SECURITIES PURCHASE AGREEMENT
THIS SECURITIES
PURCHASE AGREEMENT
(this
“Agreement”)
dated
as of December ___, 2004 by and among XXXXXXX,
XXXXXXX GROUP, INC.,
a
Florida corporation (the “Company”) and the Buyers listed on Schedule I attached
hereto (individually, a “Buyer”
or
collectively “Buyers”).
WITNESSETH:
WHEREAS,
the
Company and the Buyer(s) are executing and delivering this Agreement in reliance
upon an exemption from securities registration pursuant to Section 4(2) and/or
Rule 506 of Regulation D (“Regulation
D”)
as
promulgated by the U.S. Securities and Exchange Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the “Securities
Act”);
WHEREAS,
the
parties desire that, upon the terms and subject to the conditions contained
herein, the Company shall issue and sell to the Buyer(s), as provided herein,
and the Buyer(s) shall purchase One Million Seventy Five Thousand Dollars
($1,075,000) of secured convertible debentures (the “Convertible
Debentures”),
which
shall be convertible into shares of the Company’s common stock, par value $0.001
(the “Common
Stock”)
(as
converted, the “Conversion
Shares”),
of
which $575,000 shall be funded within five (5) business days hereof (the
“First
Closing”),
and
$500,000 shall be funded within five (5) business days after the filing of
a
registration statement (the “Registration
Statement”)
pursuant to the Investor Registration Rights Agreement of even date herewith,
with the United States Securities and Exchange Commission (the “SEC”)
(the
“Second
Closing”),
for a
total purchase price of $1,075,000 (the “Purchase
Price”)
in the
respective amounts set forth opposite each Buyer(s) name on Schedule I (the
“Subscription
Amount”);
and
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Registration Rights Agreement (the
“Investor
Registration Rights Agreement”)
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated there under,
and applicable state securities laws; and
WHEREAS,
the
aggregate proceeds of the sale of the Convertible Debentures contemplated hereby
shall be held in escrow pursuant to the terms of an Escrow Agreement (the
“Escrow
Agreement”)
of
even date herewith.
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering Irrevocable Transfer Agent
Instructions (the “Irrevocable
Transfer Agent Instructions”).
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the parties
hereto are executing and delivering a Security Agreement (the “Security
Agreement”)
pursuant to which the Company has agreed to provide the Buyer a security
interest in Pledged Collateral (as this term is defined in the Security
Agreement) to secure Company’s obligations under this Agreement, the Convertible
Debenture, the Investor Registration Rights Agreement, the Irrevocable Transfer
Agent Instructions, or any other obligations of the Company to the
Buyer.
NOW,
THEREFORE,
in
consideration of the mutual covenants and other agreements contained in this
Agreement the Company and the Buyer(s)hereby agree as follows:
1. PURCHASE
AND SALE OF CONVERTIBLE DEBENTURES.
(a) Purchase
of Convertible Debentures.
Subject
to the satisfaction (or waiver) of the terms and conditions of this Agreement,
each Buyer agrees, severally and not jointly, to purchase at each Closing and
the Company agrees to sell and issue to each Buyer, severally and not jointly,
at each Closing, Convertible Debentures in amounts corresponding with the
Subscription Amount set forth opposite each Buyer’s name on Schedule I hereto.
Upon execution hereof by a Buyer, the Buyer shall wire transfer the Subscription
Amount set forth opposite his name on Schedule I in same-day funds or a check
payable to “Xxxxx Xxxxxxxx, Esq., as Escrow Agent for Xxxxxxx, Xxxxxxx Group,
Inc./Cornell Capital Partners, LP”, which Subscription Amount shall be held in
escrow pursuant to the terms of the Escrow Agreement (as hereinafter defined)
and disbursed in accordance therewith.
(b) Closing
Date.
The
First Closing of the purchase and sale of the Convertible Debentures shall
take
place on or before the fifth (5th)
business day following the date hereof, subject to notification of satisfaction
of the conditions to the First Closing set forth herein and in Sections 6 and
7
below (or such later date as is mutually agreed to by the Company and the
Buyer(s)) (the “First
Closing Date”),
the
Second Closing of the purchase and sale of the Convertible Debentures shall
take
place on or before the fifth (5th)
business day after the Registration Statement is filed with the SEC, subject
to
notification of satisfaction of the conditions to the Second Closing set forth
herein and in Sections 6 and 7 below (or such later date as is mutually agreed
to by the Company and the Buyer(s)) (the “Second
Closing Date”) (collectively
referred to a the “Closing
Dates”).
The
Closings shall occur on the respective Closing Dates at the offices of Yorkville
Advisors, LLC, 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000
(or
such other place as is mutually agreed to by the Company and the Buyer(s)).
(c) Escrow
Arrangements; Form of Payment.
Upon
execution hereof by Buyer(s) and pending the Closings, the aggregate proceeds
of
the sale of the Convertible Debentures to Buyer(s) pursuant hereto shall be
deposited in a non-interest bearing escrow account with Xxxxx Xxxxxxxx, Esq.,
as
escrow agent (the “Escrow
Agent”),
pursuant to the terms of the Escrow Agreement. Subject to the satisfaction
of
the terms and conditions of this Agreement, on the Closing Dates, (i) the Escrow
Agent shall deliver to the Company in accordance with the terms of the Escrow
Agreement such aggregate proceeds for the Convertible Debentures to be issued
and sold to such Buyer(s), minus a structuring fee of $75,000 to the Buyer
pursuant to Section 4(g) hereof, which shall be paid directly from the
gross proceeds of the First Closing held in escrow, each by wire transfer of
immediately available funds in accordance with the Company’s written wire
instructions, and (ii) the Company shall deliver to each Buyer, Convertible
Debentures which such Buyer(s) is purchasing in amounts indicated opposite
such
Buyer’s name on Schedule I, duly executed on behalf of the Company.
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2. BUYER’S
REPRESENTATIONS AND WARRANTIES.
Each
Buyer represents and warrants, severally and not jointly, that:
(a) Investment
Purpose.
Each
Buyer is acquiring the Convertible Debentures and, upon conversion of
Convertible Debentures, the Buyer will acquire the Conversion Shares then
issuable, for its own account for investment only and not with a view towards,
or for resale in connection with, the public sale or distribution thereof,
except pursuant to sales registered or exempted under the Securities Act;
provided, however, that by making the representations herein, such Buyer
reserves the right to dispose of the Conversion Shares at any time in accordance
with or pursuant to an effective registration statement covering such Conversion
Shares or an available exemption under the Securities Act.
