SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.1
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of January 12, 2006, among Spatialight, Inc., a New York corporation
(the “Company”),
and
each purchaser identified on the signature pages hereto (each, including its
successors and assigns, a “Purchaser”
and
collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”)
and Rule 506 promulgated thereunder, the Company desires to issue and sell
to
each Purchaser, and each Purchaser, severally and not jointly, desires to
purchase from the Company, securities of the Company as more fully described
in
this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:
DEFINITIONS
1.1
Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes
of this Agreement, the following terms have the meanings indicated in this
Section 1.1:
“Action”
shall
have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person as such
terms are used in and construed under Rule 144. With respect to a Purchaser,
any
investment fund or managed account that is managed on a discretionary basis
by
the same investment manager as such Purchaser will be deemed to be an Affiliate
of such Purchaser.
“Closing”
means
the closing of the purchase and sale of the Securities pursuant to Section
2.1.
“Closing
Date”
means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to
(i)
the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities have been satisfied or
waived.
“Closing
Price”
means
on any particular date (a) the last reported closing bid price per share of
Common Stock on such date on the Trading Market (as reported by Bloomberg L.P.
at 4:15 PM (New York time)), or (b) if there is no such price on such date,
then
the closing bid price on the Trading Market on the date nearest preceding such
date (as reported by Bloomberg L.P. at 4:15 PM (New York time)), or (c) if
the Common Stock is not then listed or quoted on the Trading Market and if
prices for the Common Stock are then reported in the “pink sheets” published by
the National Quotation Bureau Incorporated (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price
per
share of the Common Stock so reported, or (d) if the shares of Common Stock
are not then publicly traded the fair market value of a share of Common Stock
as
determined by an appraiser selected in good faith by the Purchasers of a
majority in interest of the Shares then outstanding.
“Commission”
means
the U.S. Securities and Exchange Commission.
“Common
Stock”
means
the common shares of the Company, par value $0.01 per share, and any other
class
of securities into which such securities may hereafter have been reclassified
or
changed into.
“Common
Stock Equivalents”
means
any securities of the Company or the Subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation,
any
debt, preferred shares, rights, options, warrants or other instrument that
is at
any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock.
“Company
Counsel”
means
Xxxxx Xxxx LLP.
“Disclosure
Schedules”
means
the Disclosure Schedules of the Company delivered concurrently
herewith.
“Effective
Date”
means
the date that the initial Registration Statement filed by the Company pursuant
to the Registration Rights Agreement is first declared effective by the
Commission.
“Evaluation
Date”
shall
have the meaning ascribed to such term in Section 3.1(r).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt
Issuance”
means
the issuance of (a) shares of Common Stock or options to employees, officers
or
directors of the Company pursuant to any stock or option plan duly adopted
by a
majority of the non-employee members of the Board of Directors of the Company
or
a majority of the members of a committee of non-employee directors established
for such purpose, (b) securities upon the exercise or exchange of or conversion
of any Securities issued hereunder and/or securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the
date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities
or to
decrease the exercise, exchange or conversion price of any such securities,
except in accordance with the anti-dilution provisions of such securities,
and
(c) securities issued pursuant to acquisitions or strategic transactions,
provided any such issuance shall only be to a Person which is, itself or through
its subsidiaries, an operating company in which the Company receives benefits
in
addition to the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose of raising
capital or to an entity whose primary business is investing in
securities.
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“GAAP”
shall
have the meaning ascribed to such term in Section 3.1(h).
“Intellectual
Property Rights”
shall
have the meaning ascribed to such term in Section 3.1(o).
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction.
“Material
Adverse Effect”
shall
have the meaning assigned to such term in Section 3.1(b).
“Material
Permits”
shall
have the meaning ascribed to such term in Section 3.1(m).
“Per
Share Purchase Price”
equals
the lesser of: (1) $2.75, and (2) the Closing Price on the Trading Day
immediately prior to Closing, subject to adjustment for reverse and forward
stock splits, stock dividends, stock combinations and other similar transactions
of the Common Stock that occur after the date of this Agreement.
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Purchaser
Party”
shall
have the meaning ascribed to such term in Section 4.9.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated the date hereof, among the Company
and
the Purchasers, in the form of Exhibit
A
attached
hereto.
“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Shares.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“SEC
Filings”
shall
have the meaning ascribed to such term in Section 3.1.
“SEC
Reports”
shall
have the meaning ascribed to such term in Section 3.1(h).
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“Securities”
means
the Shares.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shareholder
Approval”
means
such approval as may be required by the applicable rules and regulations of
the
Nasdaq SmallCap Market (or any successor entity) from the shareholders of the
Company with respect to the transactions contemplated by the Transaction
Documents, including the issuance of all of the Shares in excess of 19.99%
of
the issued and outstanding Common Stock on the Closing Date.
“Shares”
means
the shares of Common Stock issued or issuable to each Purchaser pursuant to
this
Agreement.
“Short
Sales”
shall
include all “short sales” as defined in Rule 200 of Regulation SHO under the
Exchange Act.
“Subscription
Amount”
means,
as to each Purchaser, the aggregate amount to be paid for Shares purchased
hereunder as specified below such Purchaser’s name on the signature page of this
Agreement and next to the heading “Subscription Amount”, in United States
Dollars and in immediately available funds.
“Subsequent
Offering Notice”
shall
have the meaning ascribed to such term in Section 4.13.
“Subsidiary”
means
any subsidiary of the Company as set forth on Schedule
3.1(a).
“Trading
Day”
means
a
day on which the Common Stock is traded on a Trading Market.
“Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq SmallCap Market, the American
Stock Exchange, the New York Stock Exchange, or the Nasdaq National
Market.
“Transaction
Documents”
means
this Agreement and the Registration Rights Agreement and any other documents
or
agreements executed in connection with the transactions contemplated
hereunder.
