EXHIBIT 10.63
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of November
22, 2004, is entered into by and among Ramp Corporation, a Delaware corporation
(the "Company"), and the purchasers listed on Exhibit A attached hereto (the
"Purchasers"), for the issuance and sale to the Purchasers of the Notes and Note
Payment Shares (as defined below) of the Company, in the manner, and upon the
terms, provisions and conditions set forth in this Agreement.
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Purchasers,
and Purchasers shall purchase, the Notes; and
WHEREAS, such issuance and sale will be made in reliance upon the
provisions of Section 4(2) of the United States Securities Act of 1933, as
amended, and regulations promulgated thereunder (the "Securities Act"), or upon
such other exemption from the registration requirements of the Securities Act as
may be available with respect to any or all of the purchases of the Notes to be
made hereunder.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements contained herein and other good and valuable consideration, the
receipt and legal adequacy of which is hereby acknowledged by the parties, the
Company and the Purchasers hereby agree as follows:
1. Purchase and Sale of Notes; Issuance of Shares of Common Stock.
(a) Upon the following terms and subject to the conditions
contained herein, the Company shall issue and sell to the Purchasers, and the
Purchasers shall purchase from the Company, convertible promissory notes in the
aggregate principal amount of $400,000 (the "Purchase Price"), bearing interest
at the rate of six percent (6%) per annum, in substantially the form attached
hereto as Exhibit B (the "Notes"). The outstanding principal amount of the
Notes, together with all accrued and unpaid interest, shall be due and payable
on or before the Maturity Date (as defined in the Notes) in cash; provided,
however, that, on or before the Maturity Date, the outstanding principal amount
of such Notes, plus any and all accrued but unpaid interest, shall
automatically, and without further action, convert into such other securities of
the Company issued to investor(s) in a Transaction (as defined in the Notes), on
the same terms and conditions as set forth in the Transaction (the
"Conversion"); provided, further, however, that if the Conversion occurs, the
Company shall, upon Conversion, pay to the Purchasers an additional aggregate
amount of $80,000, payable to the Purchasers in proportion to the Purchase Price
through the issuance by the Company to the Purchasers of additional securities
in a Transaction, on the same terms and conditions as set forth in the
Transaction.
(b) In consideration of and in express reliance upon the
representations, warranties, covenants, terms and conditions of this Agreement,
the Company agrees to issue and sell to the Purchasers and the Purchasers agree
to purchase the Notes. The closing under this Agreement (the "Closing") shall
take place at the offices of Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, The Chrysler
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Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 upon the satisfaction
of each of the conditions set forth in Sections 4 and 5 hereof (the "Closing
Date").
(c) On or prior to the Closing Date, each Purchaser shall fund
its portion of the Purchase Price into an escrow account maintained by the law
offices of Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP, as escrow agent (the "Escrow
Agent"). Upon satisfaction of each of the conditions set forth in Sections 4 and
5 hereof and delivery of the Purchase Price to the Escrow Agent, the Escrow
Agent shall promptly wire transfer the escrowed funds to an account designated
by the Company pursuant to its written instructions.
(d) Subject to the Company obtaining stockholder approval of
the reverse split of its shares of common stock, par value $.001 per share
("Common Stock") and the filing of an amendment to the Company's Restated
Certificate of Incorporation to effect the reverse split, as an inducement for
the purchase of the Notes by the Purchasers, the Company shall issue and deliver
to the Purchasers certificates representing the aggregate number of four hundred
and eighty thousand (480,000) post-split shares of Common Stock (the "Note
Payment Shares"). The Notes and Note Payment Shares are sometimes collectively
referred to herein as the "Securities".
2. Representations, Warranties and Covenants of the Purchasers. Each of
the Purchasers hereby makes the following representations and warranties to the
Company, and covenants for the benefit of the Company, with respect solely to
itself and not with respect to any other Purchaser:
(a) If a Purchaser is an entity, such Purchaser is a
corporation, limited liability company or partnership duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization.
(b) This Agreement has been duly authorized, validly executed
and delivered by each Purchaser and is a valid and binding agreement and
obligation of each Purchaser enforceable against such Purchaser in accordance
with its terms, subject to limitations on enforcement by general principles of
equity and by bankruptcy or other laws affecting the enforcement of creditors'
rights generally, and each Purchaser has full power and authority to execute and
deliver this Agreement and the other agreements and documents contemplated
hereby and to perform its obligations hereunder and thereunder.