(b) Accredited
Investor Status.
Each
Buyer is an “Accredited
Investor”
as
that
term is defined in Rule 501(a)(3) of Regulation D.
(c) Reliance
on Exemptions.
Each
Buyer understands that the Convertible Debentures are being offered and sold
to
it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and such Buyer’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Buyer set forth herein in order to determine the availability of such
exemptions and the eligibility of such Buyer to acquire such
securities.
(d) Information.
Each
Buyer and its advisors (and his or, its counsel), if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and information he deemed material to making an informed investment
decision regarding his purchase of the Convertible Debentures and the Conversion
Shares, which have been requested by such Buyer. Each Buyer and its advisors,
if
any, have been afforded the opportunity to ask questions of the Company and
its
management. Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its representatives shall
modify, amend or affect such Buyer’s right to rely on the Company’s
representations and warranties contained in Section 3 below. Each Buyer
understands that its investment in the Convertible Debentures and the Conversion
Shares involves a high degree of risk. Each Buyer is in a position regarding
the
Company, which, based upon employment, family relationship or economic
bargaining power, enabled and enables such Buyer to obtain information from
the
Company in order to evaluate the merits and risks of this investment. Each
Buyer
has sought such accounting, legal and tax advice, as it has considered necessary
to make an informed investment decision with respect to its acquisition of
the
Convertible Debentures and the Conversion Shares.
(e) No
Governmental Review.
Each
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Convertible Debentures or the Conversion Shares, or the
fairness or suitability of the investment in the Convertible Debentures or
the
Conversion Shares, nor have such authorities passed upon or endorsed the merits
of the offering of the Convertible Debentures or the Conversion
Shares.
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(f) Transfer
or Resale.
Each
Buyer understands that except as provided in the Investor Registration Rights
Agreement: (i) the Convertible Debentures have not been and are not being
registered under the Securities Act or any state securities laws, and may not
be
offered for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, or (B) such Buyer shall have delivered to the Company
an
opinion of counsel, in a generally acceptable form, to the effect that such
securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration requirements; (ii)
any sale of such securities made in reliance on Rule 144 under the Securities
Act (or a successor rule thereto) (“Rule 144”)
may be
made only in accordance with the terms of Rule 144 and further, if Rule 144
is not applicable, any resale of such securities under circumstances in which
the seller (or the person through whom the sale is made) may be deemed to
be an underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules
and
regulations of the SEC thereunder; and (iii) neither the Company nor any other
person is under any obligation to register such securities under the Securities
Act or any state securities laws or to comply with the terms and conditions
of
any exemption thereunder. The Company reserves the right to place stop transfer
instructions against the shares and certificates for the Conversion
Shares.
(g) Legends.
Each
Buyer understands that the certificates or other instruments representing the
Convertible Debentures and or the Conversion Shares shall bear a restrictive
legend in substantially the following form (and a stop -transfer order may
be
placed against transfer of such stock certificates):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIRED SOLELY FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW
TOWARD RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR
AN
OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The
legend set forth above shall be removed and the Company within two (2) business
days shall issue a certificate without such legend to the holder of the
Conversion Shares upon which it is stamped, if, unless otherwise required by
state securities laws, (i) in connection with a sale transaction, provided
the
Conversion Shares are registered under the Securities Act, or (ii) in connection
with a sale transaction, after such holder provides the Company with an opinion
of counsel, which opinion shall be in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a public
sale, assignment or transfer of the Conversion Shares may be made without
registration under the Securities Act.
4
(h) Authorization,
Enforcement.
This
Agreement has been duly and validly authorized, executed and delivered on behalf
of such Buyer and is a valid and binding agreement of such Buyer enforceable
in
accordance with its terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to,
or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.
(i) Receipt
of Documents.
Each
Buyer and his or its counsel has received and read in their entirety: (i) this
Agreement and each representation, warranty and covenant set forth herein,
the
Security Agreement, the Investor Registration Rights Agreement, the Escrow
Agreement, and the Irrevocable transfer Agent Instructions; (ii) all due
diligence and other information necessary to verify the accuracy and
completeness of such representations, warranties and covenants;
(iii) answers to all questions each Buyer submitted to the Company
regarding an investment in the Company; and each Buyer has relied on the
information contained therein and has not been furnished any other documents,
literature, memorandum or prospectus.
(j) Due
Formation of Corporate and Other Buyers.
If the
Buyer(s) is a corporation, trust, partnership or other entity that is not an
individual person, it has been formed and validly exists and has not been
organized for the specific purpose of purchasing the Convertible Debentures
and
is not prohibited from doing so.
(k) No
Legal Advice From the Company.
Each
Buyer acknowledges that it had the opportunity to review this Agreement and
the
transactions contemplated by this Agreement with his or its own legal counsel
and investment and tax advisors. Each Buyer is relying solely on such counsel
and advisors and not on any statements or representations of the Company or
any
of its representatives or agents for legal, tax or investment advice with
respect to this investment, the transactions contemplated by this Agreement
or
the securities laws of any jurisdiction.
(l) No
Buyer
makes any representation or warranty regarding the Company’s ability to
successfully become a public company or to have any registration statement
filed
by the Company pursuant to the Registration Rights Agreement or otherwise
declared effective by the SEC. The Company has the sole obligation to make
any
and all such filings as may be necessary to become a public company and to
have
any registration statement declared effective by the SEC.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers as set forth below, except
as set forth in the Disclosure Schedule attached as Exhibit “A” hereto. All
references to the Company in this Section 3 shall mean the Company and its
wholly owned subsidiary, Xxxxxxx, Xxxxxxx and Company, Inc. (the “Subsidiary”).
(a) Organization
and Qualification.
The
Company and its subsidiaries are corporations duly organized and validly
existing in good standing under the laws of the jurisdiction in which they
are
incorporated, and have the requisite corporate power to own their properties
and
to carry on their business as now being conducted. Each of the Company and
its
subsidiaries is duly qualified as a foreign corporation to do business and
is in
good standing in every jurisdiction in which the nature of the business
conducted by it makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole.
5
(b) Authorization,
Enforcement, Compliance with Other Instruments.
