NOBLE MEDICAL TECHNOLOGIES, INC. SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (the “Agreement”) is made as of
January 24, 2011 by and between NOBLE MEDICAL TECHNOLOGIES, INC., a Delaware
corporation (the “Company”) and XXXX XXXXXXXX
(“Purchaser”).
RECITALS
The
Company desires to issue and sell and the Purchaser desires to purchase a senior
promissory note in substantially the form attached to this Agreement as Exhibit A (“Note”) and a warrant in
substantially the form attached to this Agreement as Exhibit B (“Warrant”) to purchase shares
of the Company’s common stock (the “Common Stock”) on the terms
stated therein. The Note, the Warrant, and the Common Stock issuable
upon exercise of the Warrant are collectively referred to herein as the “Securities.”
AGREEMENT
In
consideration of the mutual promises contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties to
this Agreement agree as follows:
SECTION
1
PURCHASE
AND SALE OF THE NOTE
1.1 Sale and Issuance of the
Note. Subject to the terms and conditions of this Agreement,
each Purchaser agrees to purchase at the Closing and the Company agrees to sell
and issue to Purchaser a Note in the principal amount of $50,000 and a Warrant
exercisable into 166,166 shares of Common Stock. The purchase price
of the Note and the Warrant shall be equal to 100% of the principal amount of
such Note.
1.2 Closing;
Delivery.
(a) The
purchase, sale and issuance of the Note and Warrant shall take place at the
offices of Xxxxxxxxx Xxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx, at 10:00 a.m., on the date first set forth above, or at such other
time and place as the Company and the Purchaser mutually agree upon, orally or
in writing. At the Closing, the Company shall deliver to the
Purchaser the Note and the Warrant against payment of the purchase price
therefor by wire transfer to the following account.
1
SECTION
2
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company hereby represents and warrants to the Purchaser that:
2.1 Organization, Good Standing and
Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its business as
now conducted and as proposed to be conducted.
2.2 Authorization. All
corporate action on the part of the Company necessary for the authorization,
execution and delivery of this Agreement and the authorization, sale, issuance
and delivery of the Note and the Warrant and the shares of the Company’s Common
Stock issuable on conversion or exercise of the Warrant, and the performance of
all obligations of the Company under this Agreement, the Note and the Warrant
has been taken or will be taken prior to the Closing. The Agreement
and the Note and the Warrant, when executed and delivered by the Company, shall
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general application affecting enforcement of
creditors’ rights generally, as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable
remedies.
SECTION
3
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to the Company that:
3.1 Purchase Entirely for Own
Account. The Securities to be acquired by the Purchaser will
be acquired for investment for the Purchaser’s own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and the Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Purchaser
has not been formed for the specific purpose of acquiring any of the
Securities.
3.2 Knowledge. The
Purchaser is aware of the Company’s business affairs and financial condition and
has acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the securities.
3.3 Investment
Experience. The Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company and acknowledges that the Purchaser can protect
its own interests. The Purchaser has such knowledge and experience in
financial and business matters so that the Purchaser is capable of evaluating
the merits and risks of its investment in the Company.
3.4 Speculative Nature of
Investment. The Purchaser understands and acknowledges that
the Company has a limited financial and operating history and that an investment
in the Company is highly speculative and involves substantial
risks. The Purchaser can bear the economic risk of the investment and
is able, without impairing the Purchaser’s financial condition, to hold the
Securities for an indefinite period of time and to suffer a complete loss of the
investment.
2
3.5 Restricted
Securities. The Purchaser understands that the Securities have
not been, and will not be, registered under the Securities Act of 1933, as
amended (the “Act”), by
reason of a specific exemption from the registration provisions of the Act which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of the Purchaser’s representations as expressed
herein. The Purchaser understands that the Securities are “restricted securities” under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold the Securities indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for
resale. The Purchaser further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of the Purchaser’s control, and which the Company is under no
obligation and may not be able to satisfy.
3.6 No Public
Market. The Purchaser understands that no public market now
exists for any of the securities issued by the Company, that the Company has
made no assurances that a public market will ever exist for the
Securities.
3.7 Legends. The
Purchaser understands that the Securities, and any securities issued in respect
thereof or exchange therefor, may bear one or more of one the following
legends:
(a) “THE
SECURITIES REPRESENTED BY THIS INSTRUMENT [OR CERTIFICATE] HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT
WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT OR SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT
BETWEEN THE ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A
COPY OF WHICH IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED
BY THIS INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE
WITH SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE
WITH SAID AGREEMENT WILL BE VOID.”
(b) Any
legend required by the Blue Sky laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
3.8 Accredited
Investor. The Purchaser is an accredited investor as defined
in Rule 501(a) of Regulation D promulgated under the Act.
3
SECTION
4
CONDITIONS
OF THE PURCHASER’S OBLIGATIONS AT CLOSING
The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 Representations and
Warranties. The representations and warranties of the Company
contained in Section
2 shall be true on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Closing.
4.2 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall be obtained and effective as of the Closing.
