EXHIBIT 4.2
AGREEMENT
This Agreement ("Agreement") is entered into and effective as of November
21, 2007 ("Effective Date"), by and between Paid, Inc., a Delaware corporation
located at 0 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the "Company"), and Xxxxx
Asset Management Equity Fund, LLP, residing at, 00 Xxxxxxxxxxx Xxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000 or its affiliated designees ("Investor).
Whereas, the Company desires to sell 2,500,000 shares of restricted common
stock of the Company to Investor, and Investor desires to purchase shares of
2,500,000 shares of restricted common stock of the Company, at a purchase price
of $.20 per share (the "Restricted Shares"), for a total purchase price of
$500,000 previously loaned to the Company;
Whereas, the parties desire to have Investor invest in the Company;
NOW, THEREFORE, in consideration of the recitals set forth above and the
mutual agreements and covenants contained herein, the parties hereto agree as
follows:
1. Purchase and Sale of Shares. Investor shall buy, and the Company
shall sell, 2,500,000 shares of restricted common stock of the Company, at a
purchase price of $.20 per share. For purposes of this Agreement, all shares of
common stock of the Company purchased pursuant to this Agreement shall be
referred to as the "Securities."
2. Representations and Warranties. Investor warrants and represents to
the Company as follows:
(a) I understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Act") or
any state securities laws (the "State Acts") and that the
transferability of the Securities is therefore subject to
restrictions imposed by those laws. I hereby represent to the
Company that I am acquiring the Securities with no intention
of reselling any of such Securities in any distribution within
the meaning of the Act. Specifically, I represent to the
Company that I am purchasing the Securities for investment
purposes for my own account, that no one else has any
beneficial ownership in the Securities, that the Securities
are not and are not to be the subject of any pledge or other
lien, and that I do not intend to and will not resell the
Securities unless, at a future date, they are registered under
the Act and applicable state securities laws, or in the
opinion of securities counsel acceptable to the Company, a
specific exemption from registration is available in
connection with any such resale.
I further acknowledge that the Company is relying upon the
validity of the representations and agreements herein made by
me in issuing the Securities to me without registration.
(b) I have had ample access to and time to review the financial
statements of, and all other documents, locations and sources
of material information concerning, the Company as well as the
opportunity to ask questions of, and receive answers from, the
management of the Company to verify the accuracy and
completeness of such information. I have reviewed all
information available to me about the Company, including any
periodic and current reports on Form 10-QSB, 10-KSB, and 8-K,
available on the Company's website, at xxx.xxxx.xxx, and on
the Securities and Exchange Commission's website, at
xxx.xxx.xxx. I further
warrant and represent that I have been given the opportunity
to obtain whatever additional information I may have needed to
evaluate the transaction described herein, to verify such
information, to inspect the corporate records of the Company
and to meet with a representative of the management of the
Company concerning its operations, organization and financial
posture.
(c) By reason of my knowledge and experience in financial and
business matters in general, and investments in particular, I
am capable of evaluating the merits and risks of an investment
by me in the Securities and to make an informed decision with
respect to such investment. I am an accredited investor, as
that term is defined in Regulation D as promulgated by the
Securities and Exchange Commission.
(d) I am capable of bearing the economic risks of an investment in
the Securities. I can afford a complete loss of my investment
herein and am able to bear the economic risk of holding the
Securities for an indefinite period.
(e) My present financial condition is such that I am under no
present or contemplated future need to dispose of any portion
of the Securities to satisfy any existing or contemplated
undertaking, need, or indebtedness.
3. Restrictions on Transferability of Securities. The certificates
evidencing the Securities shall be stamped or otherwise imprinted with a
conspicuous legend in substantially the following form:
The Shares represented by this certificate have not been registered
under the Securities Act of 1933 or under any state law and, except
pursuant to an effective registration statement under such Act and
other laws, may not be offered, sold, transferred, or otherwise
disposed of without an opinion of counsel, satisfactory to the
Company, that such disposition may be made without such
registration.