Article
II.
PURCHASE
AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the
conditions set forth herein, concurrent with the execution and delivery of
this
Agreement by the parties hereto, the Company agrees to sell, and each Purchaser
agrees to purchase in the aggregate, severally and not jointly, up to 2,363,637
Shares. Upon the acceptance and execution of this Agreement by the Company,
the
Company shall deliver to each Purchaser their respective Shares as determined
pursuant to Section 2.2(a) and the other items set forth in Section 2.2.
Immediately upon receipt of the Shares, each Purchaser will deliver to the
Company via wire transfer or a certified check immediately available funds
equal
to their Subscription Amount. Upon satisfaction of the conditions set forth
in
Sections 2.2 and 2.3, the Closing shall occur at the offices of the Xxxxx Xxxx
LLP, 1290 Avenue of the Americas, New York, NY, or such other location as the
parties shall mutually agree.
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2.2
Deliveries.
(a)
On
the Closing Date, the Company shall deliver or cause to be delivered to the
Purchasers the following:
(i)
this
Agreement duly executed by the Company;
(ii)
a
certificate evidencing a whole number of Shares equal to such Purchaser’s
Subscription Amount divided by the Per Share Purchase Price, registered in
the
name of such Purchaser or the nominee name thereof; and
(iii)
the
Registration Rights Agreement duly executed by the Company.
(b)
Within ten (10) Trading Days after the Closing Date, the Company shall deliver
or cause to be delivered to the Purchasers a legal opinion in the form agreed
to
by the Purchasers, the Company and Company Counsel.
(c)
On
the Closing Date, each Purchaser shall deliver or cause to be delivered to
the
Company the following:
(i)
this
Agreement duly executed by such Purchaser;
(ii)
the
Registration Rights Agreement duly executed by such Purchaser.
(iii)
immediately upon receipt of the Shares, such Purchaser’s Subscription Amount by
wire transfer to the account as specified in writing by the
Company.
2.3
Closing Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i)
the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchasers contained herein;
(ii)
all
obligations, covenants and agreements of the Purchasers required to be performed
at or prior to the Closing Date shall have been performed; and
(iii)
the
delivery by the Purchasers of the items set forth in Section 2.2(c) of this
Agreement.
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(b)
The
respective obligations of the Purchasers hereunder in connection with the
Closing are subject to the following conditions being met:
(i)
the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(ii)
all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iii)
the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company
between the date hereof through the Closing Date; and
(v)
from
the date hereof to the Closing Date, trading in the Common Stock shall not
have
been suspended by the Commission (except for any suspension of trading of
limited duration agreed to by the Company, which suspension shall be terminated
prior to the Closing), and, at any time prior to the Closing Date, trading
in
securities generally as reported by Bloomberg Financial Markets shall not have
been suspended or limited, or minimum prices shall not have been established
on
securities whose trades are reported by such service, or on any Trading Market,
nor shall a banking moratorium have been declared either by the United States
or
New York State authorities nor shall there have occurred any material outbreak
or escalation of hostilities or other national or international calamity of
such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of each Purchaser, makes
it impracticable or inadvisable to purchase the Shares at the
Closing.
Article
III
REPRESENTATIONS
AND WARRANTIES
3.1
Representations and Warranties of the Company.Except
as set forth under the corresponding section of the Disclosure Schedules and
except as disclosed in the Company’s filings with the Commission made pursuant
to the Securities Act or the Exchange Act (the "SEC
Filings", which Disclosure Schedules
and SEC Filings shall be deemed a part hereof, the Company
hereby makes the representations and warranties set forth below to each
Purchaser:
(a)
Subsidiaries.
The
Company has no direct or indirect Subsidiaries other than as specified in the
SEC Reports. Except as disclosed in Schedule 3.1(a), the Company owns, directly
or indirectly, all of the capital stock of each Subsidiary free and clear of
any
and all Liens, and all the issued and outstanding shares of capital stock of
each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights.
6
(b)
Organization and Qualification.
The
Company and each Subsidiary are duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of
its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. Neither the Company nor any Subsidiary is in violation
of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of
the
Company and each Subsidiary is duly qualified to conduct its respective
businesses and are in good standing as a foreign corporation or other entity
in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to
be
so qualified or in good standing, as the case may be, will not, individually
or
in the aggregate, have or reasonably be expected to result in a Material Adverse
Effect. As used in this Agreement, "MATERIAL ADVERSE EFFECT" means except as
disclosed in the Company's SEC Reports, the financial statements and notes
thereto furnished to the Purchasers, or otherwise disclosed herein or in the
Disclosure Schedules or Exhibits hereto, any material adverse effect on the
business, properties, assets, operations, results of operations, condition
(financial or otherwise) or prospects of the Company and its Subsidiaries,
taken
as a whole, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents.
(c)
Authorization; Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Company and no further
action is required by the Company in connection therewith. Each Transaction
Document has been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the
valid and binding obligation of the Company enforceable against the Company
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general
application.
(d)
No
Conflicts. Except as set forth in
Schedule 3.1(d), the execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii)
conflict with, or constitute a default (or an event that with notice or lapse
of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which
any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse
Effect.
7
(e)
Filings, Consents and Approvals.
The
Company is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court
or
other federal, state, local or other governmental authority or other Person
in
connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filing with the Commission of one
or
more Registration Statements in accordance with the requirements of the
Registration Rights Agreement, (ii) filings required by state securities laws,
(iii) the filing of a Notice of Sale of Securities on Form D with the Commission
under Regulation D of the Securities Act, and (iv) those that have been made
or
obtained prior to the date of this Agreement.
(f)
Issuance of the Securities.