(i) The Company has the requisite corporate power and authority to enter
into and perform this Agreement, the Security Agreement, the Investor
Registration Rights Agreement, the Escrow Agreement, the Irrevocable Transfer
Agent Instructions, and any related agreements, and to issue the Convertible
Debentures and the Conversion Shares in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement, the Security
Agreement, the Investor Registration Rights Agreement, the Escrow Agreement,
the
Irrevocable Transfer Agent Instructions (as defined herein) and any related
agreements by the Company and the consummation by it of the transactions
contemplated hereby and thereby, including, without limitation, the issuance
of
the Convertible Debentures the Conversion Shares and the reservation for
issuance and the issuance of the Conversion Shares issuable upon conversion
or
exercise thereof, have been duly authorized by the Company’s Board of Directors
and no further consent or authorization is required by the Company, its Board
of
Directors or its stockholders, (iii) this Agreement, the Security Agreement,
the
Investor Registration Rights Agreement, the Escrow Agreement, the Irrevocable
Transfer Agent Instructions and any related agreements have been duly executed
and delivered by the Company, (iv) this Agreement, the Security Agreement,
the
Investor Registration Rights Agreement, the Escrow Agreement, the Irrevocable
Transfer Agent Instructions and any related agreements constitute the valid
and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally,
the
enforcement of creditors’ rights and remedies. The authorized officer of the
Company executing this Agreement, the Security Agreement, the Investor
Registration Rights Agreement, the Escrow Agreement, the Irrevocable Transfer
Agent Instructions and any related agreements knows of no reason why the Company
cannot file the registration statement as required under the Investor
Registration Rights Agreement or perform any of the Company’s other obligations
under such documents.
(c) Capitalization.
As
of the
date hereof, the authorized capital stock of the Company, excluding the
Subsidiary, consists of ninety nine million (99,000,000) shares of Common Stock
and one million (1,000,000) shares of blank check preferred stock, of which
ten
million (10,000,000) shares of Common Stock are outstanding, seventy five
thousand (75,000) shares of Series A Preferred are outstanding, and ten (10)
shares of Series B Preferred are outstanding. All
outstanding shares of the Company and the Subsidiary have been validly issued
and are fully paid and nonassessable. Except as disclosed in the Disclosure
Schedule, no shares of Common Stock of the Company are subject to preemptive
rights or any other similar rights or any liens or encumbrances suffered or
permitted by the Company. Except as disclosed in the Disclosure Schedule, as
of
the date of this Agreement, (i) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its subsidiaries
is or may become bound to issue additional shares of capital stock of the
Company or any of its subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities or rights convertible into, any shares of capital stock of the
Company or any of its subsidiaries, (ii) there are no outstanding debt
securities and (iii) there are no agreements or arrangements under which the
Company or any of its subsidiaries is obligated to register the sale of any
of
their securities under the Securities Act (except pursuant to the Registration
Rights Agreement) and (iv) there are no outstanding registration statements
and
there are no outstanding comment letters from the SEC or any other regulatory
agency. There are no securities or instruments containing anti-dilution or
similar provisions that will be triggered by the issuance of the Convertible
Debentures as described in this Agreement. The Company has furnished to the
Buyer true and correct copies of the Company’s Articles of Incorporation, as
amended and as in effect on the date hereof (the “Articles
of Incorporation”),
and
the Company’s By-laws, as in effect on the date hereof (the “By-laws”),
and
the terms of all securities convertible into or exercisable for Common Stock
and
the material rights of the holders thereof in respect thereto other than stock
options issued to employees and consultants. The Company owns all the stock
of
the Subsidiary.
6
(d) Issuance
of Securities.
The
Convertible Debentures are duly authorized and, upon issuance in accordance
with
the terms hereof, shall be duly issued, fully paid and nonassessable, are free
from all taxes, liens and charges with respect to the issue thereof. The
Conversion Shares issuable upon conversion of the Convertible Debentures have
been duly authorized and reserved for issuance. Upon conversion or exercise
in
accordance with the Convertible Debentures the Conversion Shares will be duly
issued, fully paid and nonassessable.
(e) No
Conflicts.
Except
as disclosed in the Disclosure Schedule, the execution, delivery and performance
of this Agreement, the Security Agreement, the Investors Registration Rights
Agreement, the Escrow Agreement and the Irrevocable Transfer Agent Instructions
by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Articles of
Incorporation, any certificate of designations of any outstanding series of
preferred stock of the Company or the By-laws or (ii) conflict with or
constitute a default (or an event which 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 of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or result
in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and the rules
and
regulations of The National Association of Securities Dealers Inc.’s OTC
Bulletin Board on which the Common Stock is quoted) applicable to the Company
or
any of its subsidiaries or by which any property or asset of the Company or
any
of its subsidiaries is bound or affected. Except as disclosed in the Disclosure
Schedule, neither the Company nor its subsidiaries is in violation of any term
of or in default under its Articles of Incorporation or By-laws or their
organizational charter or by-laws, respectively, or any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree
or
order or any statute, rule or regulation applicable to the Company or its
subsidiaries. The business of the Company and its subsidiaries is not being
conducted, and shall not be conducted in violation of any material law,
ordinance, or regulation of any governmental entity. Except as specifically
contemplated by this Agreement and as required under the Securities Act and
any
applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with,
any
court or governmental agency in order for it to execute, deliver or perform
any
of its obligations under or contemplated by this Agreement or the Registration
Rights Agreement in accordance with the terms hereof or thereof. Except as
disclosed in the Disclosure Schedule, all consents, authorizations, orders,
filings and registrations which the Company is required to obtain pursuant
to
the preceding sentence have been obtained or effected on or prior to the date
hereof. The Company and its subsidiaries are unaware of any facts or
circumstance, which might give rise to any of the foregoing.
7
(f) Financial
Statements.
As of
their respective dates, the financial statements of the Company (the
“Financial
Statements”)
for
the two most recently completed fiscal years and any subsequent interim period
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (i) as may be otherwise indicated in such Financial
Statements or the notes thereto, or (ii) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and, fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case
of
unaudited statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to the Buyer, including,
without limitation, information referred to in this Agreement, contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) Absence
of Litigation.
