BBM HOLDINGS, INC. UNIT SUBSCRIPTION AGREEMENT SERIES B CONVERTIBLE PREFERRED STOCK AND WARRANTS
SERIES
B CONVERTIBLE PREFERRED STOCK AND WARRANTS
UNIT
SUBSCRIPTION AGREEMENT (the “Agreement”) dated as
of May 31, 2009 between BBM Holdings, Inc. (f/k/a Broadband Maritime of Utah
Inc.), a Utah corporation (the “Company”), and the
persons who execute this agreement as investors (each an “Investor” and,
collectively, the “Investors”).
WITNESSETH:
WHEREAS,
the Company desires to sell to the Investors, and the Investors desire to
purchase, an aggregate of up to 6,000,000 shares of Series B Stock (as defined
below) of the Company (the “Shares”), in Units
(as defined below) with 5-year warrants, in substantially the form attached
hereto as Exhibits
1 and 2
(the “Class F
Warrants” and “Class G Warrants”
respectively), exercisable after receipt of Required Stockholder Approval to
purchase an aggregate of up to 6,000,000 shares and 6,000,000 shares,
respectively, of Common Stock of the Company (the “Warrant Shares”) at
$.18 per share (the “Warrants”), all for
an aggregate price of $1,080,000;
WHEREAS,
the following terms appearing herein shall have the following
meanings:
“Actions” has the
meaning set forth in Section 2.13.
“Agreement” has the
meaning set forth in the preamble.
“AIGH” shall mean AIGH
Investment Partners, LLC, a Utah limited liability company.
“Blue Sky Laws” has
the meaning set forth in Section 2.9(b).
“Capitalization Table”
has the meaning set forth in Section 2.2(a).
“Certificate of
Incorporation” means the Amended and Restated Certificate of
Incorporation of the Company filed with the Secretary of State of the State of
Utah.
“Closing” and “Closing Date” have
the meanings set forth in Section 1.2.
“Closing Certificate
has the meaning set forth in Section 1.3(d).
“Common Stock” shall
mean stock of the Company of any class (however designated) whether now or
hereafter authorized, which generally has the right to participate in the voting
and in the distribution of earnings and assets of the Company without limit as
to amount or percentage, including the Company’s Common Stock, no par value per
share.
“Company” has the
meaning set forth in the preamble and includes any corporation that shall
succeed to or assume, directly or indirectly, the obligations of the Company
hereunder.
“Contemplated
Transactions” has the meaning set forth in Section
2.1(b).
“Conversion Price” has
the meaning assigned thereto in the Certificate of Incorporation.
The term
“corporation”
shall mean any corporation, association, joint stock company, business trust,
limited liability company or other similar organization.
“Employee” has the
meaning set forth in Section 2.15(c).
“Event” has the
meaning set forth in Section 2.14.
“Exercise Price” shall
mean $.18 per share.
“Financial Statements”
has the meaning set forth in Section 2.11.
“Governmental Body”
shall mean any: (a) nation, state, commonwealth,
province, municipality, or district; (b) federal, state, local,
municipal, foreign or other government; or (c) governmental or
quasi-governmental authority of any nature (including any governmental division,
department, agency, commission, instrumentality, official, organization, unit,
body or entity and any court or other tribunal).
“Investors” has the
meaning set forth in the preamble.
“Knowledge” or “Knowledgeable” shall
mean the actual knowledge of the Company’s Chief Executive Officer and Chief
Financial Officer.
“Legal Requirement”
has the meaning set forth in Section 2.10.
“Material Adverse
Change” shall mean a material adverse change in the business, financial
condition, results of operation, properties or operations of the Company taken
as a whole.
“Material Adverse
Effect” shall mean a material adverse effect on the operations, assets,
liabilities, financial condition or business of the Company.
“Material Agreement”
shall mean any material note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the
Company is a party or by which the Company or any property or asset of the
Company is bound or affected.
“Ordinary Course of
Business” has the meaning set forth in Section 2.14.
“Own” shall mean own
beneficially, as that term is defined in the rules and regulations of the
SEC.
“Person” shall mean
any individual, sole proprietorship, partnership, corporation, limited liability
company, business trust, unincorporated association, joint stock corporation,
trust, joint venture or other entity, any university or similar institution, or
any government or any agency or instrumentality or political subdivision
thereof.
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“Proposal” shall mean
the merger (the “Merger”) into a
wholly owned subsidiary of the Company to be organized in Delaware, which will
effect a change of the name of the Company to Ohr Pharmaceutical Inc. (or a
similar name), reincorporation in Delaware and an increase in the authorized
capital stock of the Company to 150,000,000 shares of Common Stock, $0.0001 par
value per share, and 15,000,000 shares of serial preferred stock, $0.0001 par
value per share, of which 6,000,000 shares shall be designated as Series B
Convertible Preferred Stock, having substantially the same terms as the Series B
Stock.
“Proprietary Assets”
has the meaning set forth in Section 2.15(a).
“Required Stockholder
Approval” shall mean a vote in favor of the Proposal of more than 50% of
the outstanding voting shares of the Company.
“SEC” shall mean the
Securities and Exchange Commission.
“Securities” shall
mean the Shares and the Warrants.
“Securities Act” has
the meaning set forth in Section 2.5.
“Series B Stock” shall
mean the Series B Convertible Preferred Stock, no par value per share, of the
Company, having the terms set forth in the Certificate of Designation, in the
form attached hereto as Exhibit
3.
“Shares” has the
meaning set forth in the preamble.
“Subsidiary” shall
mean, immediately prior to the Closing, any corporation of which stock or other
interest having ordinary power to elect a majority of the Board of Directors (or
other governing body) of such entity (regardless of whether or not at the time
stock or interests of any other class or classes of such corporation shall have
or may have voting power by reason of the happening of any contingency) is,
immediately prior to the Closing, directly or indirectly Owned by the Company or
by one or more if its Subsidiaries.
“Taxes” shall mean all
Federal, state, local and foreign income, franchise, property, sales, use,
excise and other taxes, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
“Transaction
Documents” shall mean this Agreement and the Warrants.
“Transfer Agent” has
the meaning set forth in Section 1.2(b).
“Underlying Shares”
shall mean the shares of Common Stock issued from time to time upon conversion
of the Shares and the Warrant Shares.
“Unit” shall mean (i)
one hundred (100) Shares, (ii) one hundred (100) Class F Warrants and (iii) one
hundred (100) Class G Warrants.
“Unit Price” shall
mean $18.00 per Unit.
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“Warrants” shall mean
the Class F Warrants and the Class G Warrants.
