchasers shall have no obligation with respect to any fees or with
respect to any claims 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.
(t) Private Placement. Assuming the accuracy of the Purchasers
representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Purchasers as contemplated
hereby in accordance with the terms of the Transaction Documents. The
11
issuance and sale of the Securities hereunder does not contravene the
rules and regulations of the Trading Market.
(u) Investment Company. The Company is not, and is not an
Affiliate of, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(v) Registration Rights. Except as set forth on the disclosure
schedule to the Registration Rights Agreement, no Person has any right
to cause the Company to effect the registration under the Securities
Act of any securities of the Company that have not been satisfied.
(w) Listing and Maintenance Requirements. The Company's Common
Stock is registered pursuant to Section 12(b) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act nor has the Company received any
notification that the Commission is contemplating terminating such
registration. The Company has not, in the 12 months preceding the date
hereof, received notice from any Trading Market on which the Common
Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it
will not in the foreseeable future continue to be, in compliance with
all such listing and maintenance requirements.
(x) Tax Status. The Company and each of its Subsidiaries has
made or filed all federal, state and foreign income and all other tax
returns, reports and declarations required by any jurisdiction to which
it is subject and which are due (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books
provisions reasonably adequate for the payment of all unpaid and
unreported taxes or has obtained an extension of the deadline for such
filing) and has paid all taxes and other governmental assessments and
charges that are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being contested in
good faith and has set aside on its books provisions reasonably
adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. To the
Company's knowledge, there are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim. The
Company has not executed a waiver with respect to the statute of
limitations relating to the assessment or collection of any foreign,
federal, statue or local tax. To the Company's knowledge, none of the
Company's tax returns is presently being audited by any taxing
authority.
(y) Disclosure. The Company confirms that, neither the Company
nor any other Person acting on its behalf has provided any of the
Purchasers or their agents or counsel with any information that
constitutes or might constitute material, non-public information. The
Company understands and confirms that the Purchasers will rely on the
foregoing representations and covenants in effecting transactions in
securities of the Company. All disclosure provided to the Purchasers
regarding the Company, its business and the transactions contemplated
hereby, including the Disclosure Schedules to this
12
Agreement, furnished by or on behalf of the Company are true and
correct and do not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
(z) No Integrated Offering. Assuming the accuracy of the
Purchasers' representations and warranties set forth in Section 3.2,
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 security or solicited any offers to buy any security,
under circumstances that would cause this offering of the Securities to
be integrated with prior offerings by the Company for purposes of the
Securities Act or any applicable shareholder approval provisions,
including, without limitation, under the rules and regulations of any
exchange or automated quotation system on which any of the securities
of the Company are listed or designated.
(aa) Solvency. Based on the financial condition of the Company
as of the Closing Date after giving effect to the receipt by the
Company of the proceeds from the sale of the Securities hereunder, (i)
the Company's fair saleable value of its assets exceeds the amount that
will be required to be paid on or in respect of the Company's existing
debts and other liabilities (including known contingent liabilities) as
they mature; (ii) the Company's assets do not constitute unreasonably
small capital to carry on its business for the current fiscal year as
now conducted and as proposed to be conducted including its capital
needs taking into account the particular capital requirements of the
business conducted by the Company, and projected capital requirements
and capital availability thereof; and (iii) the current cash flow of
the Company, together with the proceeds the Company would receive, were
it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on
or in respect of its debt when such amounts are required to be paid.
The Company does not intend to incur debts beyond its ability to pay
such debts as they mature (taking into account the timing and amounts
of cash to be payable on or in respect of its debt).
(bb) Form S-3 Eligibility. The Company is eligible to register
the resale of its Common Stock by the Purchasers under Form S-3
promulgated under the Securities Act.
(cc) No Disagreements with Accountants and Lawyers. There are
no disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the accountants and
lawyers formerly or presently employed by the Company and the Company
is current with respect to any fees owed to its accountants and
lawyers.