Except
as disclosed in the Disclosure Schedule, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending against or affecting the
Company, the Common Stock or any of the Company’s subsidiaries, wherein an
unfavorable decision, ruling or finding would (i) have a material adverse effect
on the transactions contemplated hereby (ii) adversely affect the validity
or
enforceability of, or the authority or ability of the Company to perform its
obligations under, this Agreement or any of the documents contemplated herein,
or (iii) except as expressly disclosed in the Disclosure Schedule, have a
material adverse effect on the business, operations, properties, financial
condition or results of operations of the Company and its subsidiaries taken
as
a whole.
(h) Acknowledgment
Regarding Buyer’s Purchase of the Convertible Debentures.
The
Company acknowledges and agrees that the Buyer(s) is acting solely in the
capacity of an arm’s length purchaser with respect to this Agreement and the
transactions contemplated hereby. The Company further acknowledges that the
Buyer(s) is not acting as a financial advisor or fiduciary of the Company (or
in
any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by the Buyer(s) or any of their
respective representatives or agents in connection with this Agreement and
the
transactions contemplated hereby is merely incidental to such Buyer’s purchase
of the Convertible Debentures or the Conversion Shares. The Company further
represents to the Buyer that the Company’s decision to enter into this Agreement
has been based solely on the independent evaluation by the Company and its
representatives.
8
(i) No
General Solicitation.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) in connection
with
the offer or sale of the Convertible Debentures or the Conversion
Shares.
(j) No
Integrated Offering.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security
or
solicited any offers to buy any security, under circumstances that would require
registration of the Convertible Debentures or the Conversion Shares under the
Securities Act or cause this offering of the Convertible Debentures or the
Conversion Shares to be integrated with prior offerings by the Company for
purposes of the Securities Act.
(k) Employee
Relations.
Neither
the Company nor any of its subsidiaries is involved in any labor dispute nor,
to
the knowledge of the Company or any of its subsidiaries, is any such dispute
threatened. None of the Company’s or its subsidiaries’ employees is a member of
a union and the Company and its subsidiaries believe that their relations with
their employees are good.
(l) Intellectual
Property Rights.
The
Company and its subsidiaries own or possess adequate rights or licenses to
use
all trademarks, trade names, service marks, service xxxx registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary to conduct
their
respective businesses as now conducted. The Company and its subsidiaries do
not
have any knowledge of any infringement by the Company or its subsidiaries of
trademark, trade name rights, patents, patent rights, copyrights, inventions,
licenses, service names, service marks, service xxxx registrations, trade secret
or other similar rights of others, and, to the knowledge of the Company there
is
no claim, action or proceeding being made or brought against, or to the
Company’s knowledge, being threatened against, the Company or its subsidiaries
regarding trademark, trade name, patents, patent rights, invention, copyright,
license, service names, service marks, service xxxx registrations, trade secret
or other infringement; and the Company and its subsidiaries are unaware of
any
facts or circumstances which might give rise to any of the
foregoing.
(m) Environmental
Laws.
The
Company and its subsidiaries are (i) in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental
Laws”),
(ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval.
(n) Title.
Any
real property and facilities held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made
and proposed to be made of such property and buildings by the Company and its
subsidiaries.
9
(o) Insurance.
The
Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
management of the Company believes to be prudent and customary in the businesses
in which the Company and its subsidiaries are engaged. Neither the Company
nor
any such subsidiary has been refused any insurance coverage sought or applied
for and neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as
may
be necessary to continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(p) Regulatory
Permits.
The
Company and its subsidiaries possess all material certificates, authorizations
and permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and neither the
Company nor any such subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or
permit.
(q) Internal
Accounting Controls.
The
Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to
maintain asset accountability, and (iii) the recorded amounts for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(r) No
Material Adverse Breaches, etc.
Except
as set forth in the Disclosure Schedule, neither the Company nor any of its
subsidiaries is subject to any charter, corporate or other legal restriction,
or
any judgment, decree, order, rule or regulation which in the judgment of the
Company’s officers has or is expected in the future to have a material adverse
effect on the business, properties, operations, financial condition, results
of
operations or prospects of the Company or its subsidiaries. Except as set forth
in the Disclosure Schedule, neither the Company nor any of its subsidiaries
is
in breach of any contract or agreement which breach, in the judgment of the
Company’s officers, has or is expected to have a material adverse effect on the
business, properties, operations, financial condition, results of operations
or
prospects of the Company or its subsidiaries.
(s) Tax
Status.
Except
as set forth in the Disclosure Schedule, the Company and each of its
subsidiaries has made and filed all federal and state income and all other
tax
returns, reports and declarations required by any jurisdiction to which it
is
subject and (unless and only to the extent that the Company and each of its
subsidiaries has set aside on its books provisions reasonably adequate for
the
payment of all unpaid and unreported taxes) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to
the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority
of
any jurisdiction, and the officers of the Company know of no basis for any
such
claim.
10
(t) Certain
Transactions.
Except
as set forth in the Disclosure Schedule, and except for arm’s length
transactions pursuant to which the Company makes payments in the ordinary course
of business upon terms no less favorable than the Company could obtain from
third parties and other than the grant of stock options disclosed in the
Disclosure Schedule, none of the officers, directors, or employees of the
Company is presently a party to any transaction with the Company (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 corporation, partnership, trust or other entity
in
which any officer, director, or any such employee has a substantial interest
or
is an officer, director, trustee or partner.
(u) Fees
and Rights of First Refusal.
The
Company is not obligated to offer the securities offered hereunder on a right
of
first refusal basis or otherwise to any third parties including, but not limited
to, current or former shareholders of the Company, underwriters, brokers, agents
or other third parties.
(v) No
person
has any right to acquire any shares of the Subsidiary, including through grants
or exercise of options, warrants, or securities convertible into shares of
the
Subsidiary.
(w) The
Company acknowledges that the Buyer is relying on the representations and
warranties made by the Company hereunder and that such representations and
warranties are a material inducement to the Buyer purchasing the Convertible
Debentures. The Company further acknowledges that without such representations
and warranties of the Company made hereunder, the Buyer would not enter into
this Agreement.
4. COVENANTS.
(a) Best
Efforts.
Each
party shall use its best efforts timely to satisfy each of the conditions to
be
satisfied by it as provided in Sections 6 and 7 of this Agreement.
(b) Form
D.
