SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
This
Securities Purchase Agreement (this “Agreement”) is dated as of
February 24, 2010, among SinoHub, Inc., a Delaware corporation (collectively
with its predecessors, the “Company”), and the investors
listed on the Schedule of Investors attached hereto as Annex A and
identified on the signature pages hereto (each, an “Investor” and collectively,
the “Investors”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act (as defined below) and Rule 506 promulgated
thereunder, the Company desires to issue and sell to each Investor, and each
Investor, severally and not jointly, desires to purchase from the Company
certain securities of the Company, as more fully described in this
Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and the Investors agree as
follows:
ARTICLE
1.
DEFINITIONS
1.1. Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms shall have the meanings indicated in this
Section 1.1:
“Action” means any action,
claim, suit, inquiry, notice of violation, proceeding (including any partial
proceeding such as a deposition) or investigation pending or threatened in
writing against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or
administrative agency, regulatory authority (federal, state, county, local or
foreign), stock market, stock exchange or trading facility.
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used
in and construed under Rule 144.
“Business Day” means any day
except Saturday, Sunday and any day which is a federal legal holiday or a day on
which banking institutions in the State of New York are authorized or required
by law or other governmental action to close.
“Closing” means the
closing of the purchase and sale of the Shares pursuant to Article
2.
“Closing Date” means the
Business Day on which all of the conditions set forth in Sections 5.1 and 5.2
hereof are satisfied, or such other date as the parties may agree.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means the
common stock of the Company, par value $0.001 per share, and any securities into
which such common stock may hereafter be reclassified.
“Common Stock Equivalents”
means any securities of the Company or any Subsidiary which entitle the holder
thereof to acquire Common Stock at any time, including without limitation, any
debt, preferred stock, rights, options, warrants or other instrument that is at
any time convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock or other securities that entitle the holder to
receive, directly or indirectly, Common Stock.
“Company Counsel” means
Seyfarth Xxxx LLP.
“Company Deliverables” has the
meaning set forth in Section 2.2(a).
“Delivery Date” means three
(3) Trading Days after the date on which the Investor shall have requested
removal of the restricted legends from certificates representing Shares or
Warrant Shares and shall have delivered to the Company’s transfer agent those
items required by Section 4.1(c) hereunder.
“Disclosure Materials” has the
meaning set forth in Section 3.1(g).
“Effective Date” means the
date that the Registration Statement required by Section 2(a) of the
Registration Rights Agreement is first declared effective by the
Commission.
“Evaluation Date” has
the meaning set forth in Section 3.1(r).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“GAAP” means U.S. generally
accepted accounting principles.
“Intellectual Property Rights”
has the meaning set forth in Section 3.1(o).
“Investment Amount”
means, with respect to each Investor, the Investment Amount indicated on such
Investor’s signature page to this Agreement.
“Investor Deliverables” has
the meaning set forth in Section 2.2(b).
“Investor Party” has the
meaning set forth in Section 4.6.
“Lien” means any lien, charge,
encumbrance, security interest, right of first refusal or other restrictions of
any kind, including any restriction on use, voting, transfer, receipt of income,
or exercise of any other attribute of ownership.
“Material Adverse Effect”
means any result, occurrence, fact, change, event or effect (whether or not
constituting a breach of a representation, warranty or covenant set forth in
this Agreement) that, individually or in the aggregate with any such other
results, occurrences, facts, changes, events or effects, (i) would have or could
reasonably be expected to have a material adverse effect on the historical or
near-term or long-term projected business, operations, assets, liabilities,
condition (financial or otherwise) or results of operations of the Company and
the Subsidiaries, taken as a whole, (ii) would or could reasonably be expected
to prevent or materially impair or delay the ability of the Company to
consummate the transactions contemplated by this Agreement or perform its duties
under this Agreement or any of the other Transaction Documents, or (iii) would
or could reasonably be expected to be materially adverse to the ability of the
Company or any Subsidiary to operate its business immediately after the Closing
substantially in the manner as such business was operated immediately prior to
the Closing.
“Money Laundering Laws” has the
meaning set forth in Section 3.1(z).
“OFAC” has the meaning set
forth in Section 3.1(y).
“Outside Date” means March 5,
2010.
"Per Share Purchase Price"
equals $3.00.
“Person” means an individual
or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an
agency or subdivision thereof) or other entity of any kind.
“Placement Agent” means
Canaccord Xxxxx Inc.
“PRC” means the People’s
Republic of China, not including Taiwan, Hong Kong and Macau.
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“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of the date
of this Agreement, among the Company and the Investors.
“Registration Statement” means
a registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Investors of any of the Shares
or any of the Warrant Shares.
“Rule 144” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“SEC Reports” has the meaning
set forth in Section 3.1(g).
“Securities Act” means
the Securities Act of 1933, as amended.
“Share Delivery Date” has the
meaning set forth in Section 4.1(c).
“Shares” means the shares of
Common Stock issued or issuable to the Investors pursuant to this
Agreement.
“Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.
“Subsidiary” of a specified
Person is an Affiliate controlled by such Person directly, or indirectly through
one or more intermediaries.
“Trading Day” means (i) a day
on which the Common Stock is traded on a Trading Market (other than the OTC
Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market
(other than the OTC Bulletin Board), a day on which the Common Stock is traded
in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii)
if the Common Stock is not quoted on any Trading Market, a day on which the
Common Stock is quoted in the over-the-counter market as reported by the Pink
Sheets LLC (or any similar organization or agency succeeding to its functions of
reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
“Trading Market” means
whichever of the NYSE AMEX Equities, the Nasdaq Capital Market, the Nasdaq
Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or
the OTC Bulletin Board (or any successors to any of the foregoing) on which the
Common Stock is listed or quoted for trading on the date in
question.
“Transaction Documents” means
this Agreement, the Registration Rights Agreement, the Warrants, and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.
“Warrants” means those warrants
to purchase shares of Common Stock until the fifth anniversary of the Closing
Date, at an exercise price of $3.25 per share, subject to
adjustment.
“Warrant Shares” means the
shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
2.
PURCHASE
AND SALE
2.1. Closing. Subject
to the terms and conditions set forth in this Agreement, at the Closing the
Company shall issue and sell to each Investor, and each Investor shall,
severally and not jointly, purchase from the Company, the Shares representing
such Investor’s Investment Amount. The Closing shall take place at
the offices of Company Counsel on the Closing Date or at such other location or
time as the parties may agree.
