AGREEMENT
AGREEMENT
April 9,
2010
Xxxxxx
Capital Master Fund, Ltd.
0000
Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Dear Xx.
Xxxxx:
Reference
is hereby made to that certain Letter Agreement by and among Xxxxxx Xxxxxxx
(“Xxxxxxx”),
Xxxxxx Capital Master Fund, Ltd., (“Xxxxxx”) and ANAXMAR
Segregated Portfolio, dated April 28, 2009 (the “Letter Agreement”),
whereby, among other things, Xxxxxxx has been given the option to pay the Xxxxxx
Fee and satisfy in full his obligations to Xxxxxx under the Letter Agreement by
returning the NBLM Shares to Xxxxxx, provided that Xxxxxx shall have returned to
Xxxxxxx the stock certificate evidencing the Series B Preferred Stock (with the
appropriate stock powers). This agreement confirms that Xxxxxxx has
elected to assign and transfer to Xxxxxx the NBLM Shares owned by Xxxxxxx to
fully satisfy his obligations to Xxxxxx under the Letter Agreement and that
Xxxxxx in return hereby assigns and transfers to Xxxxxxx the Series B Preferred
Stock, on the terms and conditions set forth herein. Capitalized terms used
herein and not defined shall have the meanings ascribed to them in the Letter
Agreement.
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1.
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Transfer
of NBLM Shares. By executing this agreement and delivering the
stock certificate representing the Noble Shares with the executed stock
power in the form attached hereto as Exhibit A (or a Affidavit of Lost
Certificate acceptable to Xxxxxx), Xxxxxxx hereby assigns and transfers to
Xxxxxx 3,978,600 shares of common stock of Noble Medical Technologies,
Inc. owned by Xxxxxxx.
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2.
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Transfer
of the Series B Preferred Stock. By executing this
agreement and delivering the stock certificate representing the Series B
Preferred Stock with the executed stock power in the form attached hereto
as Exhibit
B, Xxxxxx hereby assigns and transfers to Xxxxxxx the Series B
Preferred Stock owned by Xxxxxx and any of its
investors.
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3.
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Termination
of Letter Agreement. Xxxxxx and Xxxxxxx
hereby acknowledge and agree that Xxxxxx and Xxxxxxx have fully satisfied
their obligations to each other under the Letter Agreement and that the
Letter Agreement has no further force or effect as of the date
hereof.
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4.
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Representations
and Warranties of Xxxxxx. Xxxxxx is the owner
of the Series B Preferred Stock and has the full legal right, sole power
and authority over the disposition of the Series B Preferred
Stock. The Series B Preferred Stock is free and clear of any
liens, claims, encumbrances, charges, options or rights of third parties
with respect thereto. The Series B Preferred Stock has not been
sold, conveyed, encumbered, hypothecated or otherwise transferred by
Xxxxxx except pursuant to this agreement. Xxxxxx has the legal
right to enter into and to consummate the transactions contemplated hereby
and otherwise to carry out its obligations hereunder. This
agreement constitutes the valid and binding obligation of
Xxxxxx. The execution, delivery and performance by the Xxxxxx
of this agreement does not violate any contractual restriction contained
in any agreement which binds or affects or purports to bind or affect
Xxxxxx. Xxxxxx is not a party to any agreement, written or oral, creating
rights in respect of any of such Series B Preferred Stock in any third
party. Xxxxxx is not a party to any outstanding or authorized
options, warrants, rights, calls, commitments, conversion rights, rights
of exchange or other agreements of any character, contingent or otherwise,
providing for the purchase, issuance or sale of any of the Series B
Preferred Stock, and there are no restrictions of any kind on the transfer
of any of the Series B Preferred Stock other than (a) restrictions on
transfer imposed by the Securities Act of 1933, as amended (the
“Securities Act”) and (b) restrictions on transfer imposed by applicable
state securities or “blue sky”
laws.
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5.
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Representations
and Warranties of Xxxxxxx. Xxxxxxx
is the owner of the NBLM Shares and has the full legal right, sole power
and authority over the disposition of the NBLM Shares. The NBLM
Shares are free and clear of any liens, claims, encumbrances, charges,
options or rights of third parties with respect thereto. The
NBLM Shares have not been sold, conveyed, encumbered, hypothecated or
otherwise transferred by Xxxxxxx except pursuant to this
agreement. Xxxxxxx has the legal right to enter into and to
consummate the transactions contemplated hereby and otherwise to carry out
his obligations hereunder. This agreement constitutes the valid
and binding obligation of Xxxxxxx. The execution, delivery and
performance by the Xxxxxxx of this agreement does not violate any
contractual restriction contained in any agreement which binds or affects
or purports to bind or affect Xxxxxxx. Xxxxxxx is not a party
to any agreement, written or oral, creating rights in respect of any of
such NBLM Shares in any third party. Xxxxxxx is not a party to
any outstanding or authorized options, warrants, rights, calls,
commitments, conversion rights, rights of exchange or other agreements of
any character, contingent or otherwise, providing for the purchase,
issuance or sale of any of the NBLM Shares, and there are no restrictions
of any kind on the transfer of any of the NBLM Shares other than (a)
restrictions on transfer imposed by the Securities Act of 1933, as amended
(the “Securities Act”) and (b) restrictions on transfer imposed by
applicable state securities or “blue sky”
laws.
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6.
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Miscellaneous.
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A.
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The
terms, provisions and conditions of this agreement are solely for the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns and no other person or entity shall acquire or have a
right by virtue of this agreement. This agreement may not be
assigned by any party without prior written consent of the other
parties.
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B.
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This
agreement contains the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and all prior
writings and discussions are hereby merged into this
agreement. No provision of this agreement may be waived or
amended except in a writing signed by the parties. A waiver or amendment
of any term or provision of this agreement shall not be construed as a
waiver or amendment of any other term or
provision.
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C.
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Each
party represents and warrants that it will comply with all applicable
federal and state securities and all other federal, state or local laws,
rules and regulations relating hereto and that it shall not circumvent or
frustrate the intent of this
agreement.
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D.
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Each
party will indemnify, defend and hold harmless the other party from and
against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities (whether absolute, accrued, contingent or
otherwise), costs and expenses, including, but not limited to, interest,
penalties and reasonable attorneys’ fees and expenses (collectively,
“Losses”), asserted against, imposed upon or incurred by the other party,
directly or indirectly, by reason of or resulting from or relating to the
breach of any representation, warranty, covenant contained in this
agreement, regardless of whether such Losses arise as a result of the
negligence, strict liability or any other liability imposed under any
theory of law or equity, or violation of any law by, the indemnifying
party.
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E.
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This
agreement may be executed by facsimile signatures and in multiple
counterparts, each of which shall be deemed an original. It shall not be
necessary that each party executes each counterpart, or that any one
counterpart be executed by more than one party so long as each party
executes at least one counterpart.
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F.
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This
agreement shall be governed by and constructed under the laws of the State
of Delaware without regard to such state’s conflicts of law principles,
and may be amended, modified or supplemented only by written instrument
executed by parties hereto.
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If the
foregoing correctly sets forth the entire understanding and agreement between
the us, please so indicate by executing this agreement as indicated below and
returning an executed copy, whereupon this agreement shall constitute a binding
agreement as of the date first above written.
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Very
truly yours,
/s/ Xxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
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ACCEPTED
AND AGREED TO:
Xxxxxx
Capital Master Fund, Ltd.
By: Xxxxxx X.
Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Director