“Warrant Shares” has
the meaning set forth in the preamble, and includes any shares of Common Stock
issuable from time to time upon exercise of the Warrants.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. Purchase
and Sale of Stock.
1.1. Sale and Issuance of
Securities. (a) The Company shall sell to the
Investors and the Investors shall purchase from the Company, up to 6,000,000
Units at a price per Unit equal to the Unit Price.
(b) The
purchase price of the Units to be purchased by each Investor from the Company is
set forth on Schedule
1.1(b) hereto, subject to acceptance, in whole or in part, by the
Company.
1.2. Closing. The
closing (the “Closing”) of the
purchase and sale of the Securities hereunder shall take place no later than 15
days following date first set forth above, or such other date as agreed to by
the Company, AIGH (the “Closing
Date”). The Closing shall take place at the offices of Xxxx
& Hessen LLP, the Investors’ counsel, in New York, New York, or at such
other location as is mutually acceptable to AIGH and the Company, subject to
fulfillment of the conditions of closing set forth in the
Agreement. At the Closing:
(a) each
Investor purchasing Securities at the Closing shall deliver to the Company or
its designees by wire transfer or such other method of payment as the Company
shall approve, an amount equal to the purchase price of the Securities purchased
by such Investor hereunder, as set forth opposite such Investor’s name on the
signature pages hereof; and
(b) the
Company shall authorize its transfer agent (the “Transfer Agent”) to
arrange delivery to each Investor of one or more stock certificates registered
in the name of the Investor, or in such nominee name(s) as designated by the
Investor in writing, representing the number of Shares equal to 100 multiplied
by the number of Units purchased by the Investor; and
(c) the
Company shall issue and deliver to each Investor (i) the number of Class F
Warrants and (ii) the number of Class G Warrants, in each case equal to the
number of Shares as determined under Section 1.2(b).
1.3. Investors’ Conditions of
Closing. The obligation of the Investors to complete the
purchase of the Securities at the Closing is subject to fulfillment of the
following conditions:
(a) the
representation and warranties of the Company set forth in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and (to the extent such representations and warranties speak as of a later date)
as of such later date as though made on and as of the Closing Date, and the
Company shall have performed in all material respects all covenants and other
obligations required to be performed by it under this Agreement at or prior to
the Closing Date;
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(b) the
absence of a Material Adverse Change from the date of this Agreement up to, and
including, the Closing Date;
(c) the
Company shall have executed and delivered all other documents reasonably
requested by counsel for the Investors that are necessary to complete the
Contemplated Transactions;
(d) the
Investors shall have received a certificate signed on behalf of the Company by
the Chief Executive Officer and Secretary of the Company, in such capacities, to
the effect that all covenants and other obligations required to be performed by
the Company at or prior to the Closing Date under this Agreement shall have been
performed in all material respects (the “Closing
Certificate”); and
(e) the
Company shall have executed and delivered all other documents reasonably
requested by counsel for the Investors that are necessary to complete the
contemplated transactions.
1.3 Waiver of Conditions of
Closing by Investors. Any of the conditions to the obligation
of the Investors to complete the purchase of the Securities at the Closing that
are set forth in Section 1.3 hereof may be waived by the Investors upon the
written consent of Investors subscribing for at least fifty-one percent (51%) of
the aggregate total Shares being sold pursuant to this Agreement.
1.4. Company’s Conditions of
Closing. The obligation of the Company to complete the sale of
the Securities at the Closing is subject to fulfillment of the following
condition, which may waived by the Company:
(a) the
representation and warranties of the Investors set forth in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and (to the extent such representations and warranties speak as of a later date)
as of such later date as though made on and as of the Closing Date.
2. Representations, Warranties
and Covenants of the Company. The Company hereby represents
and warrants to, and covenants with, each of the Investors as
follows:
2.1. Corporate Organization;
Authority; Due Authorization.
(a) The
Company (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
corporate power and authority to own or lease its properties as and in the
places where such business is conducted and to carry on its business as
conducted and (iii) is duly qualified as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify, individually or
in the aggregate, would have a Material Adverse Effect.
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(b) As
of the date of this Agreement and as of the Closing, the Company (i) has the
requisite corporate power and authority to execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party and to
incur the obligations herein and therein and (ii) has been authorized by all
necessary corporate action to execute, deliver and perform this Agreement and
the other Transaction Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby (the “Contemplated
Transactions”). Each of this Agreement and the other
Transaction Documents is a valid and binding obligation of the Company,
enforceable in accordance with its terms except as limited by applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the
enforcement of creditors’ rights and the availability of equitable remedies
(regardless of whether such enforceability is considered in a proceeding at law
or equity) and except as set forth in Section 2.4.
2.2. Capitalization.
(a) The
authorized capital stock of the Company, prior to Closing shall consist of (i)
50,000,000 shares of Common Stock, no par value per share, of which 25,247,006
shares of Common Stock are outstanding, and (ii) 10,000,000 shares of Preferred
Stock, no par value per share, of which no shares are
outstanding. Immediately after the Closing, assuming sale of all the
Units, the capitalization of the Company shall be as set forth on Exhibit 4 (the “Capitalization
Table”). The Capitalization Table sets forth the (1) warrants,
options, convertible securities and other stock purchase rights outstanding on
the date hereof, the names of the holders thereof, the number of shares of
common stock issuable thereunder and the exercise or conversion price thereof,
as the case may be, and (2) warrants, options, convertible securities and other
stock purchase rights, the names of the holders thereof, the number of shares of
common stock issuable thereunder and the exercise or conversion price thereof,
as the case may be, immediately after the Closing.
(b) Except
as contemplated by this Agreement or as set forth in the Capitalization Table,
there are (i) no outstanding subscriptions, warrants, options, conversion
privileges or other rights or agreements obligating the Company to purchase or
otherwise acquire or issue any shares of capital stock of the Company (or shares
reserved for such purpose), (ii) no preemptive rights or contracts to
which the Company is a party or rights of first refusal with respect to the
issuance of additional shares of capital stock of the Company, including without
limitation the Shares and the Underlying Shares, and (iii) no commitments
or understandings (oral or written) of the Company to issue any shares,
warrants, options or other rights. None of the shares of Common Stock
are subject to any stockholders’ agreement, voting trust agreement or similar
arrangement or understanding to which the Company is a party. The
Company has no outstanding bonds, debentures, notes or other obligations the
holders of which have the right to vote (or which are convertible into or
exercisable for securities having the right to vote) with the stockholders of
the Company on any matter.