(c) Each Purchaser understands that no federal, state, local
or foreign governmental body or regulatory authority has made any finding or
determination relating to the fairness of an investment in any of the Securities
and that no Federal, state, local or foreign governmental body or regulatory
authority has recommended or endorsed, or will recommend or endorse, any
investment in the Securities. Each Purchaser, in making the decision to purchase
the Securities, has relied upon independent investigation made by it and has not
relied on any information or representations made by third parties.
(d) Each Purchaser understands that the Securities are being
offered and sold to it in reliance on specific provisions of Federal and state
securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings
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of each Purchaser set forth herein for purposes of qualifying for exemptions
from registration under the Securities Act, and applicable state securities
laws.
(e) Each Purchaser is an "accredited investor" as defined
under Rule 501 of Regulation D promulgated under the Securities Act.
(f) Each Purchaser is and will be acquiring the Securities for
such Purchaser's own account, and not with a view to any resale or distribution
of the Securities in whole or in part, in violation of the Securities Act or any
applicable securities laws.
(g) The offer and sale of the Securities is intended to be
exempt from registration under the Securities Act, by virtue of Section 4(2) of
the Securities Act. Each Purchaser understands that the Securities purchased
hereunder have not been, and may never be, registered under the Securities Act
and that none of the Securities can be sold or transferred unless they are first
registered under the Securities Act and such state and other securities laws as
may be applicable or in the opinion of counsel for the Company an exemption from
registration under the Securities Act is available (and then the Securities may
be sold or transferred only in compliance with such exemption and all applicable
state and other securities laws).
3. Representations, Warranties and Covenants of the Company. The
Company represents and warrants to each Purchaser, and covenants for the benefit
of each Purchaser, as follows:
(a) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the state of Delaware, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as currently conducted, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure to
register or qualify would not have a Material Adverse Effect. For purposes of
this Agreement, "Material Adverse Effect" shall mean any effect on the business,
results of operations, prospects, assets or financial condition of the Company
that is material and adverse to the Company and its subsidiaries and affiliates,
taken as a whole, and/or any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of the Company from
entering into and performing any of its obligations under this Agreement or the
Notes in any material respect.
(b) The Notes and Note Payment Shares have been duly
authorized by all necessary corporate action and, when paid for or issued in
accordance with the terms of this Agreement, the Notes shall be validly issued
and outstanding, free and clear of all liens, encumbrances and rights of refusal
of any kind. The Note Payment Shares have been duly authorized by all necessary
corporate action and, when paid for or issued in accordance with the terms of
this Agreement, will be validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens, encumbrances and rights of refusal
of any kind and the holders shall be entitled to all rights accorded to a holder
of Common Stock.
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(c) Each of the Notes and this Agreement (the "Transaction
Documents") have been duly authorized, validly executed and delivered on behalf
of the Company and is a valid and binding agreement and obligation of the
Company enforceable against the Company in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy or
other laws affecting the enforcement of creditors' rights generally, and the
Company has full power and authority to execute and deliver the Transaction
Documents and the other agreements and documents contemplated hereby and to
perform its obligations hereunder and thereunder.
(d) The execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated by this Agreement by the
Company, will not (i) conflict with or result in a breach of or a default under
any of the terms or provisions of, (A) the Company's certificate of
incorporation or by-laws, or (B) of any material provision of any indenture,
mortgage, deed of trust or other material agreement or instrument to which the
Company is a party or by which it or any of its material properties or assets is
bound, (ii) result in a violation of any material provision of any law, statute,
rule, regulation, or any existing applicable decree, judgment or order by any
court, federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company, or any of its material
properties or assets or (iii) result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or assets of the
Company or any of its subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may be bound
or to which any of their property or any of them is subject except in the case
of clauses (i)(B) or (iii) for any such conflicts, breaches, or defaults or any
liens, charges, or encumbrances which would not have a Material Adverse Effect.
(e) The sale and issuance of the Securities in accordance with
the terms of and in reliance on the accuracy of each Purchaser's representations
and warranties set forth in this Agreement will be exempt from the registration
requirements of the Securities Act.
(f) Except for the consent of the American Stock Exchange, no
consent, approval or authorization of or designation, declaration or filing with
any governmental authority on the part of the Company is required in connection
with the valid execution and delivery of this Agreement or the offer, sale or
issuance of the Notes or the Note Payment Shares, or the consummation of any
other transaction contemplated by this Agreement.