SECTION
5
CONDITIONS
OF THE COMPANY’S OBLIGATIONS AT CLOSING
The
obligations of the Company to each Purchaser under this Agreement are subject to
the fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 Representations and
Warranties. The representations and warranties of each
Purchaser contained in Section 3 shall be
true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the
Closing.
5.2 Qualifications. All
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Securities pursuant to this
Agreement shall be obtained and effective as of the Closing.
SECTION
6
MISCELLANEOUS.
6.1 Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
6.2 Governing Law. This
Agreement will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State. Each of the Company and the Purchaser agrees to
submit to the exclusive jurisdiction and venue of the United States District
Court for the Southern District of New York for any civil action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. To the extent permitted by applicable law, each
of the Company and the Purchaser hereby unconditionally waives trial by jury in
any civil legal action or proceeding relating to the Agreement or the
transactions contemplated hereby or thereby.
4
6.3 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
6.4 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
6.5 Amendments and
Waivers. Any term of this Agreement may be amended or waived
only with the written consent of the Company and the Purchaser.
6.6 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith,
in order to maintain the economic position enjoyed by each party as close as
possible to that under the provision rendered unenforceable. In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
6.7 Entire
Agreement. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
existing between the parties hereto are expressly canceled.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement as of the date first written above.
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COMPANY:
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NOBLE
MEDICAL
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TECHNOLOGIES,
INC.
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By
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/s/ Xxxxxx Xxxxx | |
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Xxxxxx
Xxxxx,
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Chief
Executive Officer
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PURCHASER:
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| /s/ Xxxx Xxxxxxxx | ||
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Xxxx
Xxxxxxxx
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EXHIBIT
A
PROMISSORY
NOTE
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE
ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH
IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS
INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH
SAID AGREEMENT WILL BE VOID.
SENIOR
PROMISSORY NOTE
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US
$50,000
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January
24, 2011
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Principal
Amount
Noble
Medical Group, a Delaware corporation (the “Company”), for value received,
hereby promises to pay to the order of Xxxx Xxxxxxxx or his registered permitted
assigns (“Holder”) on January 23, 2012 or when sooner declared due and payable
in accordance herewith (the “Maturity Date”) the sum of US $50,000 (the
“Principal Amount”). The unpaid principal balance of this Senior
Promissory Note (this “Note”) at any time, together with all accrued and unpaid
interest thereon at such time, is referred to herein as the “Note
Amount.” This Note is insured pursuant to that certain Securities
Purchase Agreement dated January 24, 2011, between the Company and the Holder
(“Purchase Agreement”). Any terms not defined in this Note shall have
the meaning set forth in the Purchase Agreement unless otherwise
indicated.
1. Interest. Subject to
Section 4 hereof, interest shall accrue on the outstanding Principal Amount at
the rate of 10% per annum from the date hereof. All such interest
shall be calculated on the basis of a 360-day year of twelve 30-day months and
shall be payable annually in arrears on the anniversary date of the issuance of
this Note. Payment shall be made at the registered address of the
Holder appearing in the records of the Company.
2. Voluntary
Prepayment. The Company may prepay this Note in whole or in
part without penalty or premium.
3. Event of
Default. Upon the occurrence of any Event of Default (as
defined herein), this Note, upon written notice to the Company, shall forthwith
be immediately due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived, and the
Holder may exercise any and all rights and remedies available to it under this
Note or as provided by law. An “Event of Default” shall mean the
occurrence of any of the following events:
1
(a) Failure to
Pay. Company shall fail to pay (i) when due any principal or
interest payment on the due date hereunder or (ii) any other payment required
under the terms of this Note on the date due and such payment shall not have
been made within five (5) days of Company’s receipt of Investor’s written notice
to Company of such failure to pay; or
(b) Breaches of
Covenants. Company shall fail to observe or perform any other
covenant, obligation, condition or agreement contained in this Note or the
Purchase Agreement (other than those specified in Section 3(a)) and (i) such
failure shall continue for fifteen (15) days, or (ii) if such failure is not
curable within such fifteen (15) day period, but is reasonably capable of cure
within thirty (30) days, either (A) such failure shall continue for thirty (30)
days or (B) Company shall not have commenced a cure in a manner reasonably
satisfactory to Investor within the initial fifteen (15) day period;
or
(c) Representations and
Warranties. Any representation or warranty made or furnished
by or on behalf of Company to the Holder in the Purchase Agreement, shall be
false, incorrect, incomplete or misleading in any material respect when made or
furnished; or
(d) Voluntary Bankruptcy or
Insolvency Proceedings. Company shall (i) apply for or consent
to the appointment of a receiver, trustee, liquidator or custodian of itself or
of all or a substantial part of its property, (ii) be unable, or admit in
writing its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of its or any of its creditors, (iv) be
dissolved or liquidated, (v) become insolvent (as such term may be defined or
interpreted under any applicable statute), (vi) commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (vii) take any
action for the purpose of effecting any of the foregoing; or
(e) Involuntary Bankruptcy or
Insolvency Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of Company of all or a substantial
part of the property thereof, or an involuntary case or other proceedings
seeking liquidation, reorganization or other relief with respect to Company or
any of its Subsidiaries or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and an order for
relief entered or such proceeding shall not be dismissed or discharged within
thirty (30) days of commencement.