2.3. Validity of
Shares. As of the date of this Agreement and as of the
Closing, the issuance of the Shares has been duly authorized by all necessary
corporate action on the part of the Company, and, when issued to, delivered to,
and paid for by the Investors in accordance with this Agreement, the Shares will
be validly issued, fully paid and non-assessable.
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2.4. Underlying Shares; Warrant
Shares. The issuance of the Underlying Shares upon conversion
of the Shares has been duly authorized. The issuance of shares of
Common Stock upon exercise of the Warrants has not been duly
authorized. The Underlying Shares and shares issuable upon conversion
of the Shares have been, and at all times prior to such exercise will have been,
duly reserved for issuance upon such exercise and, when so issued, will be
validly issued, fully paid and non-assessable. The Warrant Shares
issuable upon exercise of the Warrants will be upon Required Stockholder
Approval and effectiveness of the Merger, duly reserved for issuance upon such
exercise and, when so issued, will be validly issued, fully paid and
non-assessable.
2.5. Private
Offering. Neither the Company nor anyone acting on its behalf
has within the last 12 months issued, sold or offered any security of the
Company (including, without limitation, any Common Stock or warrants or similar
tenor to the Warrants) to any Person under circumstances that would cause the
issuance and sale of the Securities or any other Contemplated Transaction to be
subject to the registration requirements of the Securities Act of 1933, as
amended (the “Securities
Act”). Except as contemplated by the Transaction Documents,
neither the Company nor anyone acting on its behalf will offer the Securities or
any part thereof or any similar securities for issuance or sale to, or solicit
any offer to acquire any of the same from, anyone so as to make the issuance and
sale of the Securities subject to the registration requirements of
Section 5 of the Securities Act.
2.6. Brokers and
Finders. The Company has not retained any investment banker,
broker or finder in connection with the Contemplated Transactions.
2.7. Subsidiaries. The
Company has no Subsidiaries and does not otherwise directly or indirectly
control any other business entity.
2.8. Other
Interest. The Company does not Own directly or indirectly any
interest or investment (whether equity or debt) in any corporation.
2.9. No Conflict; Required
Filings and Consents.
(a) As
of the date of this Agreement and as of the Closing, the execution, delivery and
performance of this Agreement and the other Transaction Documents by the Company
do not, and the consummation by the Company of the Contemplated Transactions
will not, (i) conflict with or violate the Certificate of Incorporation or
By-Laws of the Company, (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to the Company or by which any property or
asset of the Company is bound or affected, or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, result in the loss of a material benefit under,
or give to others any right of purchase or sale, or any right of termination,
amendment, acceleration, increased payments or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of the Company
pursuant to, any Material Agreement; except, in the case of clauses (ii) and
(iii) above, for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or delay consummation of any of the
Contemplated Transactions in any material respect or otherwise prevent the
Company from performing its obligations under this Agreement or any of the other
Transaction Documents in any material respect, and would not,
individually or in the aggregate, have a Material Adverse Effect.
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(b) Assuming
the accuracy of the representations and warranties of the Investors set forth in
Section 3 herein, the execution and delivery of this Agreement and the other
Transaction Documents by the Company do not, and the performance of this
Agreement and the other Transaction Documents and the consummation by the
Company of the Contemplated Transactions will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Body or violate any state securities or “blue sky” laws (“Blue Sky
Laws”).
2.10. Compliance. The
Company is not in conflict with, or in default or violation of (i) any law,
rule, regulation, order, judgment or decree applicable to it or by which any
property or asset of the Company is bound or affected (“Legal Requirement”)
or (ii) any Material Agreement, in each case except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have a
Material Adverse Effect. The Company has not received any written
notice or communication from any Governmental Body regarding any actual or
possible violation of, or failure to comply with, any Legal
Requirement. The Company has obtained all licenses, permits, and
other authorizations and has taken all actions required by applicable law or
governmental regulations in connection with its business as now conducted, where
the failure to obtain any such item or to take any such action would have,
individually or in the aggregate, a Material Adverse Effect. None of
the Company, or to the knowledge of the Company, any director, officer, agent,
employee or other person acting on behalf of the Company has used any corporate
funds for unlawful contributions, payments, gifts or entertainment or for the
payment of other unlawful expenses relating to political activity, or made any
direct or indirect unlawful payments to governmental or regulatory officials or
others.
2.11. SEC Documents; Financial
Statements.
(a) The
information contained in the following documents, did not, as of the date of the
applicable document, include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, as of their respective filing dates or, if amended, as so
amended (the following documents, collectively, the “SEC Documents”),
provided that the representation in this sentence shall not apply to any
misstatement or omission in any SEC Document filed prior to the date of this
Agreement which was superseded by a subsequent SEC Document filed prior to the
date of this Agreement:
(i) the
Company’s Annual Report on Form 10-K for the year ended September 30, 2008, as
amended by the Form 10-K/A filed on April 1, 2009; and
(ii) the
Company’s Quarterly Report on Form 10-Q for the quarter ended on December 31,
2008, as amended by the Form 10-Q/A filed on April 1, 2009.
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(b) The
Company has filed all forms, reports and documents required to be filed by it
with the SEC since December 31, 2007, including without limitation the SEC
Documents. As of their respective dates, the SEC Documents filed
prior to the date hereof complied as to form in all material respects with the
applicable requirements of the Securities Act, the Exchange Act, and the rules
and regulations thereunder.
(c) The
Company’s Annual Report on Form 10-K for the year ended September 30, 2008,
includes consolidated balance sheets as of September 30, 2007 and 2008 and
consolidated statements of income for the one year periods then ended
(collectively, the “Form 10-K Financial
Statements”).
(d) The
Company’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2008,
includes consolidated balance sheets as of September 30, 2008 and December 31,
2008 and consolidated statements of income for the quarters ended September 30,
2007 and 2008 (the “Form 10-Q Financial
Statements” and together with the Form 10-K Financial Statements, the
“Financial
Statements”).
2.12. Financial
Statements. Each of the Financial Statements fairly presents,
in all material respects, the financial position of the Company, or the results
of operations, retained earnings or cash flows, as the case may be, of the
Company as of the referenced date or for the periods set forth
therein (subject, in the case of unaudited statements, to normal year-end audit
adjustments which would not be material in amount or effect), in each case in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as may be noted therein and that the
unaudited statements may not contain all footnotes required by generally
accepted accounting principles. The Company does not have any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise),
including for Taxes, that would be required to be reflected on, or reserved
against in, Financial Statements, except for (i) liabilities or obligations that
were so reserved on, or reflected in (including the notes to), the Financial
Statements; and (ii) liabilities or obligations which would not, individually or
in the aggregate, have a Material Adverse Effect. There has been no
Material Adverse Change since the date of the Financial
Statements. Other than the indebtedness as set forth in the Financial
Statements, the Company has no indebtedness as of the date hereof.
