STOCK PURCHASE AGREEMENT
Exhibit 1
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”),
dated as of January 21, 2011, is made by and among Xxx X. Xxxx (“Xxxx”
or “Seller”),
Ironbound Partners Fund, LLC, a Delaware limited liability
company (the “Purchaser”),
and Ascend Acquisition Corp., a Delaware corporation (the “Company”).
RECITALS
WHEREAS,
Rice is the sole record and beneficial owner of 218,550 shares (the “Rice
Shares”) of the common stock, par value $0.0001 per share (the “Common
Stock”), of the Company; and
WHEREAS,
Rice is the sole holder of convertible promissory notes issued by the Company
(the “Notes”)
in the aggregate principal amount of $320,000, and interest accrued and unpaid
thereon in the amount of $26,830, all of which principal and interest is
convertible as of the date hereof into an aggregate of 7,075,000 shares of
Common Stock; and
WHEREAS,
upon conversion of the Notes, subject to certain rights held by third parties as
described herein, Rice shall be the beneficial owner of the shares of Common
Stock into which the Notes are converted (the “Convertible
Note Shares”, collectively with the Rice Shares, the “Shares”);
and
WHEREAS,
the Shares represent approximately 92% of the outstanding capital stock of the
Company in the aggregate, giving effect to the conversion of the Notes;
and
WHEREAS,
the Seller desires to convert the Notes and sell all of the Shares to the
Purchaser; and
WHEREAS,
the Purchaser desires to acquire the Shares from the Seller, in the manner and
on the terms and conditions hereinafter set forth; and
WHEREAS,
in connection with the Purchaser’s purchase of the Shares, the Purchaser, the
Seller and the Company desire to establish certain rights and obligations among
themselves.
AGREEMENTS
NOW,
THEREFORE, in consideration of these premises, the mutual covenants and
agreements herein contained and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Seller, the
Purchaser and the Company hereby agree as follows:
SECTION
I DEFINITIONS.
The
following terms when used in this Agreement have the following respective
meanings:
“1933
Act” means the Securities Act of 1933, as amended.
“1934
Act” means the Securities Exchange Act of 1934, as amended.
“Affiliate”
means with respect to any Person, any (i) officer, director, partner or holder
of more than 10% of the outstanding shares or equity interests of such Person,
(ii) any relative of such Person, or (iii) any other Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person. A Person will be deemed to control another Person if such
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the “controlled” Person, whether
through ownership of voting securities, by contract, or otherwise.
“Business
Day” means a day other than Saturday, Sunday or statutory holiday in the
State of New York and in the event that any action to be taken hereunder falls
on a day which is not a Business Day, then such action shall be taken on the
next succeeding Business Day.
“Bylaws”
means the Bylaws of the Company, as amended.
“Certificate
of Incorporation” means the Second Amended and Restated Certificate
of Incorporation of the Company, as amended, and as on file with the Secretary
of State of the State of Delaware on the date of this Agreement.
“Closing
Date” has the meaning set forth in Section 3.1
hereof.
“Closing”
has the meaning set forth in Section 3.1
hereof.
“Common
Stock” has the meaning set forth in the recitals hereto.
“Company”
has the meaning set forth in the recitals hereto.
“Convertible
Note Shares” has the meaning set forth in the recitals
hereto.
“Corporate
Records” shall have the meaning as used in Section 4.1(p)
hereof.
“Encumbrances”
shall have the meaning as used in Section 4.1(d)
hereof.
“Fully-Diluted
Basis” shall mean the aggregate of all shares of outstanding Common
Stock, all shares of outstanding Preferred Stock on an as-converted basis, all
outstanding options on an as-exercised basis, and all convertible securities or
other conversion rights on an as-converted basis.
“GAAP”
means generally accepted accounting principles in the United
States.
“Governmental
Authority” means the United States, any state or municipality, the
government of any foreign country, any subdivision of any of the foregoing, or
any authority, department, commission, board, bureau, agency, court, or
instrumentality of any of the foregoing.
“Information
Statement” means the information statement regarding a change in the
majority of directors of the Company (as contemplated by Section 5.2 of this
Agreement) to be filed pursuant to Rule 14f-1 as promulgated under the 1934 Act,
together with any amendments or supplements thereof.
“Knowledge”
as to the Company means the actual knowledge of the Seller.
“Lien”
means any mortgage, lien, pledge, security interest, easement, conditional sale
or other title retention agreement, or other encumbrance of any
kind.
“Material
Adverse Effect” means a change or effect in the condition (financial or
otherwise), properties, assets, liabilities, rights, prospects, operations or
business of the Company which change or effect, individually or in the
aggregate, could reasonably be expected to be materially adverse to such
condition, properties, assets, liabilities, rights, prospects, operations or
business.
“Minutes”
shall have the meaning as used in Section 4.1(p)
hereof.
“Notes”
has the meaning set forth in the recitals hereto.
“OTCBB”
has the meaning set forth in Section 4.1(o)
hereof.
“Person” means an individual,
corporation, limited liability company, partnership, joint venture, trust,
unincorporated organization, or Governmental Authority.
“Preferred
Stock” means the preferred stock, par value $0.0001 per share, of the
Company.
“Purchase
Price” means Three Hundred and Ten Thousand Dollars
($310,000.00).