The
Securities have been duly authorized and, when issued and paid for in accordance
with the Transaction Documents, will be duly and validly issued, fully paid
and
nonassessable, free and clear of all Liens. The Company has reserved from its
duly authorized capital stock the shares of Common Stock issuable pursuant
to
this Agreement in order to issue the Shares.
(g)
Capitalization.
The
number of shares and type of all authorized, issued and outstanding capital
stock of the Company, and all shares of Common Stock reserved for issuance
under
the Company’s various option and incentive plans, is specified in the SEC
Reports. Except as specified in the SEC Reports, no securities of the Company
are entitled to preemptive or similar rights, and no Person has any right of
first refusal, preemptive right, right of participation, or any similar right
to
participate in the transactions contemplated by the Transaction Documents.
Except as specified in the SEC Reports, there are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities, rights or obligations convertible into
or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound
to
issue additional shares of Common Stock, or securities or rights convertible
or
exchangeable into shares of Common Stock. The issue and sale of the Securities
will not, immediately or with the passage of time, obligate the Company to
issue
shares of Common Stock or other securities to any Person (other than the
Investors) and will not result in a right of any holder of Company securities
to
adjust the exercise, conversion, exchange or reset price under such
securities.
(h)
SEC Reports; Financial Statements.
The
Company has filed all reports required to be filed by it under the Securities
Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the twelve months preceding the date hereof (or such shorter period as
the
Company was required by law to file such reports) (the foregoing materials
being
collectively referred to herein as the “SEC Reports” and, together with the
Schedules to this Agreement (if any), the “Disclosure Materials”) on a timely
basis or has timely filed a valid extension of such time of filing and has
filed
any such SEC Reports prior to the expiration of any such extension. Except
as
disclosed Schedule 3.1(h), as
of their
respective dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have
been
prepared in accordance with United States generally accepted accounting
principals applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto, and fairly present in all material respects the financial position
of
the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments.
8
(i)
Material Changes.
Since
the date of the latest audited financial statements included in the SEC Reports,
except as specifically disclosed in the SEC Reports subsequent financial
statements, or otherwise disclosed herein or on the schedules or exhibits
thereto, (i) there has been no event, occurrence or development that has had
or
that could reasonably be expected to result in a Material Adverse Effect, (ii)
the Company has not incurred any liabilities (contingent or otherwise) other
than (A) trade payables, accrued expenses and other liabilities incurred in
the
ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to
GAAP or required to be disclosed in the SEC Reports, which are either not
material or are included in the Disclosure Schedules, (iii) the Company has
not
altered its method of accounting except in accordance with GAAP or the identity
of its auditors, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) the Company has not issued any equity securities to any officer,
director or Affiliate, except pursuant to existing Company stock option plans.
The Company does not have pending before the Commission any request for
confidential treatment of information.
(j)
Litigation.
There
is no action, suit, proceeding, investigation or notice of violation (“Action”)
which (i) adversely
affects or challenges the legality, validity or enforceability of any of the
Transaction Documents or the Securities or (ii) except as specifically disclosed
in the SEC Reports and
Schedule 3(j),
could,
if there were an unfavorable decision, individually or in the aggregate, have
or
reasonably be expected to result in a Material Adverse Effect. Neither the
Company nor any Subsidiary, nor any director or officer thereof (in his or
her
capacity as such), is or has been the subject of any Action involving a claim
of
violation of or liability under federal or state securities laws or a claim
of
breach of fiduciary duty, except as specifically disclosed in the SEC Reports.
There has not been, and to the knowledge of the Company, there is not pending
any investigation by the Commission involving the Company or any current or
former director or officer of the Company (in his or her capacity as such).
The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any
Subsidiary under the Exchange Act or the Securities Act.
9
(k)
Labor Relations.
No
material labor dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company.
(l)
Compliance.
Neither
the Company nor any Subsidiary (i) is,
except
as
disclosed in Schedule 3.1(l),
in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default
by
the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement
or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or violation has been waived), (ii) is in
violation of any order of any court, arbitrator or governmental body, or (iii)
is or has been in violation of any statute, rule or regulation of any
governmental authority, including without limitation all foreign, federal,
state
and local laws relating to taxes, environmental protection, occupational health
and safety, product quality and safety and employment and labor matters, except
in each case as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. The Company is in compliance
with all effective requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended,
and the rules and regulations thereunder, that are applicable to it, except
where such noncompliance could not have or reasonably be expected to result
in a
Material Adverse Effect.
(m)
Regulatory Permits.
The
Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in
the
SEC Reports, except where the failure to possess such permits could not,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect (“Material Permit”), and neither the Company nor any
Subsidiary has received any notice of proceedings relating to the revocation
or
modification of any such permits.
(n)
Title to Assets.
The
Company and the Subsidiaries have good and marketable title in fee simple to
all
real property owned by them that is material to their respective businesses
and
good and marketable title in all personal property owned by them that is
material to their respective businesses, in each case free and clear of all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries. Any real property and
facilities held under lease by the Company and the Subsidiaries are held by
them
under valid, subsisting and enforceable leases of which the Company and the
Subsidiaries are in compliance, except as could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
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(o)
Patents and Trademarks.
The
Company and the Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights that are necessary or material
for
use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse Effect
(collectively, the “Intellectual Property Rights”). Neither the Company nor any
Subsidiary has received a written notice that the Intellectual Property Rights
used by the Company or any Subsidiary violates or infringes upon the rights
of
any Person. Except as set forth in the SEC Reports, to the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is
no
existing infringement by another Person of any of the Intellectual Property
Rights.
(p)
Insurance.
The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management
of the Company believes are prudent. The Company has no reason to believe that
it will not be able to renew its and the Subsidiaries’ existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business on terms
consistent with market for the Company’s and such Subsidiaries’ respective lines
of business.
(q)
Transactions With Affiliates and Employees.