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2.2. Closing
Deliveries. (a) At the Closing, the Company shall deliver
or cause to be delivered to each Investor the following (the “Company
Deliverables”):
(i) a
certificate evidencing a number of Shares equal to such Investor’s Investment
Amount divided by the Per Share Purchase Price, registered in the name of such
Investor, which obligation may be satisfied by delivery of a copy of the
irrevocable instructions to the Company’s transfer agent instructing the
transfer agent to deliver to the addresses directed by the Investors
Shares equal to such Investor’s Investment Amount divided by the Per Share
Purchase Price, registered in the name of such Investor;
(ii) a
warrant certificate registered in the name of such Investor evidencing a
Warrant exercisable for 50% of the Shares issued under 2.2(i);
and.
(iii) the
items described in Sections 5.1(f) and 5.1(i) hereunder if not delivered prior
to the Closing.
(b) By
the Closing, each Investor shall deliver or cause to be delivered the agreements
specified in Section 5.2(d), each duly signed by such Investor (collectively,
the “Investor
Deliverables”).
(c) At
the Closing, each Investor shall cause to be delivered its Investment Amount, in
United States dollars and in immediately available funds, by wire transfer to an
account designated in writing by the Company for such purpose.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES
3.1. Representations and
Warranties of the Company. The Company hereby makes the
following representations and warranties to each Investor:
(a) Subsidiaries. The
Company has no direct or indirect Subsidiaries other than as specified in the
SEC Reports. The Company owns, directly or indirectly, all of the
capital stock of each Subsidiary free and clear of any and all Liens, and all
the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights. There are no outstanding conversion or other rights,
options, warrants or agreements granted or issued by or binding upon any
Subsidiary for the purchase or acquisition of any shares of capital stock of any
Subsidiary or any other securities convertible into, exchangeable for or
evidencing the rights to subscribe for any shares of such capital
stock. Neither the Company nor any Subsidiary is subject to any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of the capital stock of any Subsidiary or any convertible
securities, rights, warrants or options of the type described in the preceding
sentence. Neither the Company nor any Subsidiary is party to, nor has
any knowledge of, any agreement restricting the voting or transfer of any shares
of the capital stock of any Subsidiary.
(b) Organization and
Qualification. The Company and each Subsidiary are duly
incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation of
any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents. The Company and each Subsidiary are duly qualified to
conduct its respective businesses and are in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may
be, could not, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect.
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(c) Authorization;
Enforcement. The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
thereunder, and to issue and sell the Shares and the Warrants. The
execution and delivery of each of the Transaction Documents by the Company and
the consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no further
action is required by the Company, any Subsidiary, the Board of Directors of the
Company, or the Company’s stockholders in connection therewith. Each
Transaction Document has been (or upon delivery will have been) duly executed by
the Company and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable principles of general
application.
(d) No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse
Effect.
(e) Filings, Consents and
Approvals. Neither the Company nor any Subsidiary is required
to obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any United States or PRC court or other
federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filing with the Commission of one or
more Registration Statements in accordance with the requirements of the
Registration Rights Agreement, (ii) filings required by state securities laws,
(iii) the filing of a Notice of Sale of Securities on Form D with the Commission
under Regulation D of the Securities Act, (iv) the filings required in
accordance with Section 4.4 hereof and (v) those that have been made or obtained
prior to the date of this Agreement.
(f) Issuance of the
Shares. The Shares and Warrant Shares have been duly
authorized and, when issued and paid for in accordance with the Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens. The Warrants have been duly authorized for
issuance. The Company has reserved from its duly authorized capital
stock the shares of Common Stock issuable pursuant to this Agreement in order to
issue the Shares and Warrant Shares.
(g) SEC Reports; Financial
Statements. The Company has filed all reports required to be
filed by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the twelve months preceding the date hereof
(or such shorter period as the Company was required by law to file such reports)
(the foregoing materials filed during such period being collectively referred to
herein as the “SEC
Reports” and, together with the Schedules to this Agreement (if any), the
“Disclosure Materials”)
on a timely basis or has timely filed a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with GAAP applied on a consistent basis during the periods involved, except as
may be otherwise specified in such financial statements or the notes thereto,
and fairly present in all material respects the financial position of the
Company and its consolidated Subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to year-end audit adjustments.
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(h) Press
Releases. The press releases disseminated by the Company
during the twelve months preceding the date of this Agreement taken as a whole
do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made and
when made, not misleading.
(i) Material
Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
the SEC Reports, (i) there has been no event, occurrence or development that has
had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) neither the Company nor any Subsidiary has incurred any liabilities
(direct, indirect, contingent, or otherwise) other than (A) trade payables,
accrued expenses and other liabilities incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be
reflected in the Company’s financial statements pursuant to GAAP or required to
be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock, and (v) the Company has not
issued any equity securities to any Company or Subsidiary officer, director or
Affiliate, except pursuant to existing Company stock option plans.
(j) Litigation. There
is no Action which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares or (ii) except
as specifically disclosed in the SEC Reports, could, if there were an
unfavorable decision, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect. Neither the Company
nor any Subsidiary, nor any director or officer thereof (in his or her capacity
as such), is or has been the subject of any Action involving a claim of
violation of or liability under federal or state securities laws or a claim of
breach of fiduciary duty, except as specifically disclosed in the SEC
Reports. There has not been, and to the knowledge of the Company,
there is not pending any investigation by the Commission involving the Company
or any current or former director or officer of the Company (in his or her
capacity as such). The Commission has not issued any stop order or
other order suspending the effectiveness of any registration statement filed by
the Company or any Subsidiary under the Exchange Act or the Securities
Act.
(k) Labor
Relations. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees of
the Company or any Subsidiary.
(l) Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect. The Company is in compliance with all effective
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and
regulations thereunder, that are applicable to it, except where such
noncompliance could not have or reasonably be expected to result in a Material
Adverse Effect.
(m) Regulatory
Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate United States
and PRC federal, state, local or foreign regulatory authorities necessary to
conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
permits.
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(n) Title to
Assets. The Company and the Subsidiaries have valid land use
rights for all of all real estate owned by the Company or the
Subsidiaries, respectively, if any, and good and marketable leasehold estates to
all real estate leased by the Company or the Subsidiaries, respectively, and
good and marketable title in all personal property owned by them, in each case
free and clear of all Liens, except for Liens as do not materially affect the
value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries. Any
real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases of
which the Company and the Subsidiaries are in compliance, except as could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.
(o) Patents and
Trademarks. Neither the Company nor any of its Subsidiaries
has any knowledge, nor have any of them received a written or oral notice, that
its patents, patent applications, trademarks, trademark applications, service
marks, trade names, copyrights, licenses and other similar rights that the
Company and its Subsidiaries owns, uses, or has the rights to use (collectively,
the “Intellectual Property
Rights”), violates or infringes upon the rights of any
Person. The Company and its Subsidiaries own or possess all rights to
use, option and/or license, as the case may be, all Intellectual Property Rights
necessary for the conduct of their respective businesses as currently being
conducted, except where the failure to own or possess such rights could not
reasonably be expected to result in a Material Adverse Effect. To the
knowledge of the Company and its Subsidiaries, no former or current employee, no
former or current consultant, and no third-party joint developer of the Company
or its Subsidiaries has any Intellectual Property Rights made, developed,
conceived, created or written by the aforesaid employee, consultant or
third-party joint developer during the period of his or her retention by, or
joint venture with, such Company or Subsidiary which can be asserted against any
of the Company or any such Subsidiary.