(g) There is no action, suit, claim, investigation or
proceeding pending or, to the knowledge of the Company, threatened against the
Company which questions the validity of the Transaction Documents or the
transactions contemplated thereby or any action taken or to be taken pursuant
thereto. Except for the litigation disclosed in the Company's filings with the
Securities and Exchange Commission (collectively, the "SEC Documents"), there is
no action, suit, claim, investigation or proceeding pending or, to the knowledge
of the Company, threatened, against or involving the Company or any subsidiary,
or any of their respective properties or assets which, if adversely determined,
is reasonably likely to result in a Material Adverse Effect.
(h) The Company has complied and will comply with all
applicable federal and state securities laws in connection with the offer,
issuance and sale of the Securities hereunder. Neither the Company nor anyone
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acting on its behalf, directly or indirectly, has or will sell, offer to sell or
solicit offers to buy any of the Securities, or similar securities to, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of the
Securities under the registration provisions of the Securities Act and any other
applicable federal and state securities laws. Neither the Company nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with any of the Securities.
(i) To the Company's knowledge, neither this Agreement nor the
Transaction Documents hereto contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
herein or therein, in the light of the circumstances under which they were made
herein or therein, not misleading.
(j) The authorized capital stock of the Company and the shares
thereof issued and outstanding are set forth in the SEC Documents. All of the
outstanding shares of the Company's Common Stock have been duly and validly
authorized, and are fully paid and non-assessable. Except as set forth in this
Agreement or in the SEC Documents, as of the date hereof, no shares of the
Company's Common Stock are entitled to preemptive rights and there are no
registration rights or outstanding options, warrants, scrip, rights to subscribe
to, call or commitments of any character whatsoever relating to, or securities
or rights convertible into, any shares of capital stock of the Company. Except
as set forth in the SEC Documents, as of the date hereof, the Company is not a
party to any agreement granting registration rights to any person with respect
to any of its equity or debt securities. The Company is not a party to, and its
executive officers have no knowledge of, any agreement restricting the voting or
transfer of any shares of the capital stock of the Company. The offer and sale
of all capital stock, convertible securities, rights, warrants, or options of
the Company issued prior to the Closing complied with all applicable federal and
state securities laws, and no stockholder has a right of rescission or damages
with respect thereto which is reasonably likely to have a Material Adverse
Effect. True and correct copies of the Company's Certificate of Incorporation as
in effect on the date hereof (the "Certificate"), and the Company's Bylaws as in
effect on the date hereof (the "Bylaws") are available in the SEC Documents.
(k) So long as any Notes remain outstanding, the Company shall
take all action necessary to at all times have authorized, and reserved for the
purpose of issuance, a sufficient number of shares of Common Stock to effect any
conversion of the Notes and the issuance of Note Payment Shares.
(l) The Company has complied and will comply with all
applicable federal and state securities laws in connection with the offer,
issuance and sale of the Securities hereunder. Neither the Company nor anyone
acting on its behalf, directly or indirectly, has or will sell, offer to sell or
solicit offers to buy any of the Securities, or similar securities to, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any person, or has taken or
will take any action so as to bring the issuance and sale of any of the
Securities under the registration provisions of the Securities Act and
applicable state securities laws. Neither the Company nor any of its affiliates,
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nor any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with the offer or sale of any of the
Securities.
4. Conditions Precedent to the Obligation of the Company to Sell the
Notes. The obligation hereunder of the Company to issue and sell the Notes to
each Purchaser is subject to the satisfaction or waiver, at or before the
Closing Date, of each of the conditions set forth below. These conditions are
for the Company's sole benefit and may be waived by the Company at any time in
its sole discretion.
(a) Each Purchaser shall have executed and delivered this
Agreement.
(b) Each Purchaser shall have delivered the Purchase Price to
the Escrow Agent.
(c) Each Purchaser shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by such Purchaser at or prior to the Closing Date.
(d) The representations and warranties of each Purchaser shall
be true and correct in all material respects as of the date when made and as of
the Closing Date as though made at that time, except for representations and
warranties that are expressly made as of a particular date, which shall be true
and correct in all material respects as of such date.
(e) At the Closing Date, upon receipt of the Transaction
Documents, each Purchaser shall have delivered to the Company immediately
available funds as payment in full of the Purchase Price for the Notes and Note
Payment Shares.