2.13. Litigation. There
are no claims, actions, suits, investigations, inquiries or proceedings (“Actions”) pending
against the Company or, to the knowledge of the Company, threatened against the
Company, or any officer, director, employee or agent thereof in his or her
capacity as such, at law or in equity, or before or by any court, tribunal,
arbitrator, mediator or any federal or state commission, board, bureau, agency
or instrumentality that would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. To the
Company’s knowledge, there is no factual or legal basis for any such
Action. The Company is not a party to or subject to the provisions of
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality and there is no Action by the Company currently
pending or which the Company intends to initiate.
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2.14. Absence of Certain
Changes. Except as specifically contemplated by this Agreement
or the SEC Documents, since December 31, 2008, there has not been with respect
to the Company (i) to the Company’s knowledge, any event, occurrence, fact,
condition, change, development or effect (“Event”) that would
reasonably be expected to have a Material Adverse Effect; (ii) any declaration,
payment or setting aside for payment of any dividend or other distribution or
any redemption, purchase or other acquisition of any shares of capital stock or
securities of the Company; (iii) any return of any capital or other distribution
of assets to stockholders of the Company; (iv) any acquisition (by merger,
consolidation, acquisition of stock or assets or otherwise) of any person or
business; (v) incurrence of any indebtedness for money borrowed or incurred any
other liabilities individually in excess of $25,000 or in excess of $100,000 in
the aggregate (other than indebtedness or liabilities incurred in the ordinary
course of business, consistent with past practices and reasonable business
operations of the Company (the “Ordinary Course of
Business”)); (vi) any loans or advances to any person, other than
ordinary advances for travel and other expenses in the Ordinary Course of
Business; (vii) sale, exchange or other disposition of any material assets or
rights other than the sale of inventory in the Ordinary Course of Business;
(viii) any transactions, other than in the Ordinary Course of Business, with any
of its officers, directors, principal shareholders or employees or any person
affiliated with any of such persons; (ix) any other action or agreement or
undertaking by the Company that, if taken or done on or after the date hereof
would reasonably be expected to have a Material Adverse Effect; or (x) any
material change in its accounting principles, practices or
methods. Without limiting the foregoing, since the date of the
Balance Sheet, there has been no Material Adverse Effect affecting the Company’s
financial condition as of the date of this Agreement or results of operations
through the date of this Agreement, which would be reflected in its audited
financial statements to be prepared for and through September 30, 2009 or as a
subsequent event.
2.15. Proprietary
Assets.
(a) For
purposes of this Agreement, “Proprietary Assets”
shall mean any: (i) patent, patent application, trademark (whether registered or
unregistered), trademark application, trade name, fictitious business name,
service xxxx (whether registered or unregistered), service xxxx application,
copyright (whether registered or unregistered), copyright application, maskwork,
maskwork application, trade secret, know-how, customer list, franchise, system,
computer software, computer program, invention, design, blueprint, engineering
drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset relating to the foregoing; or
(ii) right to use or exploit any of the foregoing.
(b) The
Company, as a whole, has good, valid and marketable title to, or has a valid
right to use, all of the Proprietary Assets used in the Company’s Business free
and clear of all liens and other encumbrances to the knowledge of the Company;
and are not obligated to make any payment to any person for the use of any
Proprietary Asset. The Company has not developed jointly with any
other person any Proprietary Asset with respect to which such other person has
any rights. The Company has no knowledge that any other person has
any right, title or interest in any of the Proprietary Assets of the
Company.
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(c) The
Company has taken reasonable and customary measures and precautions to protect
and maintain the confidentiality and secrecy of all Proprietary Assets of the
Company (except Proprietary Assets whose value would be unimpaired by public
disclosure) and otherwise to maintain and protect the value of all Proprietary
Assets of the Company. Each employee, officer, consultant and
contractor (not including contractors without access to confidential information
of the Company) of the Company (each, an “Employee”) has
entered into and executed an agreement providing for (i) the assignment to the
Company of personal rights or claims to Proprietary Assets for which
such Employee’s personal rights or claims arose out of the scope of his/her
employment or retainer by the Company and (ii) the nondisclosure of confidential
information acquired by the Employee with respect to the Proprietary Assets of
the Company or an employment or consulting agreement containing
substantially similar terms. The Company has not disclosed or
delivered to any person, or permitted the disclosure or delivery to any person
of, (i) the source code, or any portion or aspect of the source code, of any
Proprietary Asset of the Company, (ii) the object code, or any portion or aspect
of the object code, of any Proprietary Asset of the Company or (iii) any patent
applications (except as required by law).
(d) To
the knowledge of the Company, (i) none of the Proprietary Assets of the
Company necessary for the conduct of their businesses infringes or conflicts
with any Proprietary Asset owned or used by any other Person, (ii) the Company
is not infringing, misappropriating or making any unlawful use of, and the
Company has not at any time infringed, misappropriated or made any unlawful use
of, or received any notice or other communication (in writing or otherwise) of
any actual, alleged, possible or potential infringement, misappropriation or
unlawful use of, any Proprietary Asset owned or used by any other person, and
(iii) no other person is infringing, misappropriating or making any unlawful use
of, and no Proprietary Asset owned or used by any other person infringes or
conflicts with, any Proprietary Asset of the Company.
(e) There
has not been any claim by any customer or other person alleging that any
Proprietary Asset of the Company (including each version thereof that has ever
been licensed or otherwise made available by the Company to any person) does not
conform in all material respects with any specification, documentation,
performance standard, representation or statement made or provided by or on
behalf of the Company, and, to the knowledge of the Company, there is no basis
for any such claim.
(f) The
Company is not knowledgeable of any Proprietary Asset owned or used by any other
person (except for any Proprietary Asset that is licensed to the Company under
any third party license or would otherwise be commercially available) necessary
to enable the Company to conduct its businesses in the manner in which such
businesses have been and are being conducted or are expected to be
conducted. The Company (i) has not licensed, or agreed to license,
any of its Proprietary Assets to any person on an exclusive, semi-exclusive or
royalty-free basis, and (ii) has not entered into any covenant not to compete or
contract limiting its ability to exploit fully any of its Proprietary Assets or
to transact business in any market or geographical area or with any
person. Without limitation on the foregoing, to the Company’s
knowledge, no officer or director, either as an individual or through an
affiliate, has any claim to own or any other rights to use any of the
Proprietary Assets.