The
Company agrees to file a Form D with respect to the Convertible Debenture as
required under Regulation D and to provide a copy thereof to each Buyer promptly
after such filing. The Company shall, on or before the Closing Date, take such
action as the Company shall reasonably determine is necessary to qualify the
Conversion Shares, or obtain an exemption for the Conversion Shares for sale
to
the Buyers at the Closing pursuant to this Agreement under applicable securities
or “Blue
Sky”
laws
of
the states of the United States, and shall provide evidence of any such action
so taken to the Buyers on or prior to the Closing Date.
(c) Reporting
Status.
Commencing on the effectiveness of the registration statement filed with the
SEC
pursuant to the Investor Registration Rights Agreement and until the earlier
of
(i) the date as of which the Buyer(s) may sell all of the Conversion Shares
without restriction pursuant to Rule 144(k) promulgated under the Securities
Act
(or successor thereto), or (ii) the date on which (A) the Buyer(s) shall
have sold all the Conversion Shares and (B) none of the Convertible Debentures
are outstanding (the “Registration
Period”),
the
Company shall file in a timely manner all reports required to be filed with
the
SEC pursuant to the Exchange Act and the regulations of the SEC thereunder,
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 otherwise permit such termination.
11
(d) Use
of
Proceeds.
The
Company shall use the net proceeds to be received in this transaction in a
manner consistent with the uses described in the Budget attached as Exhibit
B
hereto. The Company in its discretion may deviate up to ten percent (10%) for
any single line described in Exhibit B hereto.
(e) Reservation
of Shares.
The
Company shall take all action reasonably necessary to at all times have
authorized, and reserved for the purpose of issuance, such number of shares
of
Common Stock as shall be necessary to effect the issuance of the Conversion
Shares. If at any time the Company does not have available such shares of Common
Stock as shall from time to time be sufficient to effect the conversion of
all
of the Conversion Shares of the Company shall call and hold a special meeting
of
the shareholders within thirty (30) days of such occurrence, for the sole
purpose of increasing the number of shares authorized. The Company’s management
shall recommend to the shareholders to vote in favor of increasing the number
of
shares of Common Stock authorized. Management shall also vote all of its shares
in favor of increasing the number of authorized shares of Common
Stock.
(f) Listings
or Quotation.
The
Company shall, concurrently with the effectiveness of the registration statement
filed with the SEC pursuant to the Investor Registration Rights Agreement,
secure the listing or quotation of its Common Stock (including, without
limitation, the Conversion Shares) upon a national securities exchange,
automated quotation system or the Over-The-Counter Bulletin Board (“OTCBB”)
maintained by the National Association of Securities Dealers, Inc. The Company
shall maintain the listing or quotation of the Common Stock for so long as
the
Buyer is the beneficial owner of any Common Stock or Conversion Shares (whether
obtained or to be obtained under this Agreement), the Convertible Debentures
or
any other agreement between the Company and the Buyer. The Company shall
maintain the Common Stock’s authorization for quotation on the OTCBB. It shall
be an event of default hereunder if the Company fails to strictly comply with
its obligations under this Section 4(f).
(g) Fees
and Expenses.
Except
as set forth below, each of the Company and the Buyer(s) shall pay all costs
and
expenses incurred by such party in connection with the negotiation,
investigation, preparation, execution and delivery of this Agreement, the Escrow
Agreement, the Investor Registration Rights Agreement, the Security Agreement
and the Irrevocable Transfer Agent Instructions. The Buyer(s) shall be entitled
to a commitment fee of ten percent (10%) on the Purchase Price.
The
Company shall pay to the Buyer a structuring fee of Seventy Five Thousand
Dollars ($75,000) (the “Structuring
Fee”)
in
connection with this transaction which shall be paid on the First Closing Date
directly from the gross proceeds payable to the Company hereunder. The
structuring fee shall be deemed fully earned on the date hereof.
12
Upon
the
execution of this Agreement the Company shall issue to the Buyer a Promissory
Note (the “Promissory
Note”)
in the
amount of Two Hundred Forty Thousand Dollars ($240,000). The Promissory Note
shall be deemed fully earned as of the date hereof and any shares of Common
Stock issued pursuant to the Promissory Note shall have “piggy back”
registration rights.
The
Company shall be solely responsible for the contents of any such registration
statement, prospectus or other filing made with the SEC or otherwise used in
the
offering of the Company’s securities (except as such disclosure relates
solely to the Buyer and then only to the extent that such disclosure conforms
with information furnished in writing by the Buyer to the Company), even if
the
Buyer or its agents as an accommodation to the Company participate or assist
in
the preparation of such registration statement, prospectus or other SEC filing.
The Company shall retain its own legal counsel to review, edit, confirm and
do
all things such counsel deems necessary or desirable to such registration
statement, prospectus or other SEC filing to ensure that it does not contain
an
untrue statement or alleged untrue statement of material fact or omit or alleged
to omit a material fact necessary to make the statements made therein, in light
of the circumstances under which the statements were made, not misleading.
(h) Corporate
Existence.
So long
as any of the Convertible Debentures remain outstanding, the Company shall
not
directly or indirectly consummate any merger, reorganization, restructuring,
reverse stock split consolidation, sale of all or substantially all of the
Company’s assets or any similar transaction or related transactions (each such
transaction, an “Organizational
Change”)
unless, prior to the consummation an Organizational Change, the Company obtains
the written consent of each Buyer. In any such case, the Company will make
appropriate provision with respect to such holders’ rights and interests to
insure that the provisions of this Section 4(h) will thereafter be applicable
to
the Convertible Debentures.
(i) Transactions
With Affiliates.
So long
as any Convertible Debentures are outstanding, the Company shall not, and shall
cause each of its subsidiaries not to, enter into, amend, modify or supplement,
or permit any subsidiary to enter into, amend, modify or supplement any
agreement, transaction, commitment, or arrangement with any of its or any
subsidiary’s officers, directors, person who were officers or directors at any
time during the previous two (2) years, stockholders who beneficially own five
percent (5%) or more of the Common Stock, or Affiliates (as defined below)
or
with any individual related by blood, marriage, or adoption to any such
individual or with any entity in which any such entity or individual owns a
five
percent (5%) or more beneficial interest (each a “Related
Party”),
except for (a) customary employment arrangements and benefit programs on
reasonable terms, (b) any investment in an Affiliate of the Company, (c) any
agreement, transaction, commitment, or arrangement on an arms-length basis
on
terms no less favorable than terms which would have been obtainable from a
person other than such Related Party, (d) any agreement transaction, commitment,
or arrangement which is approved by a majority of the disinterested directors
of
the Company, for purposes hereof, any director who is also an officer of the
Company or any subsidiary of the Company shall not be a disinterested director
with respect to any such agreement, transaction, commitment, or arrangement.