(dd) General Solicitation. Neither the Company nor any person
acting on behalf of the Company has offered or sold any of the Shares
by any form of general solicitation or general advertising. The Company
has offered the Shares for sale only to the Purchasers and certain
other "accredited investors" within the meaning of Rule 501 under the
Securities Act.
(ee) Foreign Corrupt Practices. Neither the Company, nor to
the knowledge of the Company, any agent or other person acting on
behalf of the Company, has (i) directly or indirectly, used any corrupt
funds for unlawful contributions, gifts, entertainment or
13
other unlawful expenses related to foreign or domestic political
activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic
political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company (or made by any
person acting on its behalf of which the Company is aware) which is in
violation of law, or (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as amended.
(ff) Acknowledgment Regarding Purchasers' Purchase of Shares.
The Company acknowledges and agrees that each of the Purchasers is
acting solely in the capacity of an arm's length purchaser with respect
to the Transaction Documents and the transactions contemplated hereby.
The Company further acknowledges that no Purchaser is acting as a
financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by any Purchaser or any of
their respective representatives or agents in connection with this
Agreement and the transactions contemplated hereby is merely incidental
to the Purchasers' purchase of the Shares. The Company further
represents to each Purchaser that the Company's decision to enter into
this Agreement has been based solely on the independent evaluation of
the transactions contemplated hereby by the Company and its
representatives.
3.2 Representations and Warranties of the Purchasers. Each Purchaser
hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows:
(a) Organization; Authority. Such Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with full right, 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 Purchaser of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action
on the part of such Purchaser. Each Transaction Document to which it is
party has been duly executed by such Purchaser, and when delivered by
such Purchaser in accordance with the terms hereof, will constitute the
valid and legally binding obligation of such Purchaser, enforceable
against it in accordance with its terms except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally, (ii) as limited
by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by
applicable law.
(b) Investment Intent. Such Purchaser understands that the
Securities are "restricted securities" and have not been registered
under the Securities Act or any applicable state securities law and is
acquiring the Securities as principal for its own account for
investment purposes only and not with a view to or for distributing or
reselling such Securities or any part thereof, has no present intention
of distributing any of such Securities and has no arrangement or
understanding with any other persons regarding the distribution of such
Securities (this representation and warranty not limiting
14
such Purchaser's right to sell the Securities pursuant to the
Registration Statement or otherwise in compliance with applicable
federal and state securities laws). Such Purchaser is acquiring the
Securities hereunder in the ordinary course of its business. Such
Purchaser does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the Securities.
(c) Purchaser Status. At the time such Purchaser was offered
the Securities, it was, and at the date hereof it is, and on each date
on which it exercises any Warrants, it will be either: (i) an
"accredited investor" as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7) or (a)(8) under the Securities Act or (ii) a "qualified
institutional buyer" as defined in Rule 144A(a) under the Securities
Act. Such Purchaser is not required to be registered as a broker-dealer
under Section 15 of the Exchange Act.
(d) Experience of Such Purchaser. Such Purchaser, either alone
or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective
investment in the Securities, and has so evaluated the merits and risks
of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to
afford a complete loss of such investment.
(e) General Solicitation. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities 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.
(f) Residence. If such Purchaser is an individual, then such
Purchaser resides in the state or province identified in the address of
such Purchaser set forth on the signature page hereto; if such
Purchaser is a partnership, corporation, limited liability company or
other entity, then the office or offices of such Purchaser in which its
investment decision was made is located at the address or addresses of
such Purchaser set forth on the signature page hereto.
(g) Rule 144. Subject to Section 4.1(a), such Purchaser
acknowledges and agrees that the Securities are "restricted securities"
as defined in Rule 144 promulgated under the Securities Act as in
effect from time to time and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from
such registration is available. Such Purchaser has been advised or is
aware of the provisions of Rule 144, which permits limited resale of
shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things: the availability of
certain current public information about the Company, the resale
occurring following the required holding period under Rule 144 and the
number of shares being sold during any three-month period not exceeding
specified limitations.