2.16. No Adverse
Actions. There is no existing, pending or, to the knowledge of
the Company, threatened termination, cancellation, limitation, modification or
change in the business relationship of the Company, with any supplier, customer
or other Person except such as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
11
2.17. Registration
Rights. Except as provided herein or otherwise contemplated by
the Transaction Documents, the Company is not under any obligation to register
under the Securities Act any of its currently outstanding securities or any
securities issuable upon exercise or conversion of its currently outstanding
securities nor is the Company obligated to register or qualify any such
securities under any state securities or Blue Sky Laws.
2.18. Corporate
Documents. All corporate documents (as amended to date and
prior to the Closing Date), including the Certificate of Incorporation, By-Laws
and minutes of meetings and consents of the Board of Directors and shareholders
of the Company, which have been requested and previously provided to the
Investors are true, correct and complete and contain all amendments
thereto.
2.19. Disclosure. No
representation or warranty of the Company herein contains (as of the date of
this Agreement) or will contain (as of the Closing Date), as appropriate, any
untrue statement of a material fact or omits (as of the date of this Agreement)
or will omit (as of the Closing Date), as appropriate, to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were
made.
3. Representations and
Warranties of the Investors. Each Investor represents and
warrants to the Company as follows:
3.1. Authorization. Each
Investor (i) has full power and authority to execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party and to
incur the obligations herein and therein and (ii) if applicable, has been
authorized by all necessary corporate action to execute, deliver and perform
this Agreement and the other Transaction Documents and to consummate the
Contemplated Transactions. Each of this Agreement and the other
Transaction Documents is a valid and binding obligation of Investor enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting the enforcement
of creditors’ rights and the availability of equitable remedies (regardless of
whether such enforceability is considered in a proceeding at law or
equity).
3.2. Brokers and
Finders. Such Investor has not retained any investment banker,
broker or finder in connection with the Contemplated Transactions.
3.3. Securities Laws
Representations and Covenants of Investors.
(a) This
Agreement is made with each Investor in reliance upon such Investor’s
representation to the Company, which by such Investor’s execution of this
Agreement such Investor hereby confirms, that the Securities to be received by
such Investor will be acquired for investment for such Investor’s own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof such that such Investor would constitute an “underwriter” under
the Securities Act. The Investor has not granted any right to any
other person to acquire the Securities purchased by such Investor or the
Underlying Shares except as permitted by the Securities Act and Blue Sky
Laws. Notwithstanding the foregoing, this representation and warranty
shall not limit the Investor’s right to sell the Shares, Warrant Shares or the
Underlying Shares pursuant to this Agreement, or in compliance with an exemption
from registration under the Securities Act or the Investor’s right to
indemnification under this Agreement.
12
(b) Each
Investor understands and acknowledges that the offering of the Securities
pursuant to this Agreement will not be registered under the Securities Act or
qualified under any Blue Sky Laws on the grounds that the offering and sale of
the Securities are exempt from registration and qualification, respectively,
under the Securities Act and the Blue Sky Laws, and that the Company’s reliance
upon such exemption is predicated upon such Investor’s representations set forth
in this Agreement.
(c) Each
Investor covenants that, unless the Securities, the Underlying Shares or any
other shares of capital stock of the Company received in respect of the
foregoing have been registered pursuant to the Securities Act, such Investor
will not dispose of such securities unless and until such Investor shall have
notified the Company of the proposed disposition and shall have furnished the
Company with an opinion of counsel reasonably satisfactory in form and substance
to the Company and its counsel to the effect that (i) such disposition will
not require registration under the Securities Act and (ii) appropriate
action necessary for compliance with the Securities Act and any applicable
state, local or foreign law has been taken; provided, however, that an
Investor may dispose of such securities without providing the opinion referred
to above if the Company has been provided with adequate assurance, reasonably
satisfactory to the Company and its counsel, that such disposition is made in
compliance with Rule 144 under the Securities Act (or any similar or analogous
rule) and any applicable state, local or foreign law.
(d) In
connection with the investment representations made herein, each Investor
represents that (i) such Investor is able to fend for itself in the
Contemplated Transactions; (ii) such Investor has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of such Investor’s prospective investment in the Securities;
(iii) such Investor has the ability to bear the economic risks of such
Investor’s prospective investment and can afford the complete loss of such
investment; (iv) such Investor has read the SEC Filings, including without
limitation the Risk Factors set forth on the Form 10-K/A; (v) such Investor
believes it has received all the information it considers necessary or
appropriate for deciding whether to purchase the Shares; and (vi) such Investor
has had access to officers of the Company and an opportunity to ask questions of
and receive answers from such officers and has had all questions that have been
asked by such Investor satisfactorily answered by the Company.
(e) Each
Investor further represents by execution of this Agreement that such Investor
qualifies as an “accredited investor” as such term is defined under Rule 501
promulgated under the Securities Act. Any Investor that is a
corporation, a partnership, a trust or other business entity further represents
by execution of this Agreement that it has not been organized for the purpose of
purchasing the Securities.
(f) By
acceptance hereof, each Investor agrees that the Securities, the Underlying
Shares and any shares of capital stock of the Company received in respect of the
foregoing held by it may not be sold by such Investor without registration under
the Securities Act or an exemption therefrom, and therefore such Investor may be
required to hold such securities for an indeterminate period.
13
3.4. Legends. All
certificates for the Shares, the Warrant, the Underlying Shares and each
certificate representing any shares of capital stock of the Company received in
respect of the foregoing, whether by reason of a stock split or share
reclassification thereof, a stock dividend thereon or otherwise and each
certificate for any such securities issued to subsequent transferees of any such
certificate (unless otherwise permitted herein) shall bear the following
legend:
“THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT.”
In
addition, such certificates shall bear any legend that, in the opinion of the
Company’s counsel, is required under the other Transaction Documents or pursuant
to any state, local or foreign law governing the Securities and the Underlying
Shares.
3.5. Acknowledgment of
Reliance. The Investor hereby agrees and acknowledges that the Company
has been induced to enter into this Agreement and to issue and sell the Shares
hereunder, in part, based upon the representations, warranties and covenants of
the Investor contained herein.
4. Additional Covenants of the
Company.
4.1. Expenses;
Indemnification.
(a) The
Company agrees to pay on the Closing Date and save the Investors harmless
against liability for the payment of (i) any stamp or similar taxes (including
interest and penalties, if any) that may be determined to be payable in respect
of the execution and delivery of this Agreement or the other Transaction
Documents, the issue and sale of the Securities and the Underlying Shares, (ii)
the expense of preparing and issuing the Securities and the Underlying Shares,
(iii) the cost of delivering the Securities and the Underlying Shares of each
Investor to such Investor’s home office, insured to such Investor’s
satisfaction, and (iv) the costs and expenses incurred in the preparation of all
certificates and letters on behalf of the Company and of the Company’s
performance and compliance with all agreements and conditions contained herein
on its part to be performed or complied with.