Except
as set forth in the SEC Reports, none of the officers or directors of the
Company and, to the knowledge of the Company, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest
or
is an officer, director, trustee or partner.
(r)
Internal
Accounting Controls.
Except
as disclosed in Schedule
3.1(r),
the
Company and the 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 GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in Schedule
3.1(r),
the
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosure controls and procedures to ensure that material information relating
to the Company, including its Subsidiaries, is made known to the certifying
officers by others within those entities, particularly during the period in
which the Company’s Form 10-K or 10-Q, as the case may be, is being prepared.
The Company’s certifying officers have evaluated the effectiveness
of the Company’s controls and procedures in accordance with Item 307 of
Regulation S-K under the Exchange Act for the Company’s most recently ended
fiscal quarter or fiscal year-end (such date, the “Evaluation Date”). The
Company presented in its most recently filed Form 10-K or Form 10-Q the
conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date.
Since the Evaluation Date, there have been no significant changes in the
Company’s internal controls (as such term is defined in Item 308(c) of
Regulation S-K under the Exchange Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal
controls.
11
(s)
Certain Fees.
Except
as described in Schedule
3.1(s),
no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement. The Investors shall have no obligation with
respect to any fees or with respect to any claims (other than such fees or
commissions owed by an Investor pursuant to written agreements executed by
such
Investor which fees or commissions shall be the sole responsibility of such
Investor) made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by this Agreement.
(t)
Certain Registration Matters.
Assuming the accuracy of the Investors’ representations and warranties, no
registration under the Securities Act is required for the offer and sale of
the
Shares by the Company to the Investors under the Transaction Documents. The
Company is eligible to register its Common Stock for resale by the Investors
under Form S-3 or Form S-1 promulgated under the Securities Act. Except as
specified in Schedule
3.1(t),
the
Company has not granted or agreed to grant to any Person any rights (including
“piggy‑back”
registration rights) to have any securities of the Company registered with
the
Commission or any other governmental authority that have not been
satisfied.
(u)
Listing and Maintenance Requirements.
Except
as specified in the SEC Reports, the Company has not, in the two years preceding
the date hereof, received notice from any Trading Market to the effect that
the
Company is not in compliance with the listing or maintenance requirements
thereof. The Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with the listing and
maintenance requirements for continued listing of the Common Stock on the
Trading Market on which the Common Stock is currently listed or quoted. The
issuance and sale of the Securities under the Transaction Documents does not
contravene the rules and regulations of the Trading Market on which the Common
Stock is currently listed or quoted, and no approval of the shareholders of
the
Company thereunder is required for the Company to issue and deliver to the
Investors the Securities contemplated by Transaction Documents.
(v)
Investment Company.
The
Company is not, and is not an Affiliate of, and immediately following the
Closing will not have become, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
12
(w)
Application of Takeover Protections.
The
Company has taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including
any
distribution under a rights agreement) or other similar anti‑takeover
provision under the Company’s Certificate of Incorporation (or similar charter
documents) or the laws of its state of incorporation that is or could become
applicable to the Investors as a result of the Investors and the Company
fulfilling their obligations or exercising their rights under the Transaction
Documents, including without limitation the Company’s issuance of the Securities
and the Investors’ ownership of the Securities.
(x)
No
Additional Agreements.
The
Company does not have any agreement or understanding with any Investor with
respect to the transactions contemplated by the Transaction Documents other
than
as specified in the Transaction Documents.
(y)
Foreign Corrupt Practices. Neither the Company, nor to the knowledge of
the Company, any agent or other person acting on behalf of the Company, has
(i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf
of
which the Company is aware) which is in violation of law, or (iv) violated
in
any material respect any provision of the Foreign Corrupt Practices Act of
1977,
as amended.
(zz)
Acknowledgment Regarding Purchasers' Purchase of Securities.
The
Company acknowledges and agrees that each of the Purchasers is acting solely
in
the capacity of an arm's length purchaser with respect to the Transaction
Documents and the transactions contemplated hereby. The Company further
acknowledges that no Purchaser is 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 any Purchaser or any
of
their respective representatives or agents in connection with this Agreement
and
the transactions contemplated hereby is merely incidental to the Purchasers'
purchase of the Securities. The Company further represents to each Purchaser
that the Company's decision to enter into this Agreement has been based solely
on the independent evaluation of the transactions contemplated hereby by the
Company and its representatives.
(aa)
Manipulation of Price.
The
Company has not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in
the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
purchased, or, paid any compensation for soliciting purchases of, any of the
Securities, or (iii) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
13
(bb)
Disclosure.
The
Company confirms that neither it nor any Person acting on its behalf has
provided any Investor or its respective agents or counsel with any information
that the Company believes constitutes material, non-public information except
insofar as the existence and terms of the proposed transactions hereunder may
constitute such information. The Company understands and confirms that the
Investors will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. All disclosure provided to the
Investors regarding the Company, its business and the transactions contemplated
hereby, furnished by or on behalf of the Company (including the Company’s
representations and warranties set forth in this Agreement) are true and correct
and do not contain any untrue statement of a material fact or omit to state
any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
3.2
Representations and Warranties of the Purchasers.
Each Purchaser hereby, for itself and for no other Purchaser, represents and
warrants as of the date hereof and as of the Closing Date to the Company as
follows:
(a)
Organization; Authority.
Such
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution, delivery and
performance by such Purchaser of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate or similar action on the
part of such Purchaser. Each Transaction Document to which it is a party has
been duly executed by such Purchaser, and when delivered by such Purchaser
in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(b)
Own Account.
Such
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities
law and is acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or any part
thereof in violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Securities in
violation of the Securities Act or any applicable state securities law and
has
no arrangement or understanding with any other persons regarding the
distribution of such Securities (this representation and warranty not limiting
such Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state
securities laws) in violation of the Securities Act or any applicable state
securities law. Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement
or
understanding, directly or indirectly, with any Person to distribute any of
the
Securities.