(k) Company Information. Such Purchaser has read the SEC
Reports and has had an opportunity to discuss the Company's business,
management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the
Company's operations and facilities. Such Purchaser has also had the
15
opportunity to ask questions of and receive answers from, the Company
and its management regarding the terms and conditions of this
investment.
The Company acknowledges and agrees that each Purchaser does not make
or has not made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in this
Section 3.2.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer Restrictions. (a) The Securities may only be disposed of
in compliance with state and federal securities laws and, in the case of the
Warrants and the Warrant Shares, subject to the terms of the Warrants. In
connection with any transfer of Securities other than pursuant to an effective
registration statement or Rule 144, to the Company, to an Affiliate of a
Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the
Company may require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor, the form and substance of which opinion
and choice of counsel shall be reasonably satisfactory to the Company, to the
effect that such transfer does not require registration of such transferred
Securities under the Securities Act. As a condition of transfer, any such
transferee shall agree in writing to be bound by the terms of this Agreement and
shall have the rights of a Purchaser under this Agreement and the Registration
Rights Agreement.
(b) The Purchasers agree to the imprinting, so long as is
required by this Section 4.1(b), of a legend on any of the Securities
in the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE
REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A
REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN
RULE 501(a) UNDER THE SECURITIES ACT.
The Company acknowledges and agrees that a Purchaser may from
time to time pledge pursuant to a bona fide margin agreement with a
registered broker-dealer or grant a security interest in some or all of
the Securities to a financial institution that is an
16
"accredited investor" as defined in Rule 501(a) under the Securities
Act and, if required under the terms of such arrangement, such
Purchaser may transfer pledged or secured Securities to the pledgees or
secured parties. Such a pledge or transfer would not be subject to
approval of the Company and no legal opinion of legal counsel of the
pledgee, secured party or pledgor shall be required in connection
therewith. Further, no notice shall be required of such pledge. At the
appropriate Purchaser's expense, the Company will execute and deliver
such reasonable documentation as a pledgee or secured party of
Securities may reasonably request in connection with a pledge or
transfer of the Securities, including, if the Securities are subject to
registration pursuant to the Registration Rights Agreement, the
preparation and filing of any required prospectus supplement under Rule
424(b)(3) under the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder.
(c) Certificates evidencing the Shares and Warrant Shares
shall not contain any legend (including the legend set forth in Section
4.1(b)), (i) while a registration statement (including the Registration
Statement) covering the resale of such security is effective under the
Securities Act, or (ii) following any sale of such Shares or Warrant
Shares pursuant to Rule 144, or (iii) if such Shares or Warrant Shares
are eligible for sale under Rule 144(k), or (iv) if such legend is not
required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the Staff of the
Commission). The Company shall cause its counsel to issue a legal
opinion to the Company's transfer agent promptly after the Effective
Date if required by the Company's transfer agent to effect the removal
of the legend hereunder. If all or any portion of a Warrant is
exercised at a time when there is an effective registration statement
to cover the resale of the Warrant Shares, such Warrant Shares shall be
issued free of all legends. The Company agrees that following the
Effective Date relating to the Shares and Warrant Shares or at such
time as such legend is no longer required under this Section 4.1(c), it
will, no later than five Trading Days following the delivery by a
Purchaser to the Company or, if the Company so directs, to the
Company's transfer agent of a certificate representing Shares or
Warrant Shares, as the case may be, issued with a restrictive legend
(such date, the "Legend Removal Date"), deliver or cause to be
delivered to such Purchaser a certificate representing such Securities
that is free from all restrictive and other legends. The Company may
not make any notation on its records or give instructions to any
transfer agent of the Company that enlarge the restrictions on transfer
set forth in this Section.