2
4. Default Rate;
Usury. During any period in which an Event of Default has
occurred and is continuing, Company shall pay interest on the unpaid principal
balance hereof at a rate per annum equal to the rate otherwise applicable
hereunder plus five percent (5%). In the event any interest is paid
on this Note which is deemed to be in excess of the then legal maximum rate,
then that portion of the interest payment representing an amount in excess of
the then legal maximum rate shall be deemed a payment of principal and applied
against the principal of this Note.
5. Miscellaneous. The
Company waives the rights of presentment, demand for performance, protest,
notice of protest, and notice of dishonor. No delay on the part of
the Holder in exercising any right hereunder shall operate as waiver of such
right under this Note.
6. Governing
Law. This Note will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State. Each of the Company and the
Holder agrees to submit to the exclusive jurisdiction and venue of the United
States District Court for the Southern District of New York for any civil
action, suit or proceeding arising out of or relating to this Note or the
transactions contemplated hereby. To the extent permitted by
applicable law, each of the Company and the Holder hereby unconditionally waives
trial by jury in any civil legal action or proceeding relating to the Note or
the transactions contemplated hereby or thereby.
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By:
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/s/ Xxxxxx Xxxxx |
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Xxxxxx
Xxxxx
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Chief
Executive Officer
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3
EXHIBIT
B
FORM
OF WARRANT
WARRANT
TO PURCHASE COMMON STOCK
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION
STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS. THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON
TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE AGREEMENT BETWEEN THE
ISSUER OF THESE SECURITIES AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH
IS ON FILE WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS
INSTRUMENT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
SAID AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH
SAID AGREEMENT WILL BE VOID.
WARRANT
to
purchase
166,666
Shares
of Common Stock
Issue
Date: January 24, 2011
1. Definitions. Unless
the context otherwise requires, when used herein the following terms shall have
the meanings indicated.
“Board of Directors” means the
board of directors of the Company, including any duly authorized committee
thereof.
“Business Combination” means a
merger, consolidation, statutory share exchange or similar transaction that
requires the approval of the Company’s stockholders.
“business day” means any day
except Saturday, Sunday and any day on which banking institutions in the State
of New York generally are authorized or required by law or other governmental
actions to close.
“Capital Stock” means (A) with
respect to any Person that is a corporation or company, any and all shares,
interests, participations or other equivalents (however designated) of capital
or capital stock of such Person and (B) with respect to any Person that is not a
corporation or company, any and all partnership or other equity interests of
such Person.
“Charter” means, with respect
to any Person, its certificate or articles of incorporation, articles of
association, or similar organizational document.
“Common Stock” means the
Common Stock of the Company.
“Company” means Noble Medical
Technologies, Inc.
“conversion” has the meaning
set forth in Section 13(B).
1
“convertible securities” has
the meaning set forth in Section 13(B).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor statute, and the
rules and regulations promulgated thereunder.
“Exercise Price” means ten
cents ($.10) per share, subject to adjustment.
“Expiration Time” has the
meaning set forth in Section 3.
“Funding Event” means the
closing of a capital raise transaction by the Company that raises
$1 million or more of net proceeds for the Company from the issuance
of preferred stock, Common Stock or any other security convertible
into Common Stock or preferred stock.
“Fair Market Value” means,
with respect to any security or other property, the fair market value of such
security or other property as determined by the Board of Directors, acting in
good faith.
“Initial Number” has the
meaning set forth in Section 13(B).
“Issue Date” means January 24,
2011.
“Liquidity Event” means any of
the following: (i) the merger or consolidation of the Company with or
into any other corporation or business entity (except on in which the holders of
capital stock of the Company immediately prior to such merger or consolidation
continue to hold at least a majority of the Voting Stock of the surviving
corporation); (ii) the sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all
assets of the Company; or (iii) the acquisition by any person or any group of
persons (other than the Company, any of its direct or indirect subsidiaries, or
any trustee, fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company or any of its direct or indirect
subsidiaries) acting together in any transaction or related series of
transactions, of such number of shares of the Company’s Voting Stock as causes
such person or group of persons to own beneficially, directly or indirectly, as
of the time immediately after such transaction or series of transactions, 50% or
more of the combined voting power of the Voting Stock of the
Company.