14
(c)
Purchaser Status.
At the
time such Purchaser was offered the Securities, it was, and at the date hereof
it is, either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act. Such
Purchaser is not required to be registered as a broker-dealer under Section
15
of the Exchange Act.
(d)
Experience of Such Purchaser.
Such
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment.
Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such
investment.
(e)
General Solicitation.
Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(f)
Short Sales and Confidentiality Prior To The Date Hereof.
Other
than the transaction contemplated hereunder, such Purchaser has not directly
or
indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with such Purchaser, executed any disposition, including Short
Sales, in
the securities of the Company within
the fifteen months prior to the Closing Date. Each
Purchaser has maintained the confidentiality of all disclosures made to it
in
connection with this transaction (including the existence and terms of this
transaction).
The
Company acknowledges and agrees that each Purchaser does not make or has not
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section
3.2.
15
Article
IV.
OTHER
AGREEMENTS OF THE PARTIES
4.1
Transfer Restrictions.
(a)
The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or Rule 144, to the Company,
or
to an affiliate of a Purchaser or in connection with a pledge as contemplated
in
Section 4.1(b), the Company may require the transferor thereof to provide to
the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Securities under the Securities
Act. As a condition of transfer, any such transferee shall agree in writing
to
be bound by the terms of this Agreement and shall have the rights of a Purchaser
under this Agreement and the Registration Rights Agreement.
(b)
The
Purchasers agree to the imprinting, so long as is required by this Section
4.1(b), of a legend on any of the Securities in the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE
SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement
and the Registration Rights Agreement and, if required under the terms of such
arrangement, such Purchaser may transfer pledged or secured Securities to the
pledgees or secured parties. Such a pledge or transfer would not be subject
to
approval of the Company and no legal opinion of legal counsel of the pledgee,
secured party or pledgor shall be required in connection therewith. Further,
no
notice shall be required of such pledge. At the appropriate Purchaser’s expense,
the Company will execute and deliver such reasonable documentation as a pledgee
or secured party of Securities may reasonably request in connection with a
pledge or transfer of the Securities, including, if the Securities are subject
to registration pursuant to the Registration Rights Agreement, the preparation
and filing of any required prospectus supplement under Rule 424(b)(3) under
the
Securities Act or other applicable provision of the Securities Act to
appropriately amend the list of Selling Stockholders thereunder.
16
(c)
Certificates evidencing the Shares shall not contain any legend (including
the
legend set forth in Section 4.1(b)), (i) following a sale or transfer of the
Shares pursuant to an effective registration statement, or (ii) following any
sale of such Shares pursuant to Rule 144 to any Person who is not an Affiliate
of the Company, or (iii) if such Shares are eligible for sale under Rule 144(k),
or (iv) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued
by
the staff of the Commission). The Company shall cause its counsel to issue
a
legal opinion to the Company’s transfer agent promptly after the Effective Date
if required by the Company’s transfer agent to effect the removal of the legend
hereunder. The
Company may not make any notation on its records or give instructions to any
transfer agent of the Company that enlarge the restrictions on transfer set
forth in this Section. Certificates for Securities subject to legend removal
hereunder shall be transmitted by the transfer agent of the Company to the
Purchasers by crediting the account of the Purchaser’s prime broker or custodian
with the Depository Trust Company System.
(d)
Each
Purchaser, severally and not jointly with the other Purchasers, agrees that
the
removal of the restrictive legend from certificates representing Securities
as
set forth in this Section 4.1 is predicated upon the Company’s reliance that the
Purchaser will sell any Securities pursuant to either the registration
requirements of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom.
4.2
Furnishing of Information.
As long as any Purchaser owns Securities, the Company covenants to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. As long as any Purchaser owns Securities, if
the
Company is not required to file reports pursuant to the Exchange Act, it will
prepare and furnish to the Purchasers and make publicly available in accordance
with Rule 144(c) such information as is required for the Purchasers to sell
the
Securities under Rule 144. The Company further covenants that it will take
such
further action as any holder of Securities may reasonably request, all to the
extent required from time to time to enable such Person to sell such Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144.
4.3
Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the
sale
of the Securities to the Purchasers or that would be integrated with the offer
or sale of the Securities for purposes of the rules and regulations of any
Trading Market such that it would require shareholder approval prior to the
closing of such other transaction unless shareholder approval is obtained before
the closing of such subsequent transaction.
17
4.4
Securities
Laws Disclosure; Publicity.
The
Company shall, in compliance with applicable securities laws, issue a Current
Report on Form 8-K, reasonably acceptable to each Purchaser, disclosing the
material terms of the transactions contemplated hereby, and shall attach
the
Transaction Documents thereto. The Company and each Purchaser shall consult
with
each other in issuing any other press releases with respect to the transactions
contemplated hereby. In no event,
shall
the Company be entitled to use the name of the Purchaser or Wellington
Management Company LLP in any press release without
such
Purchaser’s prior
consent.
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company
or, to the knowledge of the Company, any other Person that any Purchaser
is an
“Acquiring Person” under any shareholder rights plan or similar plan or
arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement,
by
virtue of receiving Securities under the Transaction Documents or under any
other agreement between the Company and the Purchasers. The Company shall
conduct its business in a manner so that it will not become subject to the
Investment Company Act.
4.6
Non-Public
Information.