(p) Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged. The Company has no reason to believe that it will not be
able to renew its and the Subsidiaries’ existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business on terms consistent with market for the
Company’s and such Subsidiaries’ respective lines of business.
(q) Transactions With Affiliates
and Employees. Except as set forth in the SEC Reports, none of
the officers or directors of the Company and, to the knowledge of the Company,
none of the employees of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner.
(r)
Solvency. Based
on the financial condition of the Company as of the Closing Date (and assuming
that the Closing shall have occurred), (i) the Company’s fair saleable value of
its assets exceeds the amount that will be required to be paid on or in respect
of the Company’s existing debts and other liabilities (including known
contingent liabilities) as they mature, (ii) the Company’s assets do not
constitute unreasonably small capital to carry on its business for the 12-month
period following Closing as now conducted and as proposed to be conducted
including its capital needs taking into account the particular capital
requirements of the business conducted by the Company, and projected capital
requirements and capital availability thereof, and (iii) the current cash flow
of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its debt
when such amounts are required to be paid.
(s) Certain
Fees. The Investors shall have no obligation with respect to
any fees or with respect to any claims (other than such fees or commissions owed
by an Investor pursuant to written agreements executed by such Investor which
fees or commissions shall be the sole responsibility of such Investor) made by
or on behalf of any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other Person for brokerage or finder’s fees or
commissions that may be due in connection with the transactions contemplated by
this Agreement.
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(t)
Certain Registration
Matters. Assuming the accuracy of the Investors’ representations and
warranties set forth in Section 3.2(b)-(e), no registration under the Securities
Act is required for the offer and sale of the Shares, the Warrants, or the
Warrant Shares by the Company to the Investors under the Transaction
Documents. The Company is eligible to register its Common Stock for
resale by the Investors under Forms S-1 and S-3 promulgated under the Securities
Act. The Company has not granted or agreed to grant to any Person any
rights (including “piggy-back” registration rights) to have any securities of
the Company registered with the Commission or any other governmental authority
that have not been satisfied.
(u) Listing and Maintenance
Requirements. Except as specified in the SEC Reports, the
Company has not, in the two years preceding the date hereof, received notice
from any Trading Market to the effect that the Company is not in compliance with
the listing or maintenance requirements thereof. The Company is, and
has no reason to believe that it will not in the foreseeable future continue to
be, in compliance with the listing and maintenance requirements for continued
listing of the Common Stock on the Trading Market on which the Common Stock is
currently listed or quoted. The issuance and sale of the Shares under
the Transaction Documents does not contravene the rules and regulations of the
Trading Market on which the Common Stock is currently listed or quoted, and no
approval of the shareholders of the Company thereunder is required for the
Company to issue and deliver to the Investors the Shares contemplated by
Transaction Documents.
(v)
Investment
Company. The Company is not, and is not an Affiliate of, and
immediately following the Closing will not have become, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
(w) No Additional
Agreements. The Company does not have any agreement or
understanding with any Investor with respect to the transactions contemplated by
the Transaction Documents other than as specified in the Transaction
Documents.
(x) Foreign Corrupt Practices
Act. Neither the Company nor any Subsidiary, nor to the
knowledge of the Company, any agent or other person acting on behalf of any of
the Company or any Subsidiary, has, directly or indirectly, (i) used any funds,
or will use any proceeds from the sale of the Shares, for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company or any Subsidiary (or made
by any Person acting on their behalf of which the Company is aware) which is in
violation of law, or (iv) has violated the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder.
(y)
OFAC. Neither the
Company nor any Subsidiary nor, to the knowledge of the Company, any director,
officer, agent, employee, Affiliate or Person acting on behalf of the Company or
any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the sale of the Shares, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint
venture partner or other Person or entity, towards any sales or operations in
Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or for
the purpose of financing the activities of any Person currently subject to any
U.S. sanctions administered by OFAC.
(z)
Money Laundering
Laws. The operations of each of the Company and any Subsidiary are and
have been conducted at all times in compliance with the money laundering
statutes of applicable jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or
enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company and/or any Subsidiary
with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company, threatened.
8
(aa) Executive
Officers. No executive officer (as defined in Rule 501(f) of
the Securities Act) of the Company or any Subsidiary has notified the Company or
such Subsidiary that such officer intends to leave the Company or such
Subsidiary or otherwise terminate such officer’s employment with the Company or
such Subsidiary. No executive officer of the Company or any
Subsidiary, to the knowledge of the Company or such Subsidiary, is in violation
of any material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant.
(bb) No Undisclosed Events or
Circumstances. No event or circumstance has occurred or exists
with respect to the Company or its Subsidiaries or their respective businesses,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or
disclosed.
(cc) Disclosure. All of the disclosure furnished by or
on behalf of the Company to the Investors regarding the Company, its business
and the transactions contemplated hereby, including the disclosure schedules to
this Agreement, is true and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. Neither the Company
nor any other Person acting on its behalf has provided any Investor or its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Investor shall have
executed a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Investor
shall be relying on the foregoing representations in effecting transactions in
securities of the Company.
3.2. Representations and
Warranties of the Investors. Each Investor hereby, for itself
and for no other Investor, represents and warrants to the Company as
follows:
(a) Organization;
Authority. Such Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite corporate or partnership power and authority to
enter into and to consummate the transactions contemplated by the applicable
Transaction Documents and otherwise to carry out its obligations thereunder. The
execution, delivery and performance by such Investor of the transactions
contemplated by this Agreement has been duly authorized by all necessary
corporate or, if such Investor is not a corporation, such partnership, limited
liability company or other applicable like action, on the part of such
Investor. Each of this Agreement and the Registration Rights
Agreement has been duly executed by such Investor, and when delivered by such
Investor in accordance with the terms hereof, will constitute the valid and
legally binding obligation of such Investor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general
application.
(b) Investment
Intent. Such Investor is acquiring the Shares and Warrants as
principal for its own account and not with a view to or for distributing or
reselling such Shares, Warrants or Warrant Shares or any part thereof, without
prejudice, however, to such Investor’s right at all times to sell or otherwise
dispose of all or any part of such Shares or Warrant Shares in compliance with
applicable federal and state securities laws. Such Investor is
acquiring the Shares and Warrants hereunder in the ordinary course of its
business. Such Investor does not have any agreement or understanding, directly
or indirectly, with any Person to distribute any of the Shares or Warrant
Shares.