5. Conditions Precedent to the Obligation of the Purchasers to purchase
the Notes. The obligation hereunder of each Purchaser to acquire and pay for the
Notes is subject to the satisfaction or waiver, at or before the Closing Date,
of each of the conditions set forth below. These conditions are for each
Purchaser's sole benefit and may be waived by each Purchaser at any time in its
sole discretion.
(a) The Company shall have executed and delivered the Notes,
this Agreement and any other Transaction Document.
(b) The Company shall have performed, satisfied and complied
in all material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by the
Company at or prior to the Closing Date.
(c) Each of the representations and warranties of the Company
shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for representations
and warranties that speak as of a particular date), which shall be true and
correct in all material respects as of such date.
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(d) No statute, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction which prohibits the
consummation of any of the transactions contemplated by this Agreement at or
prior to the Closing Date.
(e) As of the Closing Date, no action, suit or proceeding
before or by any court or governmental agency or body, domestic or foreign,
shall be pending against or affecting the Company, or any of its properties,
which questions the validity of the Agreement, the Notes, or the transactions
contemplated thereby or any action taken or to be take pursuant thereto. As of
the Closing Date, no action, suit, claim or proceeding before or by any court or
governmental agency or body, domestic or foreign, shall be pending against or
affecting the Company, or any of its properties, which, if adversely determined,
is reasonably likely to result in a Material Adverse Effect.
(f) No Material Adverse Effect shall have occurred at or
before the Closing Date.
(g) The Company shall have delivered to the Purchasers the
resolutions of the board of directors of the Company authorizing the
transactions contemplated by this Agreement.
6. Legend. Each Note and the Note Payment Shares shall be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required by applicable state securities or "blue sky"
laws): "THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER
APPLICABLE STATE SECURITIES LAWS OR RAMP CORPORATION SHALL HAVE RECEIVED AN
OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED."
The Company agrees to reissue the Notes, and the Company shall reissue
certificates representing the Note Payment Shares, without the legend set forth
above if at such time, prior to making any transfer of any such Securities, such
holder thereof shall give written notice to the Company, describing the manner
and terms of such transfer and removal as the Company may reasonably request.
Such proposed transfer will not be effected until: (a) the Company has notified
such holder that either (i) in the opinion of its counsel, the registration of
the Securities under the Securities Act is not required in connection with such
proposed transfer; or (ii) a registration statement under the Securities Act
covering such proposed disposition has been filed by the Company with the
Securities and Exchange Commission and has become effective under the Securities
Act; and (b) the Company has notified such holder that either: (i) in the
opinion of its respective counsel, the registration or qualification under the
securities or "blue sky" laws of any state is not required in connection with
such proposed disposition, or (ii) compliance with applicable state securities
or "blue sky" laws has been effected. The Company will use its best efforts to
respond to any such notice from a holder within five (5) days following its
receipt of such notice. In the case of any proposed transfer under this Section
6, the Company will use reasonable efforts to comply with any such applicable
state securities or "blue sky" laws, but shall in no event be required, in
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connection therewith, to qualify to do business in any state where it is not
then qualified or to take any action that would subject it to tax or to the
general service of process in any state where it is not then subject. The
restrictions on transfer contained in this Section 6 shall be in addition to,
and not by way of limitation of, any other restrictions on transfer contained in
any other section of this Agreement.
7. Registration Rights. The Company covenants and agrees as follows:
(a) Definitions. For purposes of this Agreement:
(i) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such registration
statement or document.
(ii) The term "Business Day" means any day except
Saturday, Sunday and any day which shall be a legal holiday or a day on which
banking institutions in the state of New York generally are authorized or
required by law or other government actions to close.
(iii) The term "Commission" means the Securities and
Exchange Commission.
(iv) The term "Effectiveness Date" means with respect
to the Registration Statement the earlier of the ninetieth (90th) day following
the Filing Date or the date which is within five (5) days of the date on which
the Commission informs the Company that the Commission (i) will not review the
Registration Statement or (ii) that the Company may request the acceleration of
the effectiveness of the Registration Statement and the Company makes such
request.
(v) The term "Filing Date" means the date that the
Company files its next registration statement with the Commission.