“Affiliate”
for
purposes hereof means, with respect to any person or entity, another person
or
entity that, directly or indirectly, (i) has a ten percent (10%) or more equity
interest in that person or entity, (ii) has ten percent (10%) or more common
ownership with that person or entity, (iii) controls that person or entity,
or
(iv) shares common control with that person or entity. “Control”
or
“controls”
for
purposes hereof means that a person or entity has the power, direct or indirect,
to conduct or govern the policies of another person or entity.
13
(j) Transfer
Agent.
The
Company covenants and agrees that, in the event that the Company’s agency
relationship with the transfer agent should be terminated for any reason prior
to a date which is two (2) years after the Closing Date, the Company shall
immediately appoint a new transfer agent and shall require that the new transfer
agent execute and agree to be bound by the terms of the Irrevocable Transfer
Agent Instructions (as defined herein).
(k) Restriction
on Issuance of the Capital Stock.
So long
as any Convertible Debentures are outstanding, the Company shall not, without
the prior written consent of the Buyer(s), (i) issue or sell shares of Common
Stock or Preferred Stock without consideration or for a consideration per share
less than the Bid Price of the Common Stock determined immediately prior to
its
issuance, (ii) issue or sell any Preferred Stock, warrant, option, right,
contract, call, or other security instrument granting the holder thereof, the
right to acquire Common Stock without consideration or for a consideration
less
than such Common Stock’s Bid Price value determined immediately prior to it’s
issuance, (iii) enter into any security instrument granting the holder a
security interest in any and all assets of the Company, or (iv) file any
registration statement on Form S-8.
(l) Lock-up
Agreement.
On the
date hereof, the Company shall obtain from each officer and director of the
Company a lock-up agreement. Such lock-up agreement shall prohibit sales of
the
Company’s Common Stock for so long as any portion of the Convertible Debentures
are outstanding.
(m) No
Payment of Management Fees.Except
as
set forth in the Budget attached as Exhibit B hereto, The Company shall not
make
any payments of (i) salaries, management fees, commissions or any other
remuneration to officers or directors of the Company or any person or entity
that is an “affiliate” of any such person or entity (the “Management
Group”)
or
(ii) on any notes, accounts payable or other obligations or liabilities owed
to
any member of Management Group until the Registration Statement has been
effective (as declared by the Securities and Exchange Commission) for a period
of at least 90 days (the “Prohibition
Period”).
(n) No
Merger or Sale of Business.
For
so
long as the Convertible Debenture is outstanding, the Company hereby agrees
that
it will not merge or consolidate with any person or entity, or sell, lease
or
otherwise dispose of its assets other than in the ordinary course of business
involving an aggregate consideration of more than ten percent (10%) of the
book
value of its assets on a consolidated basis in any 12 month period, or
liquidate, dissolve, recapitalize or reorganize.
(o) No
Indebtedness.
For
so
long as the Convertible Debenture is outstanding, the Company shall not incur
any indebtedness for borrowed money or become a guarantor or otherwise
contingently liable for any such indebtedness except for trade payables or
purchase money obligations incurred in the ordinary course of
business.
14
(p) No
Other Registration Statements.
Except
for the filing of the registration statements contemplated in this transaction
or the Standby Equity Distribution Agreement of even date herewith (the
“Permitted
Registration Statements”),
for
so long as the Convertible Debenture is outstanding, the Company shall not
file
any other registration statements on any form (including but not limited to
forms X-0, XX-0, X-0 and S-8) without the prior written consent of the Buyer.
Further, the Company shall not register for sale or resale of any shares of
capital stock in the Permitted Registration Statements other than the capital
stock beneficially owned by the Buyer or to be issued to the Buyer upon
conversion of the Convertible Debentures, exercise of warrants or issuance
under
the Standby Equity Distribution Agreement of even date herewith.
(q) Capital
Structure of the Company.
The
Company agrees to change or modify its capital structure at the Buyer’s request,
which request may be made by the Buyer at any time or from time to time so
long
as such modification is permitted by laws of the State in which the Company
is
incorporated.
5. TRANSFER
AGENT INSTRUCTIONS.
The
Company shall issue the Irrevocable Transfer Agent Instructions to its transfer
agent irrevocably appointing Xxxxx Xxxxxxxx, Esq. as its agent for purpose
of
having certificates issued, registered in the name of the Buyer(s) or its
respective nominee(s), for the Conversion Shares representing such amounts
of
Convertible Debentures as specified from time to time by the Buyer(s) to the
Company upon conversion of the Convertible Debentures, for interest owed
pursuant to the Convertible Debenture, and for any and all Liquidated Damages
(as this term is defined in the Investor Registration Rights Agreement).
Yorkville Advisors Management, LLC shall be paid a cash fee of Fifty Dollars
($50) for every occasion they act pursuant to the Irrevocable Transfer Agent
Instructions. The Company shall not change its transfer agent without the
express written consent of the Buyer(s), which may be withheld by the Buyer(s)
in its sole discretion. Prior to registration of the Conversion Shares under
the
Securities Act, all such certificates shall bear the restrictive legend
specified in Section 2(g) of this Agreement. The Company warrants that no
instruction other than the Irrevocable Transfer Agent Instructions referred
to
in this Section 5, and stop transfer instructions to give effect to Section
2(g)
hereof (in the case of the Conversion Shares prior to registration of such
shares under the Securities Act) will be given by the Company to its transfer
agent and that the Conversion Shares shall otherwise be freely transferable
on
the books and records of the Company as and to the extent provided in this
Agreement and the Investor Registration Rights Agreement. Nothing in this
Section 5 shall affect in any way the Buyer’s obligations and agreement to
comply with all applicable securities laws upon resale of Conversion Shares.