(c) Investor
Status. At the time such Investor was offered the Shares and
Warrants, it was, and at the date hereof it is, an “accredited investor” as
defined in Rule 501(a) under the Securities Act. Such Investor is not
a registered broker-dealer under Section 15 of the Exchange Act.
(d) General
Solicitation. Such Investor is not purchasing the Shares and
Warrants as a result of any advertisement, article, notice or other
communication regarding the Shares published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
9
(e) Access to
Information. Such Investor acknowledges that it has reviewed
the Disclosure Materials and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Shares and the merits and risks of investing in the Shares; (ii)
access to information about the Company and the Subsidiaries and their
respective financial condition, results of operations, business, properties,
management and prospects sufficient to enable it to evaluate its investment; and
(iii) the opportunity to obtain such additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
investment. Neither such inquiries nor any other investigation
conducted by or on behalf of such Investor or its representatives or counsel
shall modify, amend or affect such Investor’s right to rely on the truth,
accuracy and completeness of the Disclosure Materials and the Company’s
representations and warranties contained in the Transaction
Documents.
(f) Certain Trading
Activities. Other than consummating the transactions
contemplated hereunder, such Investor has not directly or indirectly, nor has
any Person acting on behalf of or pursuant to any understanding with such
Investor, executed any purchases or sales, including Short Sales, of the
securities of the Company during the period commencing as of the time that such
Investor first received a term sheet (written or oral) from the Company or any
other Person representing the Company setting forth the material terms of the
transactions contemplated hereunder and ending immediately prior to the
execution hereof. Notwithstanding the foregoing, in the case of a Investor that
is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Investor’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Investor’s assets, the representation set forth
above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Securities
covered by this Agreement. Such Investor (not to include Affiliates over which
Investor does not exercise investment discretion) covenants that neither it nor
any Person acting on its behalf or pursuant to any understanding with it will
engage in any transactions in the securities of the Company (including Short
Sales) prior to the time that the transactions contemplated by this Agreement
are publicly disclosed.
(g) Independent Investment
Decision. Except as may be disclosed in any filings with the
Commission by the Investors under Section 13 and/or Section 16 of the Exchange
Act, no Investor has agreed to act with any other Investor for the purpose of
acquiring, holding, voting or disposing of the Shares or the Warrant Shares for
purposes of Section 13(d) under the Exchange Act, and each Investor is acting
independently with respect to its investment in the Shares and the Warrant
Shares. Such Investor has independently evaluated the merits of its
decision to purchase Shares pursuant to the Transaction Documents, and such
Investor confirms that it has not relied on the advice of any other Investor’s
business and/or legal counsel in making such decision. Such Investor
has not relied on the business or legal advice of the Placement Agent or any of
its agents, counsel or Affiliates in making its investment decision hereunder,
and confirms that none of such Persons has made any representations or
warranties to such Investor in connection with the transactions contemplated by
the Transaction Documents.
ARTICLE
4.
OTHER
AGREEMENTS OF THE PARTIES
4.1. (a) Shares,
Warrants and Warrant Shares may only be disposed of in compliance with state and
federal securities laws. In connection with any transfer of the
Shares and Warrant Shares other than pursuant to an effective registration
statement, to the Company, to an Affiliate of an Investor or in connection with
a pledge as contemplated in Section 4.1(b), the Company may require the
transferor thereof to provide to the Company an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Shares under the Securities Act.
(b) Certificates
evidencing the Shares and Warrant Shares will contain the following legend,
until such time as they are not required under Section 4.1(c):
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY.
10
The
Company acknowledges and agrees that an Investor may from time to time pledge,
and/or grant a security interest in some or all of the Shares pursuant to a bona
fide margin agreement in connection with a bona fide margin account and, if
required under the terms of such agreement or account, such Investor may
transfer pledged or secured Shares to the pledgees or secured
parties. Such a pledge or transfer would not be subject to approval
or consent of the Company and no legal opinion of legal counsel to the pledgee,
secured party or pledgor shall be required in connection with the pledge, but
such legal opinion may be required in connection with a subsequent transfer
following default by the Investor transferee of the pledge. No notice
shall be required of such pledge. At the appropriate Investor’s
expense, the Company will execute and deliver such reasonable documentation as a
pledgee or secured party of Shares may reasonably request in connection with a
pledge or transfer of the Shares including the preparation and filing of any
required prospectus supplement under Rule 424(b)(3) of the Securities Act or
other applicable provision of the Securities Act to appropriately amend the list
of selling stockholders thereunder. Except as otherwise provided in
Section 4.1(c), any Shares subject to a pledge or security interest as
contemplated by this Section 4.1(b) shall continue to bear the legend set forth
in this Section 4.1(b) and be subject to the restrictions on transfer set forth
in Section 4.1(a).
(c) Certificates
evidencing Shares and Warrant Shares shall not contain any legend (including the
legend set forth in Section 4.1(b)): (i) while a registration statement
(including the Registration Statement) covering the resale of such Shares and
Warrant Shares is effective under the Securities Act, (ii) following a sale or
transfer of such Shares or Warrant Shares pursuant to Rule 144 (assuming the
transferee is not an Affiliate of the Company), or (iii) while such Shares and
Warrant Shares are eligible for sale without volume limitations pursuant to Rule
144. If an Investor shall make a sale or transfer of Shares or
Warrant Shares either (x) pursuant to Rule 144 or (y) pursuant to a registration
statement and in each case shall have delivered to the Company or the Company’s
transfer agent the certificate representing Shares or Warrant Shares containing
a restrictive legend which are the subject of such sale or transfer and a
representation letter in customary form (the date of such sale or transfer
and share delivery being the “Share Delivery Date”), then
the Company shall deliver or cause to be delivered to such Investor a
certificate representing such Shares or Warrant Shares that is free from all
restrictive or other legends by the third Trading Day following the Share
Delivery Date. Certificates for Shares or Warrant Shares subject to
legend removal hereunder shall be transmitted by the Transfer Agent to the
Purchaser by crediting the account of the Purchaser’s broker with the Depository
Trust Company System as directed by such Purchaser. The Company shall
bear all transfer agent fees with respect to the removal of the legends and the
issuance of certificates free of such legends.