“Market Price” means, with
respect to a particular security, on any given day, the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the last closing bid and ask prices regular way, in either case on
the principal national securities exchange on which the applicable securities
are listed or admitted to trading, or if not listed or admitted to trading on
any national securities exchange, the average of the closing bid and ask prices
as furnished by two members of the Financial Industry Regulatory Authority,
Inc. selected from time to time by the Company for that
purpose. “Market Price” shall be determined without reference to
after hours or extended hours trading. If such security is not listed
and traded in a manner that the quotations referred to above are available for
the period required hereunder, the Market Price per share of Common Stock shall
be deemed to be (i) in the event that any portion of the Warrant is held by the
Warrantholder, the fair market value per share of such security as determined in
good faith by the Warrantholder or (ii) in all other circumstances, the fair
market value per share of such security as determined in good faith by the Board
of Directors in reliance on an opinion of a nationally recognized independent
investment banking corporation retained by the Company for this purpose and
certified in a resolution to the Warrantholder. For the purposes of
determining the Market Price of the Common Stock on the “trading day” preceding,
on or following the occurrence of an event, (i) that trading day shall be deemed
to commence immediately after the regular scheduled closing time of trading on
the New York Stock Exchange or, if trading is closed at an earlier time, such
earlier time and (ii) that trading day shall end at the next regular scheduled
closing time, or if trading is closed at an earlier time, such earlier time (for
the avoidance of doubt, and as an example, if the Market Price is to be
determined as of the last trading day preceding a specified event and the
closing time of trading on a particular day is 4:00 p.m. and the specified event
occurs at 5:00 p.m. on that day, the Market Price would be determined
by reference to such 4:00 p.m. closing price).
2
“Ordinary Cash Dividends”
means a regular quarterly cash dividend on shares of Common Stock out of surplus
or net profits legally available therefor (determined in accordance with
generally accepted accounting principles in effect from time to
time).
“Permitted Transactions” has
the meaning set forth in Section 13(B).
“Person” has the meaning given
to it in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act.
“Per Share Fair Market Value”
has the meaning set forth in Section 13(C).
“SEC” means the
U.S. Securities and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended, or any successor statute, and the rules and
regulations promulgated thereunder.
“Shares” has the meaning set
forth in Section 2.
“trading day” means (A) if the
shares of Common Stock are not traded on any national or regional securities
exchange or association or over-the-counter market, a business day or (B) if the
shares of Common Stock are traded on any national or regional securities
exchange or association or over-the-counter market, a business day on which such
relevant exchange or quotation system is scheduled to be open for business and
on which the shares of Common Stock (i) are not suspended from trading on any
national or regional securities exchange or association or over-the-counter
market for any period or periods aggregating one half hour or longer; and (ii)
have traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the shares of Common Stock.
“Voting Stock” means the
outstanding securities having the right to vote in an election of the board of
directors.
“Vested Shares” has the
meaning set forth in Section 3.
“Warrantholder” has the
meaning set forth in Section 2.
“Warrant” means this Warrant,
issued pursuant to the Management Agreement.
2. Number of Shares; Exercise
Price. This certifies that, for value received, Xxxx Xxxxxxxx,
or his permitted assigns (the “Warrantholder”) is entitled,
upon the terms and subject to the conditions hereinafter set forth, to acquire
from the Company, in whole or in part, up to an aggregate of 166,666 fully paid
and nonassessable shares of Common Stock, at a purchase price per share of
Common Stock equal to the Exercise Price. The number of shares of
Common Stock (the “Shares”) and the Exercise
Price are subject to adjustment as provided herein, and all references to
“Common Stock,” “Shares” and “Exercise Price” herein shall be deemed to include
any such adjustment or series of adjustments.
3
3. Exercise of Warrant,
Term. Subject to Section 2, to the extent permitted by
applicable laws and regulations, the right to purchase the Shares represented by
this Warrant shall become exercisable in accordance with the following
schedule: (a) twenty percent (20%) of the Shares represented by this
Warrant shall first become exercisable on February 1, 2011, and (b) the
remaining eighty percent (80%) of the Shares represented by this Warrant shall
first become exercisable on January 1, 2012, provided however, upon a
Liquidity Event or Funding Event this Warrant shall become exercisable as to all
of the Shares. This Warrant is exercisable in whole or in part by the
Warrantholder, in the manner set forth above, and after the execution and
delivery of this Warrant by the Company on the date hereof, but in no event
later than 5:00 p.m., New York City time on the tenth anniversary of the Issue
Date (the “Expiration
Time”), by (A) the surrender of this Warrant and Notice of Exercise
annexed hereto, duly completed and executed on behalf of the Warrantholder, at
the principal executive office of the Company, and (B) payment of the Exercise
Price for the Shares thereby purchased:
(i) by
having the Company withhold, from the shares of Common Stock that would
otherwise be delivered to the Warrantholder upon such exercise, shares of Common
Stock issuable upon exercise of the Warrant equal in value to the aggregate
Exercise Price as to which this Warrant is so exercised based on the Market
Price of the Common Stock on the trading day on which this Warrant is exercised
and the Notice of Exercise is delivered to the Company pursuant to this Section
3, or
(ii) by
tendering in cash, by certified or cashier’s check payable to the order of the
Company, or by wire transfer of immediately available funds to an account
designated by the Company, or
(iii) by
any combination of (i) and (ii).