If
the Buyer(s) provides the Company with an opinion of counsel, in form, scope
and
substance customary for opinions of counsel in comparable transactions to the
effect that registration of a resale by the Buyer(s) of any of the Conversion
Shares is not required under the Securities Act, the Company shall within two
(2) business days instruct its transfer agent to issue one or more certificates
in such name and in such denominations as specified by the Buyer. The Company
acknowledges that a breach by it of its obligations hereunder will cause
irreparable harm to the Buyer by vitiating the intent and purpose of the
transaction contemplated hereby. Accordingly, the Company acknowledges that
the
remedy at law for a breach of its obligations under this Section 5 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 5, that the Buyer(s) shall be
entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
15
6. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the Convertible Debentures
to the Buyer(s) at the Closings is subject to the satisfaction, at or before
the
Closing Dates, of each of the following conditions, provided that these
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion:
(a) Each
Buyer shall have executed this Agreement, the Security Agreement, the Escrow
Agreement and the Investor Registration Rights Agreement and the Irrevocable
Transfer Agent Instructions and delivered the same to the Company.
(b) The
Buyer(s) shall have delivered to the Escrow Agent the Purchase Price for
Convertible Debentures in respective amounts as set forth next to each Buyer
as
outlined on Schedule I attached hereto and the Escrow Agent shall have delivered
the net proceeds to the Company by wire transfer of immediately available U.S.
funds pursuant to the wire instructions provided by the Company.
(c) The
representations and warranties of the Buyer(s) shall be true and correct in
all
material respects as of the date when made and as of the Closing Dates as though
made at that time (except for representations and warranties that speak as
of a
specific date), and the Buyer(s) shall have performed, satisfied and complied
in
all material respects with the covenants, agreements and conditions required
by
this Agreement to be performed, satisfied or complied with by the Buyer(s)
at or
prior to the Closing Dates.
(d) The
Company shall have filed a form UCC -1 with regard to the Pledged Property
and
Pledged Collateral as detailed in the Security Agreement dated the date hereof
and provided proof of such filing to the Buyer(s).
7. CONDITIONS
TO THE BUYER’S OBLIGATION TO PURCHASE.
The
obligation of the Buyer(s) hereunder to purchase the Convertible Debentures
at
the Closing is subject to the satisfaction, at or before the Closing Date,
of
each of the following conditions, provided that these conditions are for the
Buyer’s sole benefit and may be waived by the Buyer(s) at any time in its sole
discretion:
(a) The
Company shall have executed this Agreement, the Security Agreement, the
Convertible Debenture, the Escrow Agreement, the Irrevocable Transfer
Instructions and the Investor Registration Rights Agreement, and delivered
the
same to the Buyer(s).
(b) With
regard to the Second Closing, the Company shall have filed a registration
statement with the SEC as described in the Investor Registration Rights
Agreement.
16
(c) The
representations and warranties of the Company shall be true and correct in
all
material respects (except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 3 above, in which
case, such representations and warranties shall be true and correct without
further qualification) as of the date when made and as of the Closing Dates
as
though made at that time (except for representations and warranties that speak
as of a specific date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the
Company at or prior to the Closing Dates. If requested by the Buyer, the Buyer
shall have received a certificate, executed by the President of the Company,
dated as of the Closing Dates, to the foregoing effect and as to such other
matters as may be reasonably requested by the Buyer including, without
limitation an update as of the Closing Dates regarding the representation
contained in Section 3(c) above.
(d) The
Company shall have executed and delivered to the Buyer(s) the Convertible
Debentures in the respective amounts set forth opposite each Buyer(s) name
on
Schedule I attached hereto.
(e) The
Buyer(s) shall have received an opinion of counsel in a form satisfactory to
the
Buyer(s).
(f) The
Company shall have provided to the Buyer(s) a certificate of good standing
from
the Secretary of State of Florida.
(g) As
of
each Closing Date, the Company shall have reserved out of its authorized and
unissued Common Stock, solely for the purpose of effecting the conversion of
the
Convertible Debentures, shares of Common Stock to effect the conversion of
all
of the Conversion Shares then outstanding.
(h) The
Irrevocable Transfer Agent Instructions, in form and substance satisfactory
to
the Buyer, shall have been delivered to and acknowledged in writing by the
Company’s transfer agent.
(i) The
Company shall have provided to the Buyer an acknowledgement, to the satisfaction
of the Buyer, from the Company’s independent certified public accountants, as to
its ability to provide all consents required in order to file a registration
statement in connection with this transaction.
(j) The
Company shall have filed a form UCC -1 with regard to the Pledged Property
and
Pledged Collateral as detailed in the Security Agreement and provided proof
of
such filing to the Buyer(s).
(k) The
Company shall have obtained the approval of its board of directors and a
majority of its outstanding shares of capital stock (voting as separate classes,
if required by applicable law) to increase its authorized common stock to a
number mutually acceptable to the Company and the Buyer.
8. INDEMNIFICATION.
17
(a) In
consideration of the Buyer’s execution and delivery of this Agreement and
acquiring the Convertible Debentures and the Conversion Shares hereunder, and
in
addition to all of the Company’s other obligations under this Agreement, the
Company shall defend, protect, indemnify and hold harmless the Buyer(s) and
each
other holder of the Convertible Debentures and the Conversion Shares, and
all of their officers, directors, employees and agents (including, without
limitation, those retained in connection with the transactions contemplated
by
this Agreement) (collectively, the “Buyer
Indemnitees”)
from
and against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Buyer Indemnitee is a party to the action
for
which indemnification hereunder is sought), and including reasonable attorneys’
fees and disbursements (the “Indemnified
Liabilities”),
incurred by the Buyer Indemnitees or any of them as a result of, or arising
out
of, or relating to (a) any misrepresentation or breach of any representation
or
warranty made by the Company in this Agreement, the Convertible Debentures
or
the Investor Registration Rights Agreement or any other certificate, instrument
or document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in this Agreement, or the
Investor Registration Rights Agreement or any other certificate, instrument
or
document contemplated hereby or thereby, or (c) any cause of action, suit or
claim brought or made against such Indemnitee and arising out of or resulting
from the execution, delivery, performance or enforcement of this Agreement
or
any other instrument, document or agreement executed pursuant hereto by any
of
the Indemnities, any transaction financed or to be financed in whole or in
part,
directly or indirectly, with the proceeds of the issuance of the Convertible
Debentures or the status of the Buyer or holder of the Convertible Debentures
the Conversion Shares, as a Buyer of Convertible Debentures in the Company.
To
the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities, which is permissible
under applicable law.