(d) In
addition to any other rights available to the Investor, if the Company fails to
cause its transfer agent to transmit to the Investor a certificate or
certificates representing Shares or Warrant Shares requested by the Investor
pursuant to Section 4.1(c) hereof (“Requested Shares”) before the
Delivery Date, and if after such date the Investor is required by its broker to
purchase (in an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by the Investor of such Requested Shares which
the Investor anticipated receiving pursuant to its request (a “Buy-In”), then the Company
shall (1) pay in cash to the Investor the amount by which (x) the Investor’s
total purchase price (including brokerage commissions, if any) for the shares of
Common Stock so purchased exceeds (y) the amount obtained by multiplying (A) the
number of Requested Shares that the Company was required to deliver to the
Investor in connection with its request at issue times (B) the price at which
the sell order giving rise to such purchase obligation was executed, and (2)
deliver to the Investor the number of shares of Common Stock that would have
been issued had the Company timely complied with its exercise and delivery
obligations hereunder. For example, if the Investor purchases Common
Stock having a total purchase price of $11,000 to cover a Buy-In with respect to
a requested issuance of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (1) of the
immediately preceding sentence the Company shall be required to pay the Investor
$1,000. The Investor shall provide the Company written notice
indicating the amounts payable to the Investor in respect of the Buy-In,
together with applicable confirmations and other evidence reasonably requested
by the Company. Nothing herein shall limit a Investor’s right to
pursue any other remedies available to it hereunder, at law or in equity
including, without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing Requested Shares of Common Stock upon request made
pursuant to the terms of Section 4.1(c) hereof.
11
4.2. Furnishing of
Information. As long as any Investor owns the Shares, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to the Exchange Act, and the Company
shall not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder
would permit such termination; provided, however, that the
provisions of this Section 4.2 shall
terminate and be of no further force and effect in the event of the acquisition
of the Company or substantially all of its assets. The Company
further covenants that it will take such further action as any holder of Shares
may reasonably request, all to the extent required from time to time to enable
such Person to sell the Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144.
4.3. Integration. The
Company shall not, and shall use its best efforts to ensure that no Affiliate of
the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Shares in a manner
that would require the registration under the Securities Act of the sale of the
Shares and Warrants to the Investors, or that would be integrated with the offer
or sale of the Shares for purposes of the rules and regulations of any Trading
Market in a manner that would require stockholder approval of the sale of the
securities to the Investors.
4.4. Securities Laws Disclosure;
Publicity. By 8:30 a.m. (New York City time) on the next
Business Day following the execution of this Agreement the Company will issue an
appropriate press release and file a Current Report on Form 8-K disclosing the
material terms of the Transaction Documents (and attach as exhibits thereto the
Transaction Documents) and, if the Closing occurs on the same date as the
execution of the Agreement, disclosing the Closing. If the Closing
occurs on a different date than the date of execution of this Agreement. by 8:30
a.m. (New York City time) on the next Business Day following the Closing Date
the Company will issue an additional press release and file an additional
Current Report on Form 8-K to disclose the Closing. In addition, the
Company will make such other filings and notices in the manner and time required
by the Commission and the Trading Market on which the Common Stock is
listed. Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Investor, or include the name of any Investor in any
filing with the Commission (other than a Registration Statement and any exhibits
to filings made in respect of this transaction in accordance with periodic
filing requirements under the Exchange Act) or any regulatory agency or Trading
Market, without the prior written consent of such Investor, except to the extent
such disclosure is required by law or Trading Market regulations.
4.5. Limitation on Issuance of
Future Priced Securities. For a period of one year after the
Effective Date , the Company shall not issue any “Future Priced Securities” as
such term is described by the rules and regulations of the Financial Industry
Regulatory Authority.
4.6. Indemnification of
Investors. In addition to the indemnity provided in the
Registration Rights Agreement, the Company will indemnify and hold the Investors
and their directors, officers, shareholders, partners, employees and agents
(each, an “Investor
Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Investor Party may suffer or incur as a
result of or relating to any misrepresentation, breach or inaccuracy of any
representation, warranty, covenant or agreement made by the Company in any
Transaction Document. Except as otherwise set forth herein, the
mechanics and procedures with respect to the rights and obligations under this
Section 4.6 shall be the same as those set forth in Section 5 of the
Registration Rights Agreement.
4.7. Non-Public
Information. The Company covenants and agrees that neither it
nor any other Person acting on its behalf will provide any Investor or its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Investor shall have
executed a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Investor
shall be relying on the foregoing representations in effecting transactions in
securities of the Company.
12
4.8. Listing of
Shares. The Company agrees, (i) if the Company applies to have
the Common Stock traded on any other Trading Market, it will include in such
application the Shares and the Warrant Shares, and will take such other action
as is necessary or desirable to cause the Shares and the Warrant Shares to be
listed on such other Trading Market as promptly as possible, and (ii) it will
take all action reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all material respects with
the Company’s reporting, filing and other obligations under the bylaws or rules
of the Trading Market.
4.9.
Use of
Proceeds. The Company will use the net proceeds from the sale
of the Shares hereunder for working capital, equipment/infrastructure, facility
development and business development purposes and to cover fees and expenses
associated with this offering and not for the satisfaction of any portion of the
Company’s debt (other than payment of trade payables and accrued expenses in the
ordinary course of the Company’s business and consistent with prior practices),
or to redeem any Common Stock or Common Stock Equivalents.
4.10 Lock-Up
Agreements. The Company’s President and CEO have entered into
an agreement with the Placement Agent, under which each such executive officer
has agreed, without the prior written consent of the Placement Agent, not to
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, sell stock short, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of any
shares of Common Stock or enter into any swap or other arrangement that
transfers any economic consequences of ownership of Common Stock prior to the
Effective Date of the Registration Statement, nor to engage in any of the
preceding activities with respect to 50% of the shares of Common Stock held by
such persons for a period of 45 days following the Effective Date of the
Registration Statement.
4.11 Reservation of
Shares. For so long as any of the Warrants remain outstanding
and unexpired, the Company shall take all action necessary to at all times have
authorized, and reserved for the purpose of issuance, no less than one hundred
percent (100%) of the aggregate number of shares of Common Stock needed to
provide for (i) the issuance of the Warrant Shares and (ii) the full exercise or
conversion of all outstanding securities of the Company that are exercisable
for, or convertible into, shares of Common Stock.
4.12. Subsequent
Registrations. Other than pursuant to the Registration Rights
Agreement, prior to the first to occur of (a) 30 days after the Effective Date
of a Registration Statement resulting in all Registrable Securities for which
registration is required other than Cut Back Shares (as such terms are defined
in the Registration Rights Agreement) being registered for resale pursuant to
one or more effective Registration Statements or (b) such time as all
Registrable Securities may be sold by the Investors without volume restrictions
pursuant to Rule 144, the Company may not file any registration statement (other
than on Form S-8) with the Commission with respect to any securities
of the Company.