(vi) The term "Registrable Securities" means the Note
Payment Shares; provided, however, that Registrable Securities shall include
(but not be limited to) a number of shares of Common Stock equal to no less than
150% of the maximum number of shares of Common Stock which would be issuable
upon conversion of the Notes, assuming such conversion occurred on the Closing
Date or the Filing Date, whichever date would result in the greater number of
Registrable Securities. Such registered shares of Common Stock shall be
allocated among the Purchasers pro rata based on the total number of Registrable
Securities issued or issuable as of each date that a Registration Statement, as
amended, relating to the resale of the Registrable Securities is declared
effective by the Commission. Notwithstanding anything herein contained to the
contrary, if the actual number of shares of Common Stock issuable upon
conversion of the Notes exceeds 100% of the number of shares of Common Stock
issuable upon conversion of the Notes based upon a computation as at the Closing
Date or the Filing Date, the term "Registrable Securities" shall be deemed to
include such additional shares of Common Stock.
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(vii) "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; and
(ix) "Rule 415" means Rule 415 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.
(b) Company Registration. If the Company shall prepare and
file with the Commission a "shelf" Registration Statement, the Registration
Statement shall include and cover all Registrable Securities for an offering to
be made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form S-3 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3, in which case such registration
shall be on another appropriate form in accordance herewith). The Company shall
use its commercially reasonable efforts to cause the Registration Statement to
be declared effective under the Securities Act as promptly as possible after the
filing thereof, but in any event prior to the Effectiveness Date, and to keep
such Registration Statement continuously effective under the Securities Act
until such date as is the earlier of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold or (y) the date
on which the Registrable Securities may be sold without any restriction pursuant
to Rule 144 as determined by the counsel to the Company pursuant to a written
opinion letter, addressed to the Company's transfer agent to such effect (the
"Effectiveness Period"). If at any time and for any reason, an additional
Registration Statement is required to be filed because at such time the actual
number of shares of Common Stock into which the Notes are convertible exceeds
the number of shares of Registrable Securities remaining under the Registration
Statement, the Company shall have sixty (60) Business Days to file such
additional Registration Statement, and the Company shall use its commercially
reasonable efforts to cause such additional Registration Statement to be
declared effective by the Commission as soon as possible, but in no event later
than sixty (60) days after filing.
(c) Liquidated Damages for Failure to File Registration
Statement and Other Events. The Company and the Purchasers agree that the
Purchasers will suffer damages if the Registration Statement is not filed with
the Commission on or prior to the Filing Date and not declared effective by the
Commission on or prior to the Effectiveness Date and maintained in the manner
contemplated herein during the Effectiveness Period. The Company and the
Purchasers further agree that it would not be feasible to ascertain the extent
of such damages with precision. Accordingly, if, (A) the Registration Statement
is not filed on or prior to the Filing Date, or (B) the Registration Statement
is not declared effective by the Commission on or prior to the Effectiveness
Date (or in the event an additional Registration Statement is filed because the
actual number of shares of Common Stock into which the Notes are convertible
exceeds the number of shares of Common Stock initially registered is not filed
and declared effective with the time periods set forth herein), or (C) the
Company fails to file with the Commission a request for acceleration in
accordance with Rule 461 promulgated under the Securities Act within five (5)
Business Days of the date that the Company is notified (orally or in writing,
whichever is earlier) by the Commission that a Registration Statement will not
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be "reviewed," or is not subject to further review, or (D) the Registration
Statement is filed with and declared effective by the Commission but thereafter
ceases to be effective as to all Registrable Securities at any time prior to the
expiration of the Effectiveness Period, without being succeeded immediately by a
subsequent Registration Statement filed with and declared effective by the
Commission in accordance herewith or (E) trading in the Common Stock shall be
suspended or if the Common Stock is delisted from the OTC Bulletin Board for any
reason for more than three Business Days in the aggregate without subsequent
listing on another securities exchange, quotation system or market (any such
failure or breach being referred to as an "Event," and for purposes of clauses
(A) and (B) the date on which such Event occurs, or for purposes of clause (C)
the date on which such five Business Day period is exceeded, or for purposes of
clause (D) after more than fifteen Business Days, or for purposes of clause (E)
the date on which such three Business Day period is exceeded, being referred to
as "Event Date"), the Company shall pay an amount as liquidated damages to each
Purchaser, in cash, equal to one percent (1.0%) for each calendar month or
portion thereof of the Purcasher's initial investment in the Notes from the
Event Date until the applicable Event is cured.