14
(b) As
soon as reasonably practicable after receipt by an Investor of notice of any
Loss in respect of which the Company may be liable under Section 4.19(b), the
Investor shall give notice thereof to the Company. Each Investor may,
at its option, claim indemnity under this Section 4.1 as soon as a claim has
been threatened by a third party, regardless of whether an actual Loss has been
suffered, so long as counsel for such Investor shall in good faith determine
that such claim is not frivolous and that such Investor may be liable or
otherwise incur a Loss as a result thereof and shall give notice of such
determination to the Company. Each Investor shall permit the Company,
at the Company’s option and expense, to assume the defense of any such claim by
counsel mutually and reasonably satisfactory to the Company and the Investors
who are subject to such claim, and to settle or otherwise dispose of the same;
provided, however, that each
Investor may at all times participate in such defense at such Investor’s
expense; and provided, further, that the
Company shall not, in defense of any such claim, except with the prior written
consent of each Investor subject to such claim, (i) consent to the entry of any
judgment that does not include as an unconditional term thereof the giving by
the claimant or plaintiff in question to each Investor of a release of all
liabilities in respect of such claims, or (ii) consent to any settlement of such
claim. If the Company does not promptly assume the defense of such
claim irrespective of whether such inability is due to the inability of the
afore-described Investors and the Company to mutually agree as to the choice of
counsel, or if any such counsel is unable to represent an Investor due to a
conflict or potential conflict of interest, then an Investor may assume such
defense and be entitled to indemnification and prompt reimbursement from the
Company for its costs and expenses incurred in connection therewith, including
without limitation, reasonable attorneys’ fees and expenses. Such
fees and expenses shall be reimbursed to the Investors as soon as practicable
after submission of invoices to the Company.
4.2. Form D. As
soon as is practicable following the Closing, the Company shall prepare and file
with the SEC a Form D concerning the sale of the
Securities. Thereafter, the Company shall furnish such information
statements to the stockholders of the Company in accordance with the appropriate
SEC rules and regulations and shall take all such other actions as may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable Warrant Shares upon the conversion of all Warrants
from time to time outstanding.
4.3. Proxy Statement;
Stockholders Meeting. (a) As promptly as possible,
but in no event later than 15 business days following the Closing, the Company
shall take all action necessary to call a meeting of its stockholders (together
with any adjournments or postponements thereof, the “Stockholders
Meeting”) for the purpose of seeking the Required Stockholder Approval
for the Proposal. In connection therewith, the Company will promptly
prepare and file with the SEC proxy materials (including a proxy statement (as
amended or supplemented, the “Proxy Statement”) and
form of proxy) for use at the Stockholders Meeting and, after receiving and
promptly responding to any comments of the Commission thereon, shall promptly
mail such proxy materials to the stockholders of the Company. Each
Investor shall promptly furnish in writing to the Company such information
relating to such Investor and its investment in the Company as the Company may
reasonably request for inclusion in such proxy materials; provided that no
Investor shall be obliged to furnish any such information if there has been no
change in such Investor’s beneficial ownership (as defined under the Exchange
Act) of Common Stock since the Closing Date. The Proxy Statement
shall not, on the date the Proxy Statement (or any amendment thereof or
supplement thereto) is first mailed to stockholders or at the time of the
Stockholders Meeting, contain any statement which, at the time and in the light
of the circumstances under which it is made, is false or misleading with respect
to any material fact, or which omits to state any material fact necessary in
order to make the statements therein not false or misleading or necessary to
correct any statement in any earlier communication with respect to the
solicitation of a proxy for the Stockholders Meeting or the subject matter
thereof which has become false or misleading. If the Company should
discover at any time prior to the Stockholders Meeting any event relating to the
Company or any of its affiliates, officers or directors that is required to be
set forth in a supplement or amendment to the Proxy Statement, the Company will
promptly inform its stockholders and the Investors thereof.
15
(b) Subject
to its fiduciary obligations under applicable law (as determined in good faith
by the Company’s Board of Directors after consultation with the Company’s
outside counsel), the Company's Board of Directors shall recommend to the
Company's stockholders (and not revoke or amend such recommendation) that the
stockholders vote in favor of the Proposal and shall cause the Company to take
all commercially reasonable action (excluding the hiring of a proxy solicitation
firm of nationally recognized standing) to solicit the Required Stockholder
Approval. Whether or not the Company's Board of Directors determines
at any time after the date hereof that, due to its fiduciary duties, it must
revoke or amend its recommendation to the Company’s stockholders, the Company is
required to, and will take, in accordance with applicable law and its Articles
of Incorporation and Bylaws, all action necessary to convene the Stockholders
Meeting as promptly as practicable to consider and vote upon the approval of the
Proposal.
(c) Each
Investor agrees to use best efforts to vote all the Shares, Underlying Shares
(if any are outstanding) and other shares of Common Stock Owned by such Investor
in favor of the Proposal.
(d) Piggy-Back
Registrations. If at any time while the Securities are outstanding there
is not an effective registration statement covering all of the Securities and
the Company shall determine to prepare and file with the SEC a registration
statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 or their then equivalents relating to equity securities to be issued
solely in connection with any acquisition of any entity or business or equity
securities issuable in connection with the stock option or other employee
benefit plans, then the Company shall send to each Investor a written notice of
such determination and, if within 15 days after the date of such notice, any
Investor shall so request in writing, the Company shall include in such
registration statement all or any part of such Securities such Investor requests
to be registered; provided, however, that, the
Company shall not be required to register any Securities pursuant to this
Section 4.4 that are eligible for resale pursuant to Rule 144 or that are the
subject of a then effective registration statement.
5. Miscellaneous.
5.1. Entire Agreement; Successors
and Assigns. This Agreement (including all schedules and
exhibits thereto) constitutes the entire contract between the parties relative
to the subject matter hereof and thereof. Any previous agreement
among the parties with respect to the sale of Securities is superseded by this
Agreement. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective executors, administrators,
heirs, successors and assigns of the parties. Except as expressly
provided herein, nothing in this Agreement, expressed or implied, is intended to
confer upon any party, other than the parties hereto, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
16
5.2. Survival of Representations
and Warranties. All representations and warranties of the parties set
forth in this Agreement and the Closing Certificate shall survive the execution
and delivery of this Agreement and the Closing hereunder and shall continue in
full force and effect for twenty-four (24) months after the
Closing.