If the
Warrantholder does not exercise this Warrant in its entirety, the Warrantholder
will be entitled to receive from the Company within a reasonable time, and in
any event not exceeding three business days, a new warrant in substantially
identical form for the purchase of that number of Shares equal to the difference
between the number of Shares subject to this Warrant and the number of Shares as
to which this Warrant is so exercised.
4. Issuance of Shares;
Authorization; Listing. Certificates for Shares issued upon
exercise of this Warrant will be issued in such name or names as the
Warrantholder may designate and will be delivered to such named Person or
Persons within a reasonable time, not to exceed three business days after the
date on which this Warrant has been duly exercised in accordance with the terms
of this Warrant. The Company hereby represents and warrants that any
Shares issued upon the exercise of this Warrant in accordance with the
provisions of Section 3 will be duly and validly authorized and issued, fully
paid and nonassessable and free from all taxes, liens and charges (other than
liens or charges created by the Warrantholder, income and franchise taxes
incurred in connection with the exercise of the Warrant or taxes in respect of
any transfer occurring contemporaneously therewith). The Company
agrees that the Shares so issued will be deemed to have been issued to the
Warrantholder as of the close of business on the date on which this Warrant and
payment of the Exercise Price are delivered to the Company in accordance with
the terms of this Warrant, notwithstanding that the stock transfer books of the
Company may then be closed or certificates representing such Shares may not be
actually delivered on such date. The Company will at all times
reserve and keep available, out of its authorized but unissued Common Stock,
solely for the purpose of providing for the exercise of this Warrant, the
aggregate number of shares of Common Stock then issuable upon exercise of this
Warrant at any time. The Company will (A) procure, at its sole
expense, the listing of the Shares issuable upon exercise of this Warrant at any
time, subject to issuance or notice of issuance, on all principal stock
exchanges on which the Common Stock is then listed or traded and (B) maintain
such listings of such Shares at all times after issuance. The Company
will use reasonable best efforts to ensure that the Shares may be issued without
violation of any applicable law or regulation or of any requirement of any
securities exchange on which the Shares are listed or traded.
4
5. No Fractional Shares or
Scrip. No fractional Shares or scrip representing fractional
Shares shall be issued upon any exercise of this Warrant. In lieu of
any fractional Share to which the Warrantholder would otherwise be entitled, the
Warrantholder shall be entitled to receive a cash payment equal to the Market
Price of the Common Stock on the last trading day preceding the date of exercise
less the pro-rated Exercise Price for such fractional share.
6. No Rights as Stockholders;
Transfer Books. This Warrant does not entitle the
Warrantholder to any voting rights or other rights as a stockholder of the
Company prior to the date of exercise hereof. The Company will at no
time close its transfer books against transfer of this Warrant in any manner
which interferes with the timely exercise of this Warrant.
7. Charges, Taxes and
Expenses. Issuance of certificates for Shares to the
Warrantholder upon the exercise of this Warrant shall be made without charge to
the Warrantholder for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificates, all of which taxes and expenses
shall be paid by the Company.
8. Transfer/Assignment.
(A) Subject
to compliance with clause (B) of this Section 8, this Warrant and all rights
hereunder are transferable, in whole or in part, upon the books of the Company
by the registered holder hereof in person or by duly authorized attorney, and a
new warrant shall be made and delivered by the Company, of the same tenor and
date as this Warrant but registered in the name of one or more transferees, upon
surrender of this Warrant, duly endorsed, to the office or agency of the Company
described in Section 3. All expenses (other than stock transfer
taxes) and other charges payable in connection with the preparation, execution
and delivery of the new warrants pursuant to this Section 8 shall be paid by the
Company.
(B) The
transfer of the Warrant and the Shares issued upon exercise of the Warrant are
subject to any restrictions on transfer imposed by applicable securities
laws.
9. Exchange and Registry of
Warrant. This Warrant is exchangeable, upon the surrender
hereof by the Warrantholder to the Company, for a new warrant or warrants of
like tenor and representing the right to purchase the same aggregate number of
Shares. The Company shall maintain a registry showing the name and
address of the Warrantholder as the registered holder of this
Warrant. This Warrant may be surrendered for exchange or exercise in
accordance with its terms, at the office of the Company, and the Company shall
be entitled to rely in all respects, prior to written notice to the contrary,
upon such registry.
10. Loss, Theft, Destruction or
Mutilation of Warrant. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and in the case of any such loss, theft or destruction, upon
receipt of a bond, indemnity or security reasonably satisfactory to the Company,
or, in the case of any such mutilation, upon surrender and cancellation of this
Warrant, the Company shall make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of Shares as provided for in such
lost, stolen, destroyed or mutilated Warrant.
5
11. Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall not
be a business day, then such action may be taken or such right may be exercised
on the next succeeding day that is a business day.