8. Obligations of the Company. Whenever required under Section 7 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use commercially
reasonable efforts to cause such registration statement to become effective and
keep such registration statement effective until the earlier of such time as all
of such securities have been disposed of in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration
statement or after such time at which all Registrable Securities held by such
holder can be sold in any three-month period without registration in compliance
with Rule 144(k) of the Securities Act;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement; and
(c) Notify each holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
9. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 7 with respect
to the Registrable Securities of any selling holder that such holder shall
furnish to the Company such information (as determined by the Company) regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as shall be required to effect the registration
of such holder's Registrable Securities.
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10. Expenses of Registration. All expenses (other than underwriting
discounts and commissions) incurred in connection with registrations, filings or
qualifications pursuant to Section 7 or Section 8, including, without
limitation, all registration, filing and qualification fees, printers' and
accounting fees, and fees and disbursements of counsel for the Company shall be
borne by the Company.
11. Termination of Registration Rights. No holder shall be entitled to
exercise any right provided for in this Section 7 after such time at which all
Registrable Securities held by such holder can be sold without restriction in
compliance with Rule 144(k) of the Securities Act.
12. Fees and Expenses. Each party shall pay the fees and expenses of
its advisors, 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.
13. Indemnification.
(a) The Company hereby agrees to indemnify and hold harmless
each Purchaser and its officers, directors, shareholders, employees, agents and
attorneys against any and all losses, claims, damages, liabilities and
reasonable expenses (collectively "Claims") incurred by each such person in
connection with defending or investigating any such Claims, whether or not
resulting in any liability to such person, to which any such indemnified party
may become subject, insofar as such Claims arise out of or are based upon any
breach of any representation or warranty or agreement made by the Company in
this Agreement.
(b) Each Purchaser severally but not jointly hereby agrees to
indemnify and hold harmless the Company and its officers, directors,
shareholders, employees, agents and attorneys against any and all losses,
claims, damages, liabilities and expenses incurred by each such person in
connection with defending or investigating any such claims or liabilities,
whether or not resulting in any liability to such person, to which any such
indemnified party may become subject under the Securities Act, or under any
other statute, at common law or otherwise, insofar as such Claims arise out of
or are based upon any breach of any representation, warranty or agreement made
by a Purchaser in this Agreement.
14. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of New York
without giving effect to the rules governing the conflicts of laws. Each of the
parties consents to the exclusive jurisdiction of the federal courts whose
districts encompass any part of the County of New York located in the City of
New York in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including any
objection based on forum non conveniens, to the bringing of any such proceeding
in such jurisdictions. Each party waives its right to a trial by jury. Each
party to this Agreement irrevocably consents to the service of process in any
such proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to such party at its address set forth herein. Nothing
herein shall affect the right of any party to serve process in any other manner
permitted by law.
15. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, express overnight
courier, registered first class mail, or telecopier (provided that any notice
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sent by telecopier shall be confirmed by other means pursuant to this Section
15), initially to the address set forth below, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section.
(a) if to the Company:
Ramp Corporation
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxxx, Chief Executive Officer
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Jenkens & Xxxxxxxxx Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx Xxxxxxxx, Esq.
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) if to the Purchasers:
At the address of such Purchaser set forth
on Exhibit A to this Agreement.
with a copy to:
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; or when actually received or refused if sent by
other means.
16. Entire Agreement. This Agreement, the Notes and any other
Transaction Document constitute the entire understanding and agreement of the
parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous oral or written proposals or agreements relating thereto
all of which are merged herein. This Agreement may not be amended or any
provision hereof waived in whole or in part, except by a written amendment
signed by both of the parties.
17. Counterparts. This Agreement may be executed by facsimile signature
and in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement was duly executed on the date first
written above.
RAMP CORPORATION
By:____________________________
Name:
Title:
PLATINUM PARTNERS VALUE
ARBITRAGE FUND L.P.
By:____________________________
Name:
Title:
BRIARWOOD INVESTMENTS
By:____________________________
Name:
Title:
DESIGN INVESTMENTS LTD.
By:____________________________
Name:
Title:
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EXHIBIT A
PURCHASERS
Names and Addresses Dollar Amount Aggregate No. of
of Purchasers of Investment Note Payment Shares
---------------------------------- ------------- -------------------
Platinum Partners Value Arbitrage
Fund L.P. $250,000 300,000
Briarwood Investments
$100,000 120,000
Design Investments, Ltd.
$ 50,000 60,000
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EXHIBIT B
FORM OF NOTE
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