The
Company covenants and agrees that other
pursuant to Section 4.13, neither
it nor any other Person acting on its behalf will provide any Purchaser or
its
agents or counsel with any information that the Company believes constitutes
material non-public information, unless prior thereto such Purchaser shall
have
executed a written agreement regarding the confidentiality and use of such
information. The Company understands and confirms that each Purchaser shall
be
relying on the foregoing representations in effecting transactions in securities
of
the
Company. With respect to information disclosed in a Subsequent Offering Notice
(as defined in Section 4.13), each Purchaser covenants that it shall keep
confidential, shall not act upon or use in any manner (except in accordance
with
the terms of Section 4.13), and shall not share or further disclose to any
other
party the information disclosed by the Company pursuant to Section 4.13 until
such information has been publicly disclosed by the
Company.
4.7
Use of Proceeds.
Except
as set forth on Schedule 4.7 attached hereto, the Company shall use the
net proceeds from the sale of the Securities hereunder for working capital
purposes and not for the satisfaction of any portion of the Company’s debt
(other than payment of trade payables in the ordinary course of the Company’s
business and prior practices or regularly scheduled interest payments on
existing Indebtedness), to redeem any Common Stock or Common Stock Equivalents
or to settle any outstanding litigation.
4.8
Indemnification of Purchasers.
Subject
to the provisions of this Section 4.8, the Company will indemnify and hold
each
Purchaser and its directors, officers, shareholders, members, partners,
employees and agents (each, a “Purchaser Party”) harmless from any and
all losses, liabilities, obligations, claims, contingencies, damages, costs
and
expenses, including all judgments, amounts paid in settlements, court costs
and
reasonable attorneys’ fees and costs of investigation (collectively, “Losses”)
that any such Purchaser Party may suffer or incur as a result of or relating
to
any breach in any material respect of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement or in the other
Transaction Documents. If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement,
such Purchaser Party shall promptly notify the Company in writing, and the
Company shall have the right to assume the defense thereof with counsel of
its
own choosing. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees
and expenses of such counsel shall be at the expense of such Purchaser Party
except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party. But in no event shall the Company be
obligated to bear fees and disbursements of more than one law firm per Purchaser
Party under the provisions of Section 4.9 or otherwise. The Company will not
be
liable to any Purchaser Party under this Agreement (i) for any settlement by
a
Purchaser Party effected without the Company’s prior written consent, which
shall not be unreasonably withheld or delayed; or (ii) to the extent, but only
to the extent that a loss, claim, damage or liability is attributable to any
Purchaser Party’s breach of any of the representations, warranties, covenants or
agreements made by the applicable Purchaser in this Agreement or in the other
Transaction Documents.
18
4.9
Listing of Common Stock. The
Company hereby agrees to use best efforts to maintain the listing of the Common
Stock on a Trading Market, and as soon as reasonably practicable following
the
Closing (but not later than the earlier of the Effective Date and the first
anniversary of the Closing Date) to list all of the Shares on such Trading
Market. The Company further agrees, if the Company applies to have the Common
Stock traded on any other Trading Market, it will include in such application
all of the Shares, and will take such other action as is necessary to cause
all
of the Shares to be listed on such other Trading Market as promptly as possible.
The Company will take all action reasonably necessary to continue the listing
and trading of its Common Stock on a Trading Market and will comply in all
respects with the Company’s reporting, filing and other obligations under the
bylaws or rules of the Trading Market.
4.10
Equal Treatment of Purchasers.
No
consideration shall be offered or paid to any person to amend or consent to
a
waiver or modification of any provision of any of the Transaction Documents
unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision constitutes
a
separate right granted to each Purchaser by the Company and negotiated
separately by each Purchaser, and is intended to treat for the Company the
Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or
voting of Securities or otherwise.
4.11
Short
Sales and Confidentiality After The
Date Hereof.Each
Purchaser severally and not jointly with the other Purchasers covenants that
neither it nor any affiliates acting on its behalf or pursuant to any
understanding with it will execute any Short Sales during the period after
the
execution
of this Agreement
and
ending three months after the Closing Date. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that
until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company as described in Section 4.4, such Purchaser will
maintain, the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction). Each
Purchaser understands and acknowledges, severally and not jointly with any
other
Purchaser, that the Commission currently takes the position that coverage of
short sales of shares of the Common Stock “against the box” prior to the
Effective Date of the Registration Statement with the Securities is a violation
of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under
Section A, of the Manual of Publicly Available Telephone Interpretations, dated
July 1997, compiled by the Office of Chief Counsel, Division of Corporation
Finance.
19
4.12
Delivery of Securities Upon Closing.Immediately
upon closing each Purchaser will deliver a wire transfer corresponding to its
Purchase Amount set forth in the signature pages hereto
4.13Right
of
Participation.For
a
period of six months following the Closing Date, each of the Purchasers shall
have the right to participate in up to 35%
of any
offerings of equity securities or securities convertible into equity securities
by the Company (such
offering being a “Subsequent
Offering”).
The
Purchasers acknowledge that any right of participation conferred by this Section
4.13 is subject to all pre-existing rights of participation, rights of first
offer, rights of first refusal, and other pre-emptive rights that the Company
may have granted to other Purchasers, and the Company represents and warrants
that all of such rights have been disclosed in the Company’s SEC Filings. At
least seven business days prior to the closing of any Subsequent Offering,
the
Company shall deliver to each Purchaser, notice (the “Subsequent Offering
Notice”) of the proposed or intended Subsequent Offering. The Subsequent
Offering Notice shall (i) identify and describe the securities being offered
in
the Subsequent Offering, (ii) describe the price and other terms upon which
they
are to be issued, sold, or exchanged, and (iii) set forth the amount of
securities which are to be issued, sold, or exchanged under the Subsequent
Offering. In the event that a Purchaser wishes to participate in the Subsequent
Offering, such Purchaser shall deliver written notice to the Company of such
Purchaser’s intention to participate within three business days of receipt of
the Subsequent Offering Notice, and each of the Purchasers acknowledge that
it
may participate in the Subsequent Offering only upon the same price and terms
at
which the Subsequent Offering is made available to other investors in such
offering. If the Purchasers wish to purchase more than 35% of such offering
in
the aggregate, the amounts to be so purchased shall be cut back proportionately
from all Purchasers who are seeking to purchase in excess of their
respective its
pro
rata shares (based on the Purchasers’ respective ownership of Common Stock of
the Company at the time) of such offering until the aggregate amount to be
so
purchased is equal to 35% of such offering. Any
information set forth in a Subsequent Offering Notice and any discussions
relating to or arising from the Subsequent Offering Notice shall be deemed
to be
information delivered as part of the Subsequent Offering Notice and therefore
subject to the provisions of Section 4.6 hereof.