12. Rule 144
Information. The Company covenants that it will use its
reasonable best efforts to timely file all reports and other documents required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations promulgated by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Warrantholder,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 under the Securities Act), and it will use reasonable best efforts
to take such further action as any Warrantholder may reasonably request, in each
case to the extent required from time to time to enable such holder to, if
permitted by the terms of this Warrant and the Purchase Agreement, sell this
Warrant without registration under the Securities Act within the limitation of
the exemptions provided by (A) Rule 144 under the Securities Act, as such rule
may be amended from time to time, or (B) any successor rule or regulation
hereafter adopted by the SEC. Upon the written request of any
Warrantholder, the Company will deliver to such Warrantholder a written
statement that it has complied with such requirements.
13. Adjustments and Other
Rights. The Exercise Price and the number of Shares issuable
upon exercise of this Warrant shall be subject to adjustment from time to time
as follows; provided, that if more than one subsection of this Section 13 is
applicable to a single event, the subsection shall be applied that produces the
largest adjustment and no single event shall cause an adjustment under more than
one subsection of this Section 13 so as to result in duplication:
(A) Stock Splits, Subdivisions,
Reclassifications or Combinations. If the Company shall (i)
declare and pay a dividend or make a distribution on its Common Stock in shares
of Common Stock, (ii) subdivide or reclassify the outstanding shares of Common
Stock into a greater number of shares, or (iii) combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares, the number
of Shares issuable upon exercise of this Warrant at the time of the record date
for such dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
Warrantholder after such date shall be entitled to purchase the number of shares
of Common Stock which such holder would have owned or been entitled to receive
in respect of the shares of Common Stock subject to this Warrant after such date
had this Warrant been exercised immediately prior to such date. In
such event, the Exercise Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be adjusted to the number obtained by dividing (x) the
product of (1) the number of Shares issuable upon the exercise of this Warrant
before such adjustment and (2) the Exercise Price in effect immediately prior to
the record or effective date, as the case may be, for the dividend,
distribution, subdivision, combination or reclassification giving rise to this
adjustment by (y) the new number of Shares issuable upon exercise of the Warrant
determined pursuant to the immediately preceding sentence.
(B) Certain Issuances of Common
Shares or Convertible Securities. If the Company shall issue
shares of Common Stock (or rights or warrants or other securities exercisable or
convertible into or exchangeable (collectively, a “conversion”) for shares of
Common Stock) (collectively, “convertible securities”)
(other than in Permitted Transactions (as defined below) or a transaction to
which subsection (A) of this Section 13 is applicable) without consideration or
at a consideration per share (or having a conversion price per share) that is
less than 100% of the Market Price on the last trading day preceding the date of
the agreement on pricing such shares (or such convertible securities) then, in
such event:
6
(A) the
number of Shares issuable upon the exercise of this Warrant immediately prior to
the date of the agreement on pricing of such shares (or of such convertible
securities) (the “Initial
Number”) shall be increased to the number obtained by multiplying the
Initial Number by a fraction (A) the numerator of which shall be the sum of (x)
the number of shares of Common Stock of the Company outstanding on such date and
(y) the number of additional shares of Common Stock issued (or into which
convertible securities may be exercised or convert) and (B) the denominator of
which shall be the sum of (I) the number of shares of Common Stock outstanding
on such date and (II) the number of shares of Common Stock which the aggregate
consideration receivable by the Company for the total number of shares of Common
Stock so issued (or into which convertible securities may be exercised or
convert) would purchase at the Market Price on the last trading day preceding
the date of the agreement on pricing such shares (or such convertible
securities); and
(B) the
Exercise Price payable upon exercise of the Warrant shall be adjusted by
multiplying such Exercise Price in effect immediately prior to the date of the
agreement on pricing of such shares (or of such convertible securities) by a
fraction, the numerator of which shall be the number of shares of Common Stock
issuable upon exercise of this Warrant prior to such date and the denominator of
which shall be the number of shares of Common Stock issuable upon exercise of
this Warrant immediately after the adjustment described in clause (A)
above.
For
purposes of the foregoing, the aggregate consideration receivable by the Company
in connection with the issuance of such shares of Common Stock or convertible
securities shall be deemed to be equal to the sum of the net offering price
(including the Fair Market Value of any non-cash consideration and after
deduction of any related expenses payable to third parties) of all such
securities plus the minimum aggregate amount, if any, payable upon exercise or
conversion of any such convertible securities into shares of Common Stock; and
“Permitted
Transactions” shall mean issuances (i) as consideration for or to fund
the acquisition of businesses and/or related assets, and (ii) in connection with
employee benefit plans and compensation related arrangements in the ordinary
course and consistent with past practice approved by the Board of
Directors.