(d) In addition to such Purchaser's other available remedies,
the Company shall pay to a Purchaser, in cash, as partial liquidated
damages and not as a penalty, for each $1,000 of Shares or Warrant
Shares (based on the VWAP of the Common Stock on the date such
Securities are submitted to the Company's transfer agent) subject to
Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day
five (5) Trading Days after such damages have begun to accrue) for each
Trading Day after such third Trading Day after the Legend Removal Date
until such certificate is delivered. Nothing herein shall limit such
Purchaser's right to pursue actual damages for the Company's failure to
deliver certificates representing any Securities as required by the
Transaction Documents, and such Purchaser shall have the right to
pursue all remedies available to it at law or in equity including,
without limitation, a decree of specific performance and/or injunctive
relief.
17
(e) Each Purchaser, severally and not jointly with the other
Purchasers, agrees that the removal of the restrictive legend from
certificates representing Securities as set forth in this Section 4.1
is predicated upon the Company's reliance that the Purchaser will sell
any Securities pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom.
(f) Until the date that each Purchaser holds less than 20% of
the Shares initially purchased hereunder by such Purchaser, the Company
shall not undertake a reverse or forward stock split or
reclassification of the Common Stock without the prior written consent
of the Purchasers holding a majority in interest of the Shares.
4.2 Furnishing of Information. As long as any Purchaser owns
Securities, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Exchange Act. As long as any Purchaser owns Securities, if the Company is not
required to file reports pursuant to such laws, it will prepare and furnish to
the Purchasers and make publicly available in accordance with Rule 144(c) such
information as is required for the Purchasers to sell the Securities under Rule
144. The Company further covenants that it will take such further action as any
holder of Securities may reasonably request, all to the extent required from
time to time to enable such Person to sell such Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144.
4.3 Integration. The Company shall not sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Securities in a manner that would require the registration under the
Securities Act of the sale of the Securities to the Purchasers or that would be
integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent transaction.
4.4 Securities Laws Disclosure; Publicity. The Company shall, within
one Trading Day following the Closing Date, issue a press release or file a
Current Report on Form 8-K, in each case reasonably acceptable to each Purchaser
disclosing the transactions contemplated hereby. The Company and each Purchaser
shall consult with each other in issuing any press releases with respect to the
transactions contemplated hereby, and neither the Company nor any Purchaser
shall issue any such press release or otherwise make any such public statement
without the prior consent of the Company, with respect to any press release of
any Purchaser, or without the prior consent of each Purchaser, with respect to
any press release of the Company, which consent shall not unreasonably be
withheld, except if such disclosure is required by law, in which case the
disclosing party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the foregoing, the
Company shall not publicly disclose the name of any Purchaser, or include the
name of any Purchaser in any filing with the Commission or any regulatory agency
or Trading Market, without the prior written consent of such Purchaser, except
(i) as required by federal securities law in connection with the registration
statement contemplated by the Registration Rights Agreement and (ii) to the
extent such disclosure is required by law or Trading Market regulations, in
which case the Company
18
shall provide the Purchasers with prior notice of such disclosure permitted
under subclause (i) or (ii).
4.5 Shareholders Rights Plan. No claim will be made or enforced by the
Company or, to the knowledge of the Company, any other Person that any Purchaser
is an "Acquiring Person" under any shareholders rights plan or similar plan or
arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by
virtue of receiving Securities under the Transaction Documents or under any
other agreement between the Company and the Purchasers. The Company shall
conduct its business in a manner so that it will not become subject to the
Investment Company Act.
4.6 Non-Public Information. The Company covenants and agrees that
neither it nor any other Person acting on its behalf will provide any Purchaser
or its agents or counsel with any information that the Company believes
constitutes material non-public information, unless prior thereto such Purchaser
shall have executed a written agreement regarding the confidentiality and use of
such information. The Company understands and confirms that each Purchaser shall
be relying on the foregoing representations in effecting transactions in
securities of the Company.