4.13 Participation
Right. For a period of one year following the Effective Date
of the Registration Statement, Investor is hereby granted the right to
participate in each future equity capital-raising transaction entered into by
the Company prior to the expiration of such one-year period (on the same terms
and conditions as are offered to third party participants in such transaction),
pro rata to the extent of the dollar amount of Investor’s investment in the
Shares. The Company shall provide Investor with not less than ten days’ prior
written notice of Investor’s right to participate in an equity capital-raising
transaction covered by this provision, and Investor shall have ten days from its
receipt or deemed receipt of such notice to notify the Company, in writing,
whether it desires to participate. In the event Investor fails to respond to the
Company’s notice within such ten-day period, Investor shall be deemed not to
have exercised its participation right. In the event Investor provides timely
written notice to the Company of its election to participate in a
capital-raising transaction covered by this provision, Investor shall tender its
payment and any required documentation to the Company within five days following
Investor’s written notice of participation to the Company. In the event Investor
fails to make such payment on a timely basis or provide such documents,
Investor’s right of participation under this Section 4.13 with respect to such
transaction or any subsequent transactions shall terminate and shall thereafter
be of no further force or effect. The right of participation granted
to Investors under this Section 4.13 shall not apply to:
(1) any
transaction whereby (i) the Company pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that is payable in
shares of Common Stock, (ii) the Company subdivides outstanding shares of Common
Stock into a larger number of shares, (iii) the Company combines outstanding
shares of Common Stock into a smaller number of shares or (iv) there is a
Fundamental Transaction (as defined in the Warrant);
13
(2) the
issuance, conversion, exchange or exercise of any securities pursuant to this
Agreement;
(3) the
issuance of Common Stock or options exercisable for Common Stock to employees,
officers, consultants or directors of the Company or its subsidiaries, pursuant
to any stock or option plan duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a
committee of non-employee directors established for such purpose;
(4) the
issuance, conversion, exchange or exercise of any securities pursuant to any
additional equity financings with a higher offering price per share on its
common shares or equity-linked securities of any kind than the Per Share
Purchase Price of the shares of Common Stock issued pursuant to this
Agreement;
(5) the
issuance of Common Stock issuable upon the conversion, exchange or exercise of
other securities, warrants, options or similar rights, which securities were
issued before the date of this Agreement, provided such securities are not
amended after the date hereof to increase the number of shares of Common Stock
issuable thereunder or to lower the exercise or conversion price
thereof;
(6) the
issuance of Common Stock, options, warrants or other convertible securities
issued to strategic partners of the Company in connection with transactions
consummated with such strategic partners in furtherance of the Company’s
business objectives; or
(7) the
issuance of Common Stock in an underwritten public offering.
ARTICLE
5.
CONDITIONS
PRECEDENT TO CLOSING
5.1. Conditions Precedent to the
Obligations of the Investors to Purchase Shares. The
obligation of each Investor to acquire Shares and Warrants at the Closing is
subject to the satisfaction or waiver by such Investor, at or before the
Closing, of each of the following conditions:
(a) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct in all material respects as of the
date when made and as of the Closing as though made on and as of such
date;
(b) Performance. 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 it at or prior to the
Closing;
(c) No Injunction or
Action. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits
the consummation of any of the transactions contemplated by the Transaction
Documents; and no Action shall have been instituted or threatened against the
Company or any Subsidiary, or any of the officers, directors or affiliates of
the Company or any Subsidiary seeking to restrain, prevent or change the
transactions contemplated by the Transaction Documents, or seeking damages in
connection with such transactions.
(d) Adverse
Changes. Since the date of execution of this Agreement, no
event or series of events shall have occurred that reasonably could have or
result in a Material Adverse Effect, or could materially adversely affect the
credit standing of the Company or the Subsidiaries, or could materially
adversely affect the financial markets generally;
(e) No Suspensions of Trading in
Common Stock; Listing. Trading in the Common Stock shall not
have been suspended by the Commission or any Trading Market (except for any
suspensions of trading of not more than one Trading Day solely to permit
dissemination of material information regarding the Company) at any time since
the date of execution of this Agreement, and the Common Stock shall have been at
all times since such date listed for trading on a Trading Market;
14
(f) Company
Agreements. The Company shall have delivered:
(i)
The Registration Rights Agreement, duly executed by the Company;
and
(ii) The
Lock-Up Agreement, duly executed by each of the Company’s CEO and
President.
(g) Company
Deliverables. The Company shall have delivered the Company
Deliverables in accordance with Section 2.2(a); and
(h) Termination. This
Agreement shall not have been terminated as to such Investor in accordance with
Section 6.5.
(j) Opinion of
Counsel. At the Closing, the Investors shall have received the
legal opinion of Seyfarth Xxxx LLP, legal counsel to the Company, dated the date
of the Closing, opining as set forth in Annex B hereto;
and
(j) Secretary’s
Certificate. The Company shall have delivered to such Investor
a Secretary’s Certificate, dated as of the Closing Date, as to (i) the
resolutions adopted by the Company’s Board of Directors or any committee thereof
approving the transactions contemplated hereby, (ii) the Company’s Certificate
of Incorporation and Bylaws, each as in effect at the Closing, and (iii) the
authority and incumbency of the officers of the Company executing the
Transaction Documents and any other documents required to be executed or
delivered in connection therewith.
5.2. Conditions Precedent to the
Obligations of the Company to Sell Shares. The obligation of
the Company to sell Shares and Warrants at the Closing is subject to the
satisfaction or waiver by the Company, at or before the Closing, of each of the
following conditions:
(a) Representations and
Warranties. The representations and warranties of each
Investor contained herein shall be true and correct in all material respects as
of the date when made and as of the Closing Date as though made on and as of
such date;
(b) Performance. Each
Investor 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 Investor at or
prior to the Closing;
(c) No
Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the transactions contemplated by the
Transaction Documents;
(d) Investor
Deliverables. Each Investor shall have delivered the
Registration Rights Agreement and a completed copy of the Selling Stockholder
Questionnaire attached thereto, each duly executed by such Investor;
and
(e) Termination. This
Agreement shall not have been terminated in accordance with Section
6.5.
ARTICLE
6.
MISCELLANEOUS
6.1. Fees and
Expenses. Each party shall pay the fees and expenses of its
advisers, counsel, accountants and other experts, if any, and all other expenses
incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of the Transaction Documents. The Company
shall pay all stamp and other taxes and duties levied in connection with the
issuance of the Shares.