Investor acknowledges that the Securities are not, and will not be, registered
under the Act. Investor acknowledges that the Company has not agreed to register
the Securities for distribution in accordance with the provisions of the Act or
the State Acts, and that the Company has not agreed to comply with any exemption
under the Act or the State Acts for the resale of the Securities. For example,
the Company has not agreed to supply such information as would be required to
enable routine sales of the Securities to be made under the provisions of
certain rules respecting "restricted securities" promulgated under the Act by
the Securities and Exchange Commission. Hence, Investor acknowledges that by
virtue of the provisions of certain rules respecting "restricted securities"
promulgated under the Act, the Securities must be held by Investor unless and
until subsequently registered under the Act and/or the State Acts or unless an
exemption from such registration is available, in which case Investor may still
be limited as to the amount of the Securities that may be sold.
4. No Shorting. As a material inducement for the Company to enter into
this Agreement, Investor covenants on behalf of itself and its representatives
or agents that neither Investor nor any representative, agent, or broker on his
behalf at any time in which Investor beneficially owns any of the Securities,
shall engage in any short sales of, or hedging or arbitrage transactions with
respect to, the common stock of the Company, or buy "put" options or similar
instruments with respect to, the common stock of the Company.
5. Notices. Any notices or other communications required or permitted
hereby shall be sufficiently given if sent by registered or certified mail,
postage prepaid, return receipt requested, if to the Company, at the address
listed above, and if to Investor, at the address provided next to Investor's
signature below, or to such other addresses as either the Company or the
undersigned shall designate to the other by notice in writing.
6. Piggy-Back Registrations. If at any time before one year from the
date hereof when there is not an effective Registration Statement covering any
Securities, and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or its then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with stock option or other benefit
plans or compensation, the Company shall send to each such holder ("Holder") of
such registrable securities ("Registrable Securities") written notice of such
determination and, if within thirty (10) days after receipt of such notice, any
such Holder shall so request in writing (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
will cause the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Holder, to
the extent requisite to permit the disposition of the Registrable Securities so
to be registered, provided that if at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to such Holder and, thereupon, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration, and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities being registered pursuant to this Section for the same
period as the delay in registering such other securities. The Company shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered; provided, however, that the
Company shall not be required to register any Registrable Securities pursuant to
this Section that are eligible for sale pursuant to Rule 144 of the Securities
Act. In the case of an underwritten public offering, if the managing
underwriter(s) or underwriter(s) should reasonably object to the inclusion of
the Registrable Securities in such registration statement, then if the Company
after consultation with the managing underwriter should reasonably determine
that the inclusion of such Registrable Securities, would materially adversely
affect the offering contemplated in such registration statement, and based on
such determination recommends inclusion in such registration statement of fewer
or none of the Registrable Securities of the Holder, then (x) the number of
Registrable Securities of the Holder included in such registration statement
shall be reduced pro-rata among such Holder (based upon the number of
Registrable Securities requested to be included in the registration), if the
Company after consultation with the underwriter(s) recommends the inclusion of
fewer Registrable Securities, or (y) none of the Registrable Securities of the
Holder shall be included in such registration statement, if the Company after
consultation with the underwriter(s) recommends the inclusion of none of such
Registrable Securities; provided, however, that if securities are being offered
for the account of other persons or entities as well as the Company, such
reduction shall not represent a greater fraction of the number of Registrable
Securities intended to be offered by the Holder than the fraction of similar
reductions imposed on such other persons or entities (other than the Company).
7. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts and, to the extent
it involves any United States statute, in accordance with the laws of the United
States. Any dispute, controversy, claim or difference arising out of, or in
connection with, or resulting from this Agreement, its application or
interpretation, or a breach thereof, which cannot be settled amicably by the
parties, shall be resolved definitively and exclusively by arbitration under the
Rules of Arbitration of the American Arbitration Association (the "Rules") then
prevailing, which arbitration shall be held in Boston, Massachusetts.
Arbitration shall be by a single arbitrator within thirty (30) calendar days
after demand for arbitration, then the arbitrator shall be chosen in accordance
with the Rules. The decision of the arbitrator shall be final and binding on the
parties, and judgment upon any award rendered may be entered in any court having
jurisdiction thereof.
8. Use of proceeds. The Company will use the proceeds from this deal to
secure additional clients. In the event the Company (Paid) does not consummate a
deal this transaction can be canceled within 30 days and the funds and shares
shall be returned to the respective parties. Requests should be made in writing
to 0 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, attention Xxxxxxx Xxxxxx.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
XXXXX ASSET MANAGEMENT EQUITY FUND,
LLP
By:____________________________
PAID, INC.
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx, President