Article
V.
MISCELLANEOUS
5.1
Termination. This
Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations
hereunder only and without any effect whatsoever on the obligations between
the
Company and the other Purchasers, by written notice to the other parties, if
the
Closing has not been consummated on or before January 25, 2006; provided,
however, that no such termination will affect the right of any party
to
xxx for any breach by the other party (or parties).
20
5.2
Fees and Expenses.After
the
Closing, an aggregate total of $15,000 will be reimbursed by the Company for
the
Purchasers’ reasonable legal fees incurred in connection herewith. Except as
expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all transfer agent fees, stamp taxes and other taxes
and
duties levied in connection with the delivery of any Securities.
5.3
Entire Agreement.The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4
Notices.Any
and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number set forth on the signature
pages attached hereto prior to 5:30 p.m. (New York City time) on a Trading
Day,
(b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd
Trading
Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom
such
notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto.
5.5
Amendments; Xxxxxxx.Xx
provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be
a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
5.6
Headings.The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
5.7
Successors and Assigns.This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser. Any Purchaser may assign any or all of its rights
under this Agreement to any Person to whom such Purchaser assigns or transfers
any Securities, provided such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions hereof that apply
to
the “Purchasers”.
21
5.8
No
Third-Party Beneficiaries.This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set
forth
in Section 4.9.
5.9
Governing Law.All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of New York, without regard
to
the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, borough of Manhattan for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. The parties hereby waive all rights to a trial by jury. If
either party shall commence an action or proceeding to enforce any provisions
of
the Transaction Documents, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its attorneys’ fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding.
5.10
Execution.This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original
thereof.
5.11
Severability.If
any
provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
5.12
Rescission and Withdrawal Right.Notwithstanding
anything to the contrary contained in (and without limiting any similar
provisions of) the Transaction Documents, whenever any Purchaser exercises
a
right, election, demand or option under a Transaction Document and the Company
does not timely perform its related obligations within the periods therein
provided, then such Purchaser may rescind or withdraw, in its sole discretion
from time to time upon written notice to the Company, any relevant notice,
demand or election in whole or in part without prejudice to its future actions
and rights.
22
5.13
Replacement of Securities.If
any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft, or destruction
and
customary and reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement
Securities.
5.14
Xxxxxxxx.Xx
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Purchasers and the Company
will
be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agrees to waive in any action for specific performance
of
any such obligation the defense that a remedy at law would be
adequate.
5.15
Payment Set Xxxxx.Xx
the
extent that the Company makes a payment or payments to any Purchaser pursuant
to
any Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement
or
exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a trustee,
receiver or any other person under any law (including, without limitation,
any
bankruptcy law, state or federal law, common law or equitable cause of action),
then to the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force
and effect as if such payment had not been made or such enforcement or setoff
had not occurred.
5.16
Independent Nature of Purchasers’ Obligations and Rights.The
obligations of each Purchaser under any Transaction Document are several and
not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. Nothing contained herein or in any
Transaction Document, and no action taken by any Purchaser pursuant thereto,
shall be deemed to constitute the Purchasers as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents.
Each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out
of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. Each Purchaser has been represented by its own separate legal counsel
in their review and negotiation of the Transaction Documents. The Company has
elected to provide all Purchasers with the same terms and Transaction Documents
for the convenience of the Company and not because it was required or requested
to do so by the Purchasers.
23
5.17
Construction.The
parties agree that each of them and/or their respective counsel has reviewed
and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
(Signature
Pages Follow)
24
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
SPATIALIGHT,
INC.
|
Address
for Notice:
|
|
By:
/s/ Xxxxxxxx Xxxxxxx
Name:
Xxxxxxxx Xxxxxxx
Title:
Executive Vice President
|
0
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
|
|
With
a copy to (which shall not constitute notice):
Xxxxxx
Xxxx, Esq.