4.7 Use of Proceeds. Except as set forth on Schedule 4.7 attached
hereto, the Company shall use the net proceeds from the sale of the Securities
hereunder for working capital purposes and not for the satisfaction of any
portion of the Company's debt (other than payment of trade payables, in the
ordinary course of the Company's business and prior practices), to redeem any
Company equity or equity-equivalent securities or to settle any outstanding
litigation.
4.8 Indemnification of Purchasers. Subject to the provisions of this
Section 4.8, the Company will indemnify and hold the Purchasers and their
directors, officers, shareholders, partners, employees and agents (each, a
"Purchaser Party") harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys' fees and
costs of investigation that any such Purchaser Party may suffer or incur as a
result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in
the other Transaction Documents or (b) any action instituted against a
Purchaser, or any of them or their respective Affiliates, by any stockholder of
the Company who is not an Affiliate of such Purchaser, with respect to any of
the transactions contemplated by the Transaction Documents (unless such action
is based upon a breach of such Purchaser's representation, warranties or
covenants under the Transaction Documents or any agreements or understandings
such Purchaser may have with any such stockholder or any violations by the
Purchaser of state or federal securities laws or any conduct by such Purchaser
which constitutes fraud, gross negligence, willful misconduct or malfeasance).
If any action shall be brought against any Purchaser Party in respect of which
indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and the Company shall have the right to
assume the defense thereof with counsel of its own choosing. Any Purchaser Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Purchaser Party except to the extent that (i)
the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in
19
the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Company and the position of such
Purchaser Party. The Company will not be liable to any Purchaser Party under
this Agreement (i) for any settlement by an Purchaser Party effected without the
Company's prior written consent, which shall not be unreasonably withheld or
delayed; or (ii) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party's breach of any of
the representations, warranties, covenants or agreements made by the Purchasers
in this Agreement or in the other Transaction Documents.
4.9 Reservation of Common Stock. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue Shares pursuant to this
Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing of Common Stock. The Company hereby agrees to use
commercially reasonably efforts to maintain the listing of the Common Stock on
the Trading Market, and as soon as reasonably practicable following the Closing
(but not later than the earlier of the Effective Date and the first anniversary
of the Closing Date) to list all of the Shares and Warrant Shares on the Trading
Market. The Company further agrees, if the Company applies to have the Common
Stock traded on any other Trading Market, it will include in such application
all of the Shares and Warrant Shares, and will take such other action as is
necessary to cause the Shares and Warrant Shares to be listed on such other
Trading Market as promptly as possible. The Company 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 respects with the Company's reporting,
filing and other obligations under the bylaws or rules of the Trading Market.
4.11 Equal Treatment of Purchasers. No consideration shall be offered
or paid to any person to amend or consent to a waiver or modification of any
provision of any of the Transaction Documents unless the same consideration is
also offered to all of the parties to the Transaction Documents. For
clarification purposes, this provision constitutes a separate right granted to
each Purchaser by the Company and negotiated separately by each Purchaser, and
is intended to treat for the Company the Purchasers as a class and shall not in
any way be construed as the Purchasers acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or otherwise.
4.12 Deliver of Securities After Closing. The Company shall deliver, or
cause to be delivered, the respective Shares and Warrants purchased by each
Purchaser to such Purchaser within 3 Trading Days of the Closing Date.
4.13 No Net Short Position. Each Purchaser agrees, severally and not
jointly with any other Purchasers, that they or any Person acting at the request
or direction of Purchaser, will not enter into any Short Sales (as hereinafter
defined) from the period commencing on the Closing Date and ending on the date
that such Purchaser no longer holds any Shares. For purposes of this Section
4.13, a "Short Sale" by any Purchaser shall mean a sale of Common Stock by such
Purchaser that is marked as a short sale and that is made at a time when there
is no equivalent offsetting long position in Common Stock held by such
Purchaser. For purposes of determining whether there is an equivalent offsetting
long position in Common Stock held by the Purchaser,
20
Warrant Shares that have not yet been exercised pursuant to the Warrants shall
be deemed to be held long by the Purchaser, and the amount of shares of Common
Stock held in a long position shall be all Shares and Warrant Shares (ignoring
any exercise limitations included therein) held by such Purchaser on such date,
plus any shares of Common Stock otherwise then held by such Purchaser.