(C) Other
Distributions. In case the Company shall fix a record date for
the making of a distribution to all holders of shares of its Common Stock of
securities, evidences of indebtedness, assets, cash, rights or warrants
(excluding Ordinary Cash Dividends, dividends of its Common Stock and other
dividends or distributions referred to in Section 13(A)), in each such case, the
Exercise Price in effect prior to such record date shall be reduced immediately
thereafter to the price determined by multiplying the Exercise Price in effect
immediately prior to the reduction by the quotient of (x) the Market Price of
the Common Stock on the last trading day preceding the first date on which the
Common Stock trades regular way on the principal national securities exchange on
which the Common Stock is listed or admitted to trading without the right to
receive such distribution, minus the amount of cash and/or the Fair Market Value
of the securities, evidences of indebtedness, assets, rights or warrants to be
so distributed in respect of one share of Common Stock (such amount and/or Fair
Market Value, the “Per Share
Fair Market Value”) divided by (y) such Market Price on such date
specified in clause (x); such adjustment shall be made successively whenever
such a record date is fixed. In such event, the number of Shares
issuable upon the exercise of this Warrant shall be increased to the number
obtained by dividing (x) the product of (1) the number of Shares issuable upon
the exercise of this Warrant before such adjustment, and (2) the Exercise Price
in effect immediately prior to the distribution giving rise to this adjustment
by (y) the new Exercise Price determined in accordance with the immediately
preceding sentence. In the case of adjustment for a cash dividend
that is, or is coincident with, a regular quarterly cash dividend, the Per Share
Fair Market Value would be reduced by the per share amount of the portion of the
cash dividend that would constitute an Ordinary Cash Dividend. In the
event that such distribution is not so made, the Exercise Price and the number
of Shares issuable upon exercise of this Warrant then in effect shall be
readjusted, effective as of the date when the Board of Directors determines not
to distribute such shares, evidences of indebtedness, assets, rights, cash or
warrants, as the case may be, to the Exercise Price that would then be in effect
and the number of Shares that would then be issuable upon exercise of this
Warrant if such record date had not been fixed.
7
(D) Business
Combinations. In case of any Business Combination or
reclassification of Common Stock (other than a reclassification of Common Stock
referred to in Section 13(A)), the Warrantholder’s right to receive Shares upon
exercise of this Warrant shall be converted into the right to exercise this
Warrant to acquire the number of shares of stock or other securities or property
(including cash) which the Common Stock issuable (at the time of such Business
Combination or reclassification) upon exercise of this Warrant immediately prior
to such Business Combination or reclassification would have been entitled to
receive upon consummation of such Business Combination or reclassification; and
in any such case, if necessary, the provisions set forth herein with respect to
the rights and interests thereafter of the Warrantholder shall be appropriately
adjusted so as to be applicable, as nearly as may reasonably be, to the
Warrantholder’s right to exercise this Warrant in exchange for any shares of
stock or other securities or property pursuant to this paragraph. In
determining the kind and amount of stock, securities or the property receivable
upon exercise of this Warrant following the consummation of such Business
Combination, if the holders of Common Stock have the right to elect the kind or
amount of consideration receivable upon consummation of such Business
Combination, then the consideration that the Warrantholder shall be entitled to
receive upon exercise shall be deemed to be the types and amounts of
consideration received by the majority of all holders of the shares of common
stock that affirmatively make an election (or of all such holders if none make
an election).
(E) Rounding of Calculations;
Minimum Adjustments. All calculations under this Section 13
shall be made to the nearest one-tenth (1/10th) of a cent or to the nearest
one-hundredth (1/100th) of a share, as the case may be. Any provision
of this Section 13 to the contrary notwithstanding, no adjustment in the
Exercise Price or the number of Shares into which this Warrant is exercisable
shall be made if the amount of such adjustment would be less than $0.01 or
one-tenth (1/10th) of a share of Common Stock, but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at the time
of and together with any subsequent adjustment which, together with such amount
and any other amount or amounts so carried forward, shall aggregate $0.01 or
1/10th of a share of Common Stock, or more.
(F) Timing of Issuance of
Additional Common Stock Upon Certain Adjustments. In any case
in which the provisions of this Section 13 shall require that an adjustment
shall become effective immediately after a record date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Warrantholder of
this Warrant exercised after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such exercise by
reason of the adjustment required by such event over and above the shares of
Common Stock issuable upon such exercise before giving effect to such adjustment
and (ii) paying to such Warrantholder any amount of cash in lieu of a fractional
share of Common Stock; provided, however, that the Company upon request shall
deliver to such Warrantholder a due xxxx or other appropriate instrument
evidencing such Warrantholder’s right to receive such additional shares, and
such cash, upon the occurrence of the event requiring such
adjustment.
(G) Other
Events. For so long as the Warrantholder holds this Warrant or
any portion thereof, if any event occurs as to which the provisions of this
Section 13 are not strictly applicable or, if strictly applicable, would not, in
the good faith judgment of the Board of Directors of the Company, fairly and
adequately protect the purchase rights of the Warrants in accordance with the
essential intent and principles of such provisions, then the Board of Directors
shall make such adjustments in the application of such provisions, in accordance
with such essential intent and principles, as shall be reasonably necessary, in
the good faith opinion of the Board of Directors, to protect such purchase
rights as aforesaid. The Exercise Price or the number of Shares into
which this Warrant is exercisable shall not be adjusted in the event of a change
in the par value of the Common Stock or a change in the jurisdiction of
incorporation of the Company.