5.3. Governing Law;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the General Corporation Law of the State of Utah as
to matters within the scope thereof, and as to all other matters shall be
governed by and construed in accordance with the internal laws of the State of
New York without regard to principles of conflicts of law. Each party
hereby irrevocably consents and submits to the jurisdiction of any New York
State or United States Federal Court sitting in the State of New York, County of
New York, over any action or proceeding arising out of or relating to this
Agreement and irrevocably consents to the service of any and all process in any
such action or proceeding by registered mail addressed to such party at its
address specified on the signature page hereof. Each party waives any
objection to venue in New York and any objection to an action or proceeding in
such state and county on the basis of forum non-conveniens. Each
party waives any right to trial by jury.
5.4. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
5.5. Headings. The
headings of the sections of this Agreement are for convenience and shall not by
themselves determine the interpretation of this Agreement.
5.6. Notices. Any
notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given upon personal delivery and if a fax number has been
provided, upon delivery (with answerback confirmed), addressed to a party at its
address and the fax number, if any, shown below or at such other address and fax
number as such party may designate by three days advance notice to the other
party.
Any
notice to the Investors shall be sent to the addresses set forth on the
signature pages hereof.
Any
notice to the Company shall be sent to:
0000
Xxxxxxxxx Xx., #000
Xxxx Xxxx
Xxxx, Xxxx 00000
Attention:
Xxxxxx Xxxxxxx, Chief Executive Officer
Telephone: (000)
000-0000
Fax
number: (000) 000-0000
with a
copy to:
Xxxx
& Hessen LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
17
Attention:
Xxxxx Xxxxxx
Fax
Number: (000) 000-0000
5.7. Rights of
Transferees. Any and all rights and obligations of Investors
herein incident to the ownership of the Securities or the Underlying Shares
shall pass successively to all subsequent transferees of such securities,
provided that such transfers are made in accordance with the requirements and
restrictions governing transfer of the Securities in the Transaction Documents,
until extinguished pursuant to the terms hereof.
5.8. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be deemed prohibited or invalid under such applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
and such prohibition or invalidity shall not invalidate the remainder of such
provision or any other provision of this Agreement.
5.9. Conflicts. The
Company and each Investor (i) acknowledge that Xxxx & Hessen LLP,
counsel to the Company in the transactions contemplated in this
Agreement, has acted, and from time to time continues to act, as counsel to
AIGH Investment Partners, LLC in connection with its investments
in the Company and in unrelated matters, (ii) consent to the representation
of the Company and such other representation of AIGH, or affiliates thereof, by
Xxxx & Hessen LLP, (iii) acknowledge that partners of Xxxx & Hessen LLP
own securities of the Company constituting less than 0.1% of
outstanding stock of the Company, and (iv) waive any conflicts of interest
claim which may arise from any or all of the foregoing
5.10. Public
Statements. Neither the Company nor any Investor shall
make any public statement about the Contemplated Transactions without the prior
written consent of the other party, unless that party determines in good faith,
on the advice of legal counsel, that public disclosure is required by law, in
which case that party shall consult with the other party prior to making a
statement.
5.11. Amendments and
Waivers. Unless a particular provision or section of this
Agreement requires otherwise explicitly in a particular instance, any provision
of this Agreement may be amended and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and subscribers for or holders of fifty-one percent (51%) of the aggregate
Shares or then-outstanding Shares, respectively. Any amendment or
waiver effected in accordance with this Section 5.11 shall be binding upon each
holder of any Securities purchased under this Agreement at the time outstanding
(including the Underlying Shares), each future holder of all such Securities
(including the Underlying Shares), and the Company.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
18
SIGNATURE
PAGE
TO
SUBSCRIPTION
AGREEMENT
IF the
PURCHASER is an INDIVIDUAL, please complete the following:
IN
WITNESS WHEREOF, the undersigned has executed this Agreement this __ day of May,
2009.
Amount of
Subscription: $______________________
___________________________________
Print
Name
___________________________________
Signature
of Investor
___________________________________
Social
Security Number
___________________________________
Address
and Fax Number
___________________________________
ACCEPTED
AND AGREED:
By:______________________________________
Name:
Title:
Dated:___________________________________
SIGNATURE
PAGE
TO
SUBSCRIPTION
AGREEMENT
IF the
INTERESTS will be held as JOINT TENANTS, as TENANTS IN COMMON, or as COMMUNITY
PROPERTY, please complete the following:
IN
WITNESS WHEREOF, the undersigned has executed this Agreement this __ day of May,
2009.
Amount of
Subscription: $______________________
____________________________________
Print
Name of a Purchaser
____________________________________
Signature
of a Purchaser
____________________________________
Print
Name of Spouse or Other Purchaser
____________________________________
Signature
of Spouse or Other Purchaser
____________________________________
Social
Security Number
____________________________________
Address
____________________________________
ACCEPTED
AND AGREED:
By:______________________________________
Name:
Title:
Dated:___________________________________
SIGNATURE
PAGE
TO
SUBSCRIPTION
AGREEMENT
IF the
PURCHASER is a PARTNERSHIP, CORPORATION, TRUST or OTHER ENTITY, please complete
the following:
IN
WITNESS WHEREOF, the undersigned has executed this Agreement this __ day of May,
2009.
Amount of
Subscription: $______________________
_________________________________________
Print
Full Legal Name of Partnership,
Company,
Trust or Other Entity
By:______________________________________
(Authorized
Signatory)
Name:
Title:
Address
and Fax Number:
_________________________________________
_________________________________________
Employer
Identification Number:______________
Date and
State of Incorporation or
Organization:_____________________________
Date on
which Taxable Year Ends:____________
ACCEPTED
AND AGREED:
By:______________________________________
Name:
Title:
Dated:___________________________________
TRUST/PLAN
CERTIFICATE
[TO BE
COMPLETED IF THE SHARES ARE TO BE HELD IN THE NAME OF A TRUST, XXXXX, XXX OR
EMPLOYEE BENEFIT OR RETIREMENT PLAN]
CERTIFICATE
OF ___________________________________________
[NAME OF
TRUST/PLAN]
The
undersigned, Trustee of ______________________________ (the “Trust/Plan”) hereby
certifies as follows:
1. That
the Trust/Plan was established pursuant to a Trust/Plan Agreement dated
_______________________________.
2. That
a true and correct copy of the Trust/Plan Agreement and a true and correct copy
of all other documents relating to powers, authorities and limitations of the
Trustee(s) are attached hereto and that, as of the date hereof, the Trust/Plan
Agreement and such other documents have not been amended (except as to any
attached amendments) nor revoked and are still in full force and
effect.