Additionally, each Purchaser understands and acknowledges, severally and not
jointly with any other Purchaser, that the SEC currently takes the position that
coverage of short sales of shares of the Common Stock "against the box" prior to
the Effective Date of the Registration Statement with the Shares purchased
hereunder is a violation of Section 5 of the Securities Act, as set forth in
Item 65, Section 5 under Section A, of the Manual of Publicly Available
Telephone Interpretations, dated July 1997, compiled by the Office of Chief
Counsel, Division of Corporation Finance. Accordingly, each Purchaser hereby
agrees not to use any of the Shares to cover any short sales made prior to the
Effective Date.
ARTICLE V.
MISCELLANEOUS
5.1 Fees and Expenses. Except as otherwise set forth in this Agreement,
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
this Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the sale of the Securities.
5.2 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 and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
5.3 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 at the facsimile number
set forth on the signature pages attached hereto 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 set forth on the signature pages attached hereto 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 second Trading Day following the date of mailing, 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 set forth on the signature pages attached
hereto.
5.3 Amendments; Waivers. No provision of this Agreement may be waived
or amended except in a written instrument signed, in the case of an amendment,
by the Company and each Purchaser or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. 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.
21
5.4 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.
5.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each Purchaser. Any Purchaser may assign
any or all of its rights under this Agreement to any Person to whom such
Purchaser assigns or transfers any Securities, provided such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the
provisions hereof that apply to the "Purchasers".
5.6 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 4.8.
5.7 Governing Law. 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
New York, 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 the
City of New York. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
New York 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. Each party hereto
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by delivering a copy thereof
via 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 party hereto (including its
affiliates, agents, officers, directors and employees) 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 either party shall
commence an action or proceeding to enforce any provisions of a Transaction
Document, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its attorneys' fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
action or proceeding.
5.8 Survival. The representations and warranties contained herein shall
survive the earlier of (a) the second anniversary of the Closing Date and (b)
the date on which the Shares and
22
Warrant Shares are no longer outstanding. The agreements and covenants contained
herein shall survive, as to a Purchaser and unless otherwise set forth in the
Transaction Documents, until such Purchaser no longer holds any Securities.
5.9 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.
5.10 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.
5.11 Replacement of Securities. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
5.12 Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance 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.
5.13 Payment Set Aside. To the extent that the Company makes a payment
or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
5.14 Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the
23
obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser 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 Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by its own
separate legal counsel in their review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, Purchasers and their
respective counsel have chosen to communicate with the Company through FW. FW
does not represent all of the Purchasers but only Xxxxxx & Xxxxxxx, Inc., who
acted as placement agent to the transaction. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience
of the Company and not because it was required or requested to do so by the
Purchasers.
(SIGNATURE PAGE FOLLOWS)
24
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.
MATRITECH, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
Address for Notice:
-------------------
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx, 00000
Attn: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
25
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Alexandra Global Master Fund Ltd.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Chairman & CEO, Alexandra Investment Management,
LLC
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity: Alexandra Investment Management, LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 250,000
Shares: 185,185
Warrant Shares: 46,296
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Alpha Capital AG
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx Xxxxxxxx
------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Director
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity:
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 300,000
Shares: 222,222
Warrant Shares: 55,556
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Basso Equity Opportunity Holding Fund Ltd.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Authorized Signatory
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxxxxx@xxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: c/o Basso Capital
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 150,000
Shares: 111,111
Warrant Shares: 27,778
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Bristol Investment Fund, Ltd
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxx Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxx Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Director
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: Bristol Capital Advisors, LLC