15
6.2. Entire
Agreement. The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements,
understandings, discussions and representations, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
6.3. Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile (provided the sender receives a
machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section prior to 6:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in this Section on a day that is not a Trading Day or later than 6:30
p.m. (New York City time) on any Trading Day, (c) the Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be
as follows:
|
If
to the Company:
|
||
|
0/X,
Xxxxxxxx 00, Xxxx 0, Xxxxxxx Xxxx
|
||
|
Technology
Park, Nanshan
District
|
||
|
Shenzhen,
People’s Republic of China 518057
|
||
|
Attn:
Chief Executive Officer
|
||
|
Facsimile:
x00-000-00000000
|
||
|
With
a copy to:
|
Seyfarth
Xxxx LLP
|
|
|
0
Xxxxxxx Xxxx, Xxx. 000
|
||
|
Xxxxxx,
XX 00000
|
||
|
Facsimile: (000)
000-0000
|
||
|
Attn.: Xxxxxxx
X. Xxxxx, Esq.
|
|
If
to an Investor:
|
To
the address set forth under such Investor's name on the signature pages
hereof; or such other address as may be designated in writing
hereafter, in the same manner, by such
Person.
|
or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.
6.4. Amendments; Waivers; No
Additional Consideration. No provision of this Agreement may
be waived or amended except in a written instrument signed by the Company and
Investors holding a majority in interest of the Shares then outstanding and held
by Investors. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right. No consideration shall be offered or
paid to any Investor to amend or consent to a waiver or modification of any
provision of this Agreement unless the same consideration is also offered to all
Investors who then hold Shares. Without the written consent or the
affirmative vote of each Investor affected thereby, an amendment or waiver under
this Section 6.4 may not waive or amend this Agreement the effect of which would
be to permit the Company to (1) name any Investor as an underwriter in a
Registration Statement without such Investor’s specific written consent thereto,
or (2) not include any Registrable Securities (as defined in the Registration
Rights Agreement) of an Investor in a Registration Statement due to their
refusal to be named as an underwriter therein. The Warrants may only be amended
as provided in Section 13(a) of the Warrants.
16
6.5. Termination. This
Agreement may be terminated prior to Closing:
(a) by
written agreement of the Investors and the Company; and
(b) by
the Company or an Investor (as to itself but no other Investor) upon written
notice to the other, if the Closing shall not have taken place by 6:30 p.m.
Eastern time on the Outside Date; provided, that the
right to terminate this Agreement under this Section 6.5(b) shall not be
available to any Person whose failure to comply with its obligations under this
Agreement has been the cause of or resulted in the failure of the Closing to
occur on or before such time.
In the
event of a termination pursuant to this Section, the Company shall promptly
notify all non-terminating Investors. Upon a termination in accordance with this
Section 6.5, the Company and the terminating Investor(s) shall not have any
further obligation or liability (including as arising from such termination) to
the other (except with respect to breaches of this Agreement) and no Investor
will have any liability to any other Investor under the Transaction Documents as
a result therefrom.
6.6. Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
This
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement or any of the
Transaction Documents. In addition, each and every reference to share
prices and shares of Common Stock in any Transaction Document shall be subject
to adjustment for reverse and forward stock splits, stock dividends, stock
combinations and other similar transactions of the Common Stock that occur after
the date of this Agreement.
6.7. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Investors. Any
Investor may assign any or all of its rights under this Agreement to any Person
to whom such Investor assigns or transfers any Shares, provided such transferee
agrees in writing to be bound, with respect to the transferred Shares, by the
provisions hereof that apply to the “Investors.”
6.8. No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.7 (as to each Investor
Party).
6.9. Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law
thereof. Each party agrees that all Actions concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective Affiliates, employees or agents) shall be
commenced exclusively in the state or federal courts located in the State of New
York. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York and any state court located in New York County, New York for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to
the enforcement of the any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action, any claim that it is not
personally subject to the jurisdiction of any such courts, or that such Action
has been commenced in an improper or inconvenient forum. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such Action by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such
party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by
law. Each party hereto hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal Action arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence an Action to
enforce any provisions of a Transaction Document, then the prevailing party in
such Action shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Action.
17
6.10. Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares.
6.11. Execution. This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
6.12. Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
6.13. Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents,
whenever any Investor exercises a right, election, demand or option under a
Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Investor may rescind
or withdraw, in its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.
6.14. Replacement of
Shares. If any certificate or instrument evidencing any Shares
is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon cancellation thereof, or in
lieu of and substitution therefor, a new certificate or instrument, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable indemnity, if
requested. If a replacement certificate or instrument evidencing any
Shares is requested due to a mutilation thereof, the Company may require
delivery of such mutilated certificate or instrument as a condition precedent to
any issuance of a replacement.
6.15. Remedies. In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, each of the Investors and the Company will
be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
6.16. Payment Set
Aside. To the extent that the Company makes a payment or
payments to any Investor pursuant to any Transaction Document or an Investor
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
18
6.17. Independent Nature of
Investors’ Obligations and Rights. The obligations of each
Investor under any Transaction Document are several and not joint with the
obligations of any other Investor, and no Investor shall be responsible in any
way for the performance of the obligations of any other Investor under any
Transaction Document. The decision of each Investor to purchase
Shares pursuant to the Transaction Documents has been made by such Investor
independently of any other Investor. Nothing contained herein or in
any Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction
Documents. Each Investor acknowledges that no other Investor has
acted as agent for such Investor in connection with making its investment
hereunder and that no Investor will be acting as agent of such Investor in
connection with monitoring its investment in the Shares or enforcing its rights
under the Transaction Documents. Each Investor shall be entitled to
independently protect and enforce its rights, including without limitation the
rights arising out of this Agreement or out of the other Transaction Documents,
and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose. The Company
acknowledges that each of the Investors has been provided with the same
Transaction Documents for the purpose of closing a transaction with multiple
Investors and not because it was required or requested to do so by any
Investor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW]
19
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
By:
|
/s/Xxxxx X.
Xxxxxxx
|
||
|
Name: Xxxxx
X. Xxxxxxx
|
|||
|
Title: Chief
Executive Officer
|
|||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOR INVESTORS FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Whitebox
Intermarket Partners, L.P.
|
||
|
By:
|
/s/Xxxx
Xxxxxxxxx
|
|
|
Name:Xxxx
Xxxxxxxxx
|
||
|
Title:CLO
|
||
|
Investment
Amount: $
|
160,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Whitebox
Advisors, LLC
|
|
|
Street:
|
0000
Xxxxxxxxx Xxxx., Xxxxx 000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
Attention:
|
Xxxx
Xxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Same
as above
|
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Whitebox
Combined Partners, L.P.
|
||
|
By:
|
/s/Xxxx
Xxxxxxxxx
|
|
|
Name:Xxxx
Xxxxxxxxx
|
||
|
Title:CLO
|
||
|
Investment
Amount: $
|
840,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Whitebox
Advisors, LLC
|
|
|
Street:
|
0000
Xxxxxxxxx Xxxx., Xxxxx 000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
Attention:
|
Xxxx
Xxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Same
as above
|
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Pandora
Select Partners, L.P.