3. That,
if the Trustee(s) was (were) appointed by a court, the attached certificate
evidencing the appointment of the Trustee(s), dated within 60 days of the
present date, is a true and correct copy of such certificate.
4. That,
as the Trustee(s) of the Trust/Plan, I (we) have determined that the investment
in, and purchase of, securities of BBM HOLDINGS, INC. is of benefit to the
Trust/Plan and have determined to make such investment on behalf of the
Trust/Plan.
5. That
the undersigned is/are Trustees of the Trust/Plan, which Trust/Plan is still in
existence, and that I (we) have due authority to make such investment on behalf
of the Trust/Plan and to legally bind the Trust/Plan.
IN
WITNESS WHEREOF, I (we) have executed this Certificate as the Trustee(s) of the
Trust/Plan as of the __ day of May, 2009, and declare that it is
correct.
|
By:
|
|||
|
(Name
of Trust/Plan)
|
Trustee
|
||
|
By:
|
|||
|
Trustee
|
|||
PLEASE
ATTACH A COPY OF THE TRUST/PLAN AGREEMENT AND OTHER
AUTHORIZING
DOCUMENTS.
PARTNERSHIP
CERTIFICATE
[TO BE
COMPLETED IF THE SECURITIES ARE TO BE HELD IN THE NAME OF A
PARTNERSHIP]
CERTIFICATE
OF
_________________________________________________________________________
[Partnership
Name]
The
undersigned partners of ______________________________ (the “Investing
Partnership”) hereby certify as follows:
1. The
Investing Partnership was organized under the laws of ____________________
pursuant to a partnership agreement dated _________ ___, ____ (the “Agreement”).
2. As
of the date hereof, the Agreement has not been amended (except as to any
attached amendments) or revoked and is still in full force and
effect.
3. That,
as the partners of the Investing Partnership, we have determined that the
investment in, and purchase of, securities of BBM HOLDINGS, INC. is of benefit
to the Investing Partnership and have determined to make such investment on
behalf of the Investing Partnership,
4. That
the undersigned has due authority to make such investment decision on behalf of
the partnership.
IN
WITNESS WHEREOF, we have executed this Certificate as the partners of the
Investing Partnership this __ day of May, 2009, and declare that it is
correct.
___________________________________
(Partnership
Name)
By:_________________________________
Partner
By:_________________________________
Partner
PLEASE
ATTACH A COPY OF THE AGREEMENT OF THE INVESTING PARTNERSHIP
AND ANY
AMENDMENTS THERETO.
CORPORATE
CERTIFICATE
[TO BE
COMPLETED IF THE SECURITIES ARE TO BE HELD IN THE NAME OF A
CORPORATION]
CERTIFICATE
OF
_______________________________________________________________________
[Name of
Company]
The
undersigned certifies that he/she is the secretary (assistant secretary) of
___________________________ (the “Company”), and that,
as such, he/she is authorized to execute this Certificate on behalf of the
Company, and further certifies that:
(a) At
a meeting of the duly elected Board of Directors of the Company duly called,
convened and held on ___ day of ____________, 2009, at which a quorum was
present and acting throughout, the following resolutions were duly
adopted:
“RESOLVED,
that the Company be and it hereby is, authorized and directed to make an
investment of $________________ for shares of Series B Convertible Preferred
Stock of BBM HOLDINGS, INC., a Utah corporation (“BBM”); and be it
further
“RESOLVED,
that, in payment for such, shares the president or any vice president of the
Company be, and each hereby is, authorized, empowered and directed to either (i)
issue, and deliver a check or (ii) properly endorse or transfer securities or
other assets to BBM in the amount equal to $________________; and be it
further
“RESOLVED,
that the appropriate officers of the Company be, and each hereby is, authorized,
empowered and directed to take all actions necessary or appropriate to carry out
the intent of the foregoing resolutions.”
(b) Such
resolutions have not been rescinded, amended or changed in any respect, and are
in full force and effect on the date upon which this Certificate is
signed.
(c) The
Company commenced business on ___ day of ________, ____ and was incorporated
under the laws of the State of ___________________.
(d) A
true and correct copy of the Articles of Incorporation of the Company is
attached hereto and, as of the date hereof, the Articles of Incorporation have
not been amended (except as to any attached amendments) or revoked and are still
in full force and effect.
IN
WITNESS WHEREOF, I (we) have executed this Certificate as _________________ of
the Company as of the __ day of May, 2009, and declare that it is
correct.
_________________________________________
Authorized
Signature
PLEASE
ATTACH A COPY OF THE ARTICLES OF INCORPORATION AND ANY
AMENDMENTS
THERETO.
LIMITED
LIABILITY COMPANY CERTIFICATE
[TO BE
COMPLETED IF THE SHARES ARE TO BE HELD IN THE NAME OF A LIMITED LIABILITY
COMPANY]
CERTIFICATE
OF
__________________________________________________________________________
[Limited Liability
Company Name]
The
undersigned certifies that he/she is the manager (the “Manager”) or member
(the Member”)
of ___________________________ (the “Company”), and that,
as such, he/she is authorized to execute this Certificate on behalf of the
Company, and further certifies that:
1. The
Company was organized under the laws of ____________________, and operates
pursuant to a charter filed on _________ __, ___, (the “Charter”) and an
operating agreement dated _________ ___, ____ (the “Agreement”).
2. As
of the date hereof, neither the Charter nor the Agreement has been amended
(except as to any attached amendments) or revoked and both the Charter and the
Agreement are in full force and effect.
3. The
Manager of the Company has determined that the investment in, and purchase of,
securities of BBM HOLDINGS, INC., a Utah corporation, is of benefit to the
Company and has determined to make such investment on behalf of the
Company.
4. That
the undersigned has due authority to make such investment decision on behalf of
the Company.
IN
WITNESS WHEREOF, I have executed this Certificate as the Manager of the Company
as of the __ day of May, 2009, and declare that it is correct.
____________________________________
(Limited
Liability Company Name)
By:__________________________________
Manager
PLEASE
ATTACH A COPY OF THE CHARTER AND THE OPERATING AGREEMENT OF
THE
LIMITED LIABILITY COMPANY AND ANY AMENDMENTS THERETO.
SCHEDULES
AND EXHIBITS TO THE SUBSCRIPTION AGREEMENT
|
Exhibit
1:
|
Form
of Class F Warrants
|
|
Exhibit
2:
|
Form
of Class G Warrants
|
|
Exhibit
3:
|
Form
of Certificate of Designation of Series B Stock
|
|
Exhibit
4:
|
Capitalization
Table
|