(b) In
consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Buyer’s other obligations under this Agreement, the Buyer
shall defend, protect, indemnify and hold harmless the Company and all of its
officers, directors, employees and agents (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the “Company
Indemnitees”)
from
and against any and all Indemnified Liabilities incurred by the Indemnitees
or
any of them as a result of, or arising out of, or relating to (a) any
misrepresentation or breach of any representation or warranty made by the
Buyer(s) in this Agreement, instrument or document contemplated hereby or
thereby executed by the Buyer, (b) any breach of any covenant, agreement or
obligation of the Buyer(s) contained in this Agreement, the Investor
Registration Rights Agreement or any other certificate, instrument or document
contemplated hereby or thereby executed by the Buyer, or (c) any cause of
action, suit or claim brought or made against such Company Indemnitee based
on
material misrepresentations or due to a material breach and arising out of
or
resulting from the execution, delivery, performance or enforcement of this
Agreement, the Investor Registration Rights Agreement or any other instrument,
document or agreement executed pursuant hereto by any of the Company
Indemnities. To the extent that the foregoing undertaking by each Buyer may
be
unenforceable for any reason, each Buyer shall make the maximum contribution
to
the payment and satisfaction of each of the Indemnified Liabilities, which
is
permissible under applicable law.
18
9. GOVERNING
LAW: MISCELLANEOUS.
(a) Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New Jersey without regard to the principles of conflict of laws.
The parties further agree that any action between them shall be heard
exclusively in Xxxxxx County, New Jersey, and expressly consent to the
jurisdiction and venue of the Superior Court of New Jersey, sitting in Xxxxxx
County and the United States District Court for the District of New Jersey
sitting in Newark, New Jersey for the adjudication of any civil action asserted
pursuant to this Paragraph.
(b) Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
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.
In
the event any signature page is delivered by facsimile transmission, the party
using such means of delivery shall cause four (4) additional original executed
signature pages to be physically delivered to the other party within five (5)
days of the execution and delivery hereof.
(c) Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d) Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Entire
Agreement, Amendments.
This
Agreement supersedes all other prior oral or written agreements between the
Buyer(s), the Company, their affiliates and persons acting on their behalf
with
respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision
of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
(f) Notices.
Any
notices, consents, waivers, or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered (i) upon receipt, when delivered personally; (ii) upon
confirmation of receipt, when sent by facsimile; (iii) three (3) days after
being sent by U.S. certified mail, return receipt requested, or (iv) one (1)
day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
19
|
If
to the Company, to:
|
Xxxxxxx,
Xxxxxxx Group, Inc.
|
|
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention: Xxxxxx
Xxx
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (212)
|
|
|
With
a copy to:
|
Xxxxxxx,
Savage, Kaplowitz, Wolf & Marcus LLP
|
|
000
Xxxxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000-0000
|
|
|
Attention:
Xxxxxx Xxxxxx, Esq.
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
If
to the Transfer Agent, to:
|
|
|
Attention:
|
|
|
Telephone: (
|
|
|
Facsimile: (
|
|
If
to the
Buyer(s), to its address and facsimile number on Schedule I, with copies to
the
Buyer’s counsel as set forth on Schedule I. Each party shall provide five (5)
days’ prior written notice to the other party of any change in address or
facsimile number.
(g) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. Neither the Company nor any Buyer
shall
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the other party hereto.
(h) No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
(i) Survival.
Unless
this Agreement is terminated under Section 9(l), the representations and
warranties of the Company and the Buyer(s) contained in Sections 2 and 3, the
agreements and covenants set forth in Sections 4, 5 and 9, and the
indemnification provisions set forth in Section 8, shall survive the Closing
for
a period of two (2) years following the date on which the Convertible Debentures
are converted in full. The Buyer(s) shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.
(j) Publicity.
The
Company and the Buyer(s) shall have the right to approve, before issuance any
press release or any other public statement with respect to the transactions
contemplated hereby made by any party; provided, however, that the Company
shall
be entitled, without the prior approval of the Buyer(s), to issue any press
release or other public disclosure with respect to such transactions required
under applicable securities or other laws or regulations (the Company shall
use
its best efforts to consult the Buyer(s) in connection with any such press
release or other public disclosure prior to its release and Buyer(s) shall
be
provided with a copy thereof upon release thereof).
20
(k) Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(l) Termination.
In the
event that the Closing shall not have occurred with respect to the Buyers on
or
before five (5) business days from the date hereof due to the Company’s or the
Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above
(and the non-breaching party’s failure to waive such unsatisfied condition(s)),
the non-breaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on such date without
liability of any party to any other party.
(m) No
Strict Construction.
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.
[REMAINDER
PAGE INTENTIONALLY LEFT BLANK]
21
IN
WITNESS WHEREOF,
the
Buyers and the Company have caused this Securities Purchase Agreement to be
duly
executed as of the date first written above.
|
COMPANY:
|
||
|
XXXXXXX,
XXXXXXX GROUP, INC.
|
||
| |
|
|
| By: | ||
|
|
||
|
Name: Xxxxxx
X. Xxx
|
||
|
Title: Chairman
& CEO
|
||
| THE BUYER’S(S’) SIGNATURES ARE | ||
| CONTAINED ON SCHEDULE I HERETO | ||
| |
|
|
22
EXHIBIT
A
DISCLOSURE
SCHEDULE
A-1
EXHIBIT
B
BUDGET
B-1
SCHEDULE
I
SCHEDULE
OF BUYERS
|
Name
|
Signature
|
Address/Facsimile
Number
of Buyer
|
Amount
of Subscription
|
||
|
Cornell
Capital Partners, LP
|
By:
|
Yorkville Advisors, LLC |
000
Xxxxxx Xxxxxx - Xxxxx 0000
|
$1,075,000
|
|
|
Its:
|
General Partner |
Xxxxxx
Xxxx, XX 00000
|
|||
|
Facsimile: (000)
000-0000
|
|||||
|
By:
|
With
a copy to:
|
||||
|
Name:
|
Xxxx X. Xxxxxx |
Xxxxxxx
Capital Partners, LP
|
|||
|
Its:
|
Portfolio Manager |
000
Xxxxxx Xxxxxx, Xxxxx 0000
|
|||
|
Xxxxxx
Xxxx, XX 00000
|
|||||
|
Attention: Xxxx
X. Xxxxx, Esq.
|
|||||
|
Facsimile: (000)
000-0000
|
I-1