8
(H) Statement Regarding
Adjustments. Whenever the Exercise Price or the number of
Shares into which this Warrant is exercisable shall be adjusted as provided in
Section 13, the Company shall forthwith file at the principal office of the
Company a statement showing in reasonable detail the facts requiring such
adjustment and the Exercise Price that shall be in effect and the number of
Shares into which this Warrant shall be exercisable after such adjustment, and
the Company shall also cause a copy of such statement to be sent by mail, first
class postage prepaid, to each Warrantholder at the address appearing in the
Company’s records.
(I) Notice of Adjustment
Event. In the event that the Company shall propose to take any
action of the type described in this Section 13 (but only if the action of the
type described in this Section 13 would result in an adjustment in the Exercise
Price or the number of Shares into which this Warrant is exercisable or a change
in the type of securities or property to be delivered upon exercise of this
Warrant), the Company shall give notice to the Warrantholder, in the manner set
forth in Section 13(J), which notice shall specify the record date, if any, with
respect to any such action and the approximate date on which such action is to
take place. Such notice shall also set forth the facts with respect
thereto as shall be reasonably necessary to indicate the effect on the Exercise
Price and the number, kind or class of shares or other securities or property
which shall be deliverable upon exercise of this Warrant. In the case
of any action which would require the fixing of a record date, such notice shall
be given at least 10 days prior to the date so fixed, and in case of all other
action, such notice shall be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of any such action.
(J) Proceedings Prior to Any
Action Requiring Adjustment. As a condition precedent to the
taking of any action which would require an adjustment pursuant to this Section
13, the Company shall take any action which may be necessary, including
obtaining regulatory, New York Stock Exchange, NASDAQ Stock Market or other
applicable national securities exchange or stockholder approvals or exemptions,
in order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock that the Warrantholder is entitled
to receive upon exercise of this Warrant pursuant to this Section
13.
(K) Adjustment
Rules. Any adjustments pursuant to this Section 13 shall be
made successively whenever an event referred to herein shall
occur. If an adjustment in Exercise Price made hereunder would reduce
the Exercise Price to an amount below par value of the Common Stock, then such
adjustment in Exercise Price made hereunder shall reduce the Exercise Price to
the par value of the Common Stock.
14. No
Impairment. The Company will not, by amendment of its Charter
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms to be observed
or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Warrant and in taking
of all such action as may be necessary or appropriate in order to protect the
rights of the Warrantholder.
9
15. Governing
Law. This
Warrant will be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State. Each of the Company and the Warrantholder agrees
(a) to submit to the exclusive jurisdiction and venue of the United States
District Court for the Southern District of New York for any civil action, suit
or proceeding arising out of or relating to this Warrant or the transactions
contemplated hereby, and (b) that notice may be served upon the Company at the
address of its principal executive office and upon the Warrantholder at the
address for the Warrantholder set forth in the registry maintained by the
Company pursuant to Section 9 hereof. To the extent permitted by
applicable law, each of the Company and the Warrantholder hereby unconditionally
waives trial by jury in any civil legal action or proceeding relating to the
Warrant or the transactions contemplated hereby or thereby.
16. Binding
Effect. This Warrant shall be binding upon any successors or
assigns of the Company.
17.
Amendments. This
Warrant may be amended and the observance of any term of this Warrant may be
waived only with the written consent of the Company and the
Warrantholder.
18. Prohibited
Actions. The Company agrees that it will not take any action
which would entitle the Warrantholder to an adjustment of the Exercise Price if
the total number of shares of Common Stock issuable after such action upon
exercise of this Warrant, together with all shares of Common Stock then
outstanding and all shares of Common Stock then issuable upon the exercise of
all outstanding options, warrants, conversion and other rights, would exceed the
total number of shares of Common Stock then authorized by its
Charter.
19. Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally, or by facsimile, upon
confirmation of receipt, or (b) on the second business day following the date of
dispatch if delivered by a recognized next day courier service.
20. Entire
Agreement. This Warrant, the form attached hereto and the
Management Agreement, contain the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
arrangements or undertakings with respect thereto.
[Remainder
of page intentionally left blank]
10
[Form of Notice of
Exercise]
Date:
RE: Election
to Purchase Common Stock
The
undersigned, pursuant to the provisions set forth in the attached Warrant,
hereby agrees to subscribe for and purchase the number of shares of the Common
Stock set forth below covered by such Warrant. The undersigned, in
accordance with Section 3 of the Warrant, hereby agrees to pay the aggregate
Exercise Price for such shares of Common Stock in the manner set forth
below. A new warrant evidencing the remaining shares of Common Stock
covered by such Warrant, but not yet subscribed for and purchased, if any,
should be issued in the name set forth below.
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Number
of Shares of Common Stock
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Method
of Payment of Exercise Price
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|
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Aggregate
Exercise Price:
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Holder:
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By:
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Name:
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Title:
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IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by a
duly authorized officer.
Dated: January
24, 2011
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By:
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/s/ Xxxxxx Xxxxx | |
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Xxxxxx
Xxxxx
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Chief
Executive Officer
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[Signature
Page to Warrant]
A-1