0000 Xxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxx, Esq.
Fax: (000) 000-0000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 400,000
Shares: 296,296
Warrant Shares: 74,074
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Close Finsbury Global Investment-
Universal Life Sciences
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Huaizheng Peng
-------------------------
Name of Authorized Signatory: Huaizheng Peng
--------------------------------------------------
Title of Authorized Signatory: Fund Manager
-------------------------------------------------
Email Address of Authorized Entity: xxxxx@xxxxxxx.xxx
---------------------------------------------
Address for Notice of Investing Entity: Close Finsbury Universal Life Sciences
0 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 29,999.70
Shares: 22,222
Warrant Shares: 5,556
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Cranshire Capital, L.P.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxx Xxxxx
-------------------------
Name of Authorized Signatory: Xxxxx Xxxxx
--------------------------------------------------
Title of Authorized Signatory: President - Downsview Capital
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxxx@xxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 000 Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 349,999.65
Shares: 259,259
Warrant Shares: 64,815
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Crestview Capital Master, LLC
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx Xxxx
-------------------------
Name of Authorized Signatory: Xxxxxx Xxxx
--------------------------------------------------
Title of Authorized Signatory: Managing Director
-------------------------------------------------
Email Address of Authorized Entity: xxx@xxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 0 Xxxxxx Xxxxx
Xxxxx X
Xxxxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 750,000
Shares: 555,556
Warrant Shares: 138,889
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Crescent International, Ltd.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxx Xxxx; Maxi Brezzi
-------------------------
Name of Authorized Signatory: Xxx Xxxx; Maxi Brezzi
--------------------------------------------------
Title of Authorized Signatory: Authorized Signatory
-------------------------------------------------
Email Address of Authorized Entity: xxxx@xxxxxxxxxx.xxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: GreenLight (Switzerland) SA
84, Xx. Xxxxx-Xxxxx
XX 0000 XXXXXXXX, Xxxxxx
Xxxxxxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 270,000
Shares: 200,000
Warrant Shares: 50,000
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: DKR SoundShore Oasis Holding Fund Ltd
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx Xxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxx
--------------------------------------------------
Title of Authorized Signatory: Alternate Director
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity: DKR Oasis Management Company LP
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 100,000
Shares: 74,074
Warrant Shares: 18,519
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Xxxxxxx Associates, L.P.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Vice President, Xxxxxxx Associates, Inc.
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 99,999.90
Shares: 74,074
Warrant Shares: 18,519
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Elliot International, L.P.
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx Xxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Vice President, Elliot International Capital
Advisors, Inc.
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity: c/o Elliot Management Corp
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 149,999.85
Shares: 111,111
Warrant Shares: 27,778
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Fountainhead Fund
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx Xxxxxxxxxxx
------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Managing Partner
-------------------------------------------------
Email Address of Authorized Entity: Xxxxxxx@xxxxxxxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 135,000.00
Shares: 100,000
Warrant Shares: 25,000
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: JIBS Equities, LP
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxx Xxxxxx
--------------------------
Name of Authorized Signatory: Xxxxx Xxxxxx
--------------------------------------------------
Title of Authorized Signatory: Chief Financial Officer
-------------------------------------------------
Email Address of Authorized Entity: xxx00@xxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: X.X. Xxx 00
Xxxx & Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 250,000
Shares: 185,185
Warrant Shares: 46,296
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Xxxxxxx Partners LP
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx Xxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxx
--------------------------------------------------
Title of Authorized Signatory: Managing Member, Xxxxxxx Capital, LLC
-------------------------------------------------
Email Address of Authorized Entity: xx@xxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 337,500.00
Shares: 250,000
Warrant Shares: 62,500
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Omicron Master Trust
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxx Xxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxx Xxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Managing Partner
-------------------------------------------------
Email Address of Authorized Entity: xx@xxxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 000 Xxxxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
Tel. (000) 000-0000
Fax (000) 000-0000
Attn: Xxxxx Xxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 1,200,000.15