|
||
|
By:
|
/s/Xxxx
Xxxxxxxxx
|
|
|
Name:Xxxx
Xxxxxxxxx
|
||
|
Title:CLO
|
||
|
Investment
Amount: $
|
250,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Whitebox
Advisors, LLC
|
|
|
Street:
|
0000
Xxxxxxxxx Xxxx., Xxxxx 000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
Attention:
|
Xxxx
Xxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Same
as above
|
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Whitebox
Special Opportunities Fund Series B Partners, L.P.
|
||
|
By:
|
/s/Xxxx
Xxxxxxxxx
|
|
|
Name:Xxxx
Xxxxxxxxx
|
||
|
Title:CLO
|
||
|
Investment
Amount: $
|
160,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Whitebox
Advisors, LLC
|
|
|
Street:
|
0000
Xxxxxxxxx Xxxx., Xxxxx 000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxxx,
XX 00000-0000
|
|
Attention:
|
Xxxx
Xxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Same
as above
|
|
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Famous
Link Group Limited
|
||
|
By:
|
/s/
Yuequin Ying
|
|
|
Name:Yuequin
Ying
|
||
|
Title:Sole
Director
|
||
|
Investment
Amount: $
|
US$300,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Dai
Zhonglin
|
|
|
Street:
|
Room
2308, Tower A, Time Court, ShuguangXiLi Jia
6
|
|
City/State/Zip:
|
Chaoyang
District, Beijing, China 100028
|
|
Attention:
|
Yuequin
Ying
|
|
Tel:
|
x00
0000 0000
|
|
Fax:
|
x00
00 0000 0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Cranshire
Capital L.P.
|
||
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
|
Name:Xxxxx
Xxxxxxx
|
||
|
Title:COO
– Downsview Capital Inc. – the G.P.
|
||
|
Investment
Amount: $
|
249,999.00
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
||
|
Street:
|
0000
Xxxxxx #000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxxxxx,
XX 00000
|
|
Attention:
|
Xxxxxxxx
Xxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Capital
Ventures International by Heights Capital Management Its Authorized
Agent
|
||
|
By:
|
/s/Xxxxxx
Xxxxxxxx
|
|
|
Name:Xxxxxx
Xxxxxxxx
|
||
|
Title:Investment
Manager
|
||
|
Investment
Amount: $
|
300,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Heights
Capital Management
|
|
|
Street:
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxxxxxxx, XX 00000
|
|
Attention:
|
Xxx
Xxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Heights
Capital Management Attn: Xxxx
Xxxxx
|
|
|
Street:
|
000
Xxxx Xxxx Xxxxx, Xxxxx 000
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxx
Xxxxxxx, XX 00000
|
|
Attention:
|
Xxxx
Xxxxx
|
|
Tel:
|
000-000-0000
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Iroquois
Master Fund Ltd.
|
||
|
By:
|
/s/:Xxxxxx
Xxxxxxxxx
|
|
|
Name:Xxxxxx
Xxxxxxxxx
|
||
|
Title:Authorized
Signatory
|
||
|
Investment
Amount: $
|
249,999
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
||
|
Street:
|
000
Xxxxxxxxx Xxx., 00xx
Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxx
Xxxxxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Ramius
Navigation Master Fund, Ltd.
|
||
|
By:
|
/s/Xxxx
Xxxxxxx
|
|
|
Name:Xxxx
Xxxxxxx
|
||
|
Title:Authorized
Signatory
|
||
|
Investment
Amount: $
|
275,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Ramius,
LLC
|
|
|
Street:
|
000
Xxxxxxxxx Xxx.,00xx Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxxxxx
Xxxxx/Xxxx Xxxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Xxxxxxx
Sachs & Co.
|
|
|
Street:
|
000
Xxxx Xxxxxx, 0xx Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxxx
Xxx
|
|
Tel:
|
000-000-0000
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Ramius
Enterprise Master Fund Ltd.
|
||
|
By:
|
/s/Xxxx
Xxxxxxx
|
|
|
Name:Xxxx
Xxxxxxx
|
||
|
Title:Authorized
Signatory
|
||
|
Investment
Amount: $
|
225,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Ramius,
LLC
|
|
|
Street:
|
000
Xxxxxxxxx Xxx.,00xx Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxxxxx
Xxxxx/Xxxx Xxxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
Xxxxxxx
Sachs & Co.
|
|
|
Street:
|
000
Xxxx Xxxxxx, 0xx Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxxx
Xxx
|
|
Tel:
|
000-000-0000
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Xxxxxx
Bay Fund LP
|
||
|
By:
|
/s/
|
|
|
Name:Xxxxxx
Bay Capital Management LP by Xxxx Xxxx
|
||
|
Title:Investment
Manager/Authorized Signatory
|
||
|
Investment
Amount: $
|
102,501
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Xxxxxx
Bay Capital Management LP
|
|
|
Street:
|
000
Xxxxxxxx, 00xx
Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
Xxxx
Xxxx
|
|
Tel:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Octagon
Capital Partners
|
||
|
By:
|
/s/
Xxxxxx Xxxx
|
|
|
Name:Xxxxxx
Xxxx
|
||
|
Title:General
Partner
|
||
|
Investment
Amount: $
|
99,999
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Xxxxxx
Xxxx
|
|
|
Street:
|
000
Xxxx 00xx
Xxxxxx #00X
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Crescent
Ridge Partners, LP
|
||
|
By:
|
/s/Xxxxxxx
Xxxx
|
|
|
Name:Xxxxxxx
Xxxx
|
||
|
Title:CFO
|
||
|
Investment
Amount: $
|
450,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
||
|
Street:
|
00
Xxxxxx Xxxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxxxxxx,
XX 00000
|
|
Attention:
|
Xxx
Xxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
|
NAME
OF INVESTOR
|
||
|
Cape
One Financial L.P.
|
||
|
By:
|
||
|
Name:Xxxx
Xxxxxxxx
|
||
|
Title:Managing
Member
|
||
|
Investment
Amount: $
|
200,000
|
||
|
Tax
ID No.:
|
|||
|
ADDRESS
FOR NOTICE
|
||
|
c/o:
|
Cape
One Financial L.P
|
|
|
Street:
|
000
Xxxx Xxx., 00xx Xxxxx
|
|
Xxxx/Xxxxx/Xxx:
|
Xxx
Xxxx, XX 00000
|
|
Attention:
|
Xxxx
Xxxxxxxx
|
|
Tel:
|
000-000-0000
|
|
Fax:
|
000-000-0000
|
|
DELIVERY
INSTRUCTIONS
(if
different from above)
|
||
|
c/o:
|
||
|
Street:
|
|
City/State/Zip:
|
|
Attention:
|
|
Tel:
|
Investor Signature Page to
Securities Purchase Agreement