Xxxxx
Xxxx, LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Telephone:
000-000-0000
Fax:
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGE FOR PURCHASER FOLLOWS]
25
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:Central
States, Southeast and Southwest Areas Pension Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx X. Xxxxxxx
Name
of
Authorized Signatory: Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Mellon Securities Trust Company | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $248,900
Shares:
95,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
26
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
SEI
U.S. Small Companies Fund
Signature
of Authorized Signatory of Holder:
/s/Xxxxx X. Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Xxxxx Brothers Xxxxxxxx & Co. | ||
| Attn: BBH Physical Securities handling team | ||
| 000 Xxxxxxxx Xxxxxx | ||
|
Xxx
Xxxx, XX 00000-0000
|
Subscription
Amount: $31,440
Shares:
12,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
27
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder: SEI
Institutional Managed Trust, Small Cap Growth Fund
By:
Wellington Management Company, LLP as investment advisor
Signature
of Authorized Signatory of Holder:
/s/Xxxxx X. Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| The Bank of New York | ||
| Xxx Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX |
Subscription
Amount: $ 262,000
Shares:
100,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
28
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
SEI
Institutional Investments Trust, Small Cap Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| The Bank of New York | ||
| Xxx Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX |
Subscription
Amount: $248,900
Shares:
95,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
29
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
SEI
Institutional Investments Trust, Small/Mid Cap Equity Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| The Bank of New York | ||
| Xxx Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX |
Subscription
Amount: $ 222,700
Shares:
85,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
30
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder: Optimix
Investment Management Limited
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as
above):
| State Street Bank & Trust | ||
| Company Acct: Xxxxx Xxxxxx | ||
| 00 Xxxxx Xxxxxx Plaza Level – 3rd Floor | ||
| New York, NY |
Subscription
Amount: $36,680
Shares:
14,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
31
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Xxxxxxxx Global Fund Series, Inc. – Global Smaller Companies
Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| XX Xxxxxx Chase Bank | ||
| 4 New York Plaza, 11th Floor | ||
| Physical Reserves | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $116,590
Shares:
44,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
32
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Wellington Management Portfolios (Dublin) plc – Global Smaller Companies
Equity Portfolio
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| State Street Bank & Trust | ||
| Company Acct: Xxxxx Xxxxxx | ||
| 00 Xxxxx Xxxxxx Plaza Level – 3rd Floor | ||
| New York, NY |
Subscription
Amount: $60,260
Shares:
23,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
33
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Telstra Super Pty Ltd
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| The Bank of New York | ||
| Xxx Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX |
Subscription
Amount: $64,190
Shares:
24,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
34
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
JB
Were Global Small Companies Pooled Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| The Bank of New York | ||
| Xxx Xxxx Xxxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX |
Subscription
Amount: $303,920
Shares:
116,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
35
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Retail Employees Superannuation Trust
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| XX Xxxxxx Xxxxx Bank | ||
| 4 New York Plaza, 11th Floor | ||
| Physical Reserves | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $ 87,770
Shares:
33,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
36
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Australian Retirement Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| XX Xxxxxx Xxxxx Bank | ||
| 4 New York Plaza, 11th Floor | ||
| Physical Reserves | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $74,670
Shares:
28,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
37
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
JB
Were Global Small Companies Fund - CFS
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Citibank NA (908) | ||
| 00 Xxxxx Xxxxxx Xxxxx Xxxxx – 3rd Floor | ||
| New York, NY |
Subscription
Amount: $62,880
Shares:
24,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
38
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
BC
Telecom Pension Plan for Management and Exempt Employees
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Mellon Securities Trust Company | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $13,100
Shares:
5,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
39
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Maritime Life Discovery Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Mellon Securities Trust Company | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $53,710
Shares:
20,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
40
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Pension Plan for Management and Professionals of
TELUSCORP-ALPHA
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Mellon Securities Trust Company | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $26,200
Shares:
10,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
41
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Talvest Small Cap Cdn. Equity Fund
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Mellon Securities Trust Company | ||
| 000 Xxxxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Subscription
Amount: $9,170
Shares:
3,500
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
42
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Emergency Services Superannuation Board
Signature
of Authorized Signatory of Holder:
/s/
Xxxxx Xxxxxxx
Name
of
Authorized Signatory:
Xxxxx
X. Xxxxxxx
Title
of
Authorized Signatory: Vice
President and Counsel
Address
for Notice of Purchaser:
| Care of: | Wellington Management Company, LLP | |
| Attention: Xxxxxxx Xxxxx | ||
| 00 Xxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Bank of New York | ||
| One Xxxx Xxxxxx, 0xx Xxxxx | ||
| Window A | ||
| New York, |
Subscription
Amount: $41,920
Shares:
16,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
43
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Xxxxxxx Investment Company, Inc.
Signature
of Authorized Signatory of Holder:
/s/
Xxxxxxx Xxxxx
Name
of
Authorized Signatory:
Xxxxxxx Xxxxx
Title
of
Authorized Signatory: Assistant
Corporate Secretary
Address
for Notice of Purchaser:
| 000 XX Xxxxx Xxxx, Xxx. 000 | ||
| Xxxxxxxx, XX 00000 |
Address
for Delivery of Securities for Purchaser (if not same as above):
| Same as above |
Subscription
Amount: $786,000
Shares:
300,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
44
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Braeburn Special Opportunities Fund, LLC
Signature
of Authorized Signatory of Holder:
Name
of
Authorized Signatory: /s/Xxx
X. Xxxxxx
Title
of
Authorized Signatory: Portfolio
Manager
Address
for Notice of Purchaser:
00
Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Securities for Purchaser (if not same as above):
Subscription
Amount: $484,700
Shares:
185,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
45
[PURCHASER
SIGNATURE PAGES TO HDTV SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Holder:
Braeburn Special Opportunities Fund II, LLC
Signature
of Authorized Signatory of Holder:
Name
of
Authorized Signatory: /s/Xxx
X. Xxxxxx
Title
of
Authorized Signatory: Portfolio
Manager
Address
for Notice of Purchaser:
00
Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx, XX 00000
Address
for Delivery of Securities for Purchaser (if not same as above):
Subscription
Amount: $170,300
Shares:
65,000
EIN
Number: [PROVIDE
THIS UNDER SEPARATE COVER]
46
Annex
A
CLOSING
STATEMENT
Pursuant
to the attached Securities Purchase Agreement, dated as of the date hereto,
the
purchasers shall purchase up to $6,500,000 of Common Stock from SpatiaLight,
Inc. (the “Company”).
All
funds will be wired into a trust account maintained by ____________, counsel
to
the Company. All funds will be disbursed in accordance with this Closing
Statement.
Disbursement
Date: January
[__], 2006
|
I.
PURCHASE
PRICE
|
|
|
Gross
Proceeds to be Received in Trust
|
$
|
|
II. DISBURSEMENTS
|
|
|
|
$
|
|
|
$
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Total
Amount Disbursed:
|
$
|
|
WIRE
INSTRUCTIONS:
|
|
|
To:
_____________________________________
|
|
|
To:
_____________________________________
|
47