Shares: 888,889
Warrant Shares: 222,222
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: OTAPE Investments LLC
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx X. Xxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx X. Xxxxx
--------------------------------------------------
Title of Authorized Signatory: General Counsel
-------------------------------------------------
Email Address of Authorized Entity: xxxx.xxxxxx@xx.xxx
--------------------------------------------
Address for Notice of Investing Entity: OTAPE Investments LLC
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Subscription Amount: 135,000.00
Shares: 100,000
Warrant Shares: 25,000
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Portside Growth and Opportunity Fund
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxx Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxx Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Managing Member
-------------------------------------------------
Email Address of Authorized Entity: xxxxxx@xxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: c/o Ramius Capital Group
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 299,999.70
Shares: 222,222
Warrant Shares: 55,556
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: RHP Master Fund, Ltd
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxx Xxxxxxx
--------------------------
Name of Authorized Signatory: Xxxxx Xxxxxxx
---------------------------------------------------
Title of Authorized Signatory: Director, RHP General Partner LLC
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxx@xxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: c/o Rock Hill Investment Management LP
0 Xxxx Xxxxx - Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Legal Department
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 200,000.00
Shares: 148,148
Warrant Shares: 37,037
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Spectra Capital Management, LLC
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx X. Xxxxxx
--------------------------------------------------
Title of Authorized Signatory: Sole Member
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 00 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 250,000.00
Shares: 185,185
Warrant Shares: 46,296
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: SRG Capital, LLC
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx X. Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Chief Financial Officer
-------------------------------------------------
Email Address of Authorized Entity: Xxxx@xxxxxxxxxxxxx.xxx;
xxxxxxxx@xxxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 75,000.60
Shares: 55,556
Warrant Shares: 13,889
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Xxxxxxxxxxx, XX
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ X. Xxxxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: President
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity:
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 300,000.00
Shares: 222,222
Warrant Shares: 55,556
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: TCMP3 Partners
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxx X. Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Principal/General Partner
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxx@xxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: c/o Titan Capital Management
0 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 150,000.00
Shares: 111,111
Warrant Shares: 27,778
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Topaz Partners
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxx Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxx Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Manager
-------------------------------------------------
Email Address of Authorized Entity:
--------------------------------------------
Address for Notice of Investing Entity: c/o Jemmco Capital Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 250,000.00
Shares: 185,185
Warrant Shares: 46,296
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
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IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Whalehaven Fund Limited
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxx Xxxxxxxxxxx
-------------------------
Name of Authorized Signatory: Xxxx Xxxxxxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Director
-------------------------------------------------
Email Address of Authorized Entity: xxxxxxxxxxxx@xxxxxxxxxxxx.xxx
--------------------------------------------
Address for Notice of Investing Entity: 0xx Xxxxx, 00 Xxx-Xx-Xxxxx Xxxx
Xxxxxxxx, XX00
Xxxxxxx
Address for Delivery of Securities for Investing Entity (if not same as above):
Desjardins Securities
Suite 2750
000 Xxxx Xxxxxx X.
Xxxxxxx, XX X0X
Xxxxxx
Subscription Amount: 100,000.00
Shares: 74,074
Warrant Shares: 18,519
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
IN WITNESS WHEREOF, the undersigned have caused this MZT Securities
Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Name of Investing Entity: Xxxxxxx Xxxxxxx
------------------------------------------------------
SIGNATURE OF AUTHORIZED SIGNATORY OF INVESTING ENTITY: /s/ Xxxxxxx Xxxxxxx
-------------------------
Name of Authorized Signatory: Xxxxxxx Xxxxxxx
--------------------------------------------------
Title of Authorized Signatory: Self
-------------------------------------------------
Email Address of Authorized Entity: xxxx@xxxxxxxxxx.xx
--------------------------------------------
Address for Notice of Investing Entity: c/o Little Bear Investments LLC
00 Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Address for Delivery of Securities for Investing Entity (if not same as above):
Subscription Amount: 27,000.00
Shares: 20,000
Warrant Shares: 5,000
EIN Number: [WE SUGGEST YOU PROVIDE THIS UNDER SEPARATE COVER]
26