“Returns”
shall have the meaning as used in Section 4.1(n)
hereof.
“Rice
Shares” has the meaning set forth in the recitals hereto.
“SEC”
means the Securities and Exchange Commission.
“SEC
Filings” means the Company’s Annual Report on Form 10-K for the
years ended December 31, 2008 and December 31, 2009, Quarterly Reports on
Form 10-Q for the quarters ended March 31, June 30 and September
30, 2010 and other publicly-available filings made by the Company under the 1933
Act or Section 13 or Section 15(d) of the 1934 Act, in all cases, as amended
from time to time.
“Shares”
shall have the meaning set forth in the recitals hereto.
“Tax”
or “Taxes”
means any and all federal, state, local and foreign taxes, including, without
limitation, gross receipts, income, profits, sales, use, occupation, value
added, ad valorem, transfer, franchise, withholding, payroll, recapture,
employment, excise and property taxes, assessments, governmental charges and
duties together with all interest, penalties and additions imposed with respect
to any such amounts and any obligations under any agreements or arrangements
with any other person with respect to any such amounts and including any
liability of a predecessor entity for any such amounts.
“Terminated
Agreements” has the meaning set forth in Section 4.1(t)
hereof.
SECTION
II PURCHASE AND SALE OF
SHARES.
2.1 Conversion of
Notes. Immediately
prior to the execution of this Agreement and the Closing, Rice has converted the
entire outstanding principal of the Notes and all accrued and unpaid interest
thereon on the terms of the Notes into an aggregate of 7,075,000 Convertible
Note Shares. Subject to the rights described on Schedule 2.1
hereto, Seller solely owns all such Convertible Note Shares and all 218,550
of the Rice Shares, which collectively comprises 7,293,550 Shares.
2.2 Purchase of
Shares. Based upon the representations, warranties, covenants
and agreements of the parties set forth in this Agreement, the Seller hereby
sells to the Purchaser, and the Purchaser hereby purchases from the Seller, all
of the Shares, which represent approximately 92% of the outstanding Common Stock
of the Company on the Closing Date, on a Fully-Diluted Basis.
2.3 Payment for
Shares. For
all of the Shares, the Purchaser hereby pays to the Seller the Purchase
Price. The Purchase Price is being paid by wire transfers of
immediately available funds to the accounts designated in writing by the Seller,
which written instructions are attached hereto as Exhibit A hereto.
SECTION
III THE
CLOSING.
3.1 Closing. The
closing of the sale of the Shares pursuant to Section II (the “Closing”)
is taking place at or through the offices of Xxxxxxxx Xxxxxx, The
Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 concurrently
with the execution of this Agreement. The date on which the sale of
the Shares is consummated is referred to herein as the “Closing
Date.”
3.2 Deliveries by the
Seller. At
the Closing, the Seller is delivering or is causing to be delivered to the
Purchaser the following items (in addition to any other items required to be
delivered to the Purchaser pursuant to any other provision of this
Agreement):
(a) original
certificates representing the Shares being sold by the Seller to the Purchaser
pursuant to Section II hereof, duly recorded on the books of the Company, along
with Medallion-guaranteed stock powers for such certificates executed in
blank;
(b) a
certificate of the Secretary of State of the State of Delaware (or other proof
acceptable to Purchaser) as to the good standing of the Company dated
within three Business Days prior to the Closing Date;
(c) resignations
of Xxxxxxx X. Xxxxx as a director and officer of the Company and Rice as an
officer of the Company;
(d) duly
executed corporate resolutions of the Board of Directors of the Company
authorizing execution and performance of this Agreement, fixing the size of the
Board of Directors of the Company at two members, accepting the resignation of
Xx. Xxxxx as a director and officer of the Company and Rice as an officer of the
Company, appointing Xxxxxxxx Xxxxxxx as a director and Chief Executive Officer
of the Company, and authorizing and directing all other actions and filings by
the Company as required or contemplated by this Agreement;
(e) a
copy of the Certificate of Incorporation of the Company, certified by the
Secretary of State of the State of Delaware’
(f) a
copy of the Bylaws of the Company, certified by the Chief Executive Officer of
the Company;
(g) copies
of any codes of ethics, xxxxxxx xxxxxxx policies, committee charters and similar
documents that have been adopted or implemented by the Company and which are
currently in effect;
(h)
an opinion of counsel to the Seller in the form of Exhibit B hereto;
(i)
all records and documents relating to the Company, wherever located,
including, but not limited to, all books, records, supplier and customer lists
and files, government filings, Tax Returns, consent decrees, orders,
correspondence, financial information and records, electronic files containing
any financial information and records, and other documents used in or associated
with the Company; and
(j)
evidence, reasonably satisfactory to the Purchaser, of the
termination or amendment of the Terminated Agreements.
3.3 Deliveries by the
Purchaser. At
the Closing, the Purchaser is delivering or causing to be delivered to the
Seller (in addition to any other items required to be delivered to the Seller
pursuant to any other provision of this Agreement):
(a) payment
of the Purchase Price by wire transfer of immediately available funds;
and
(b) duly
executed company resolutions of the manager of the Purchaser authorizing
execution and performance of this Agreement and authorizing and directing all
other actions and filings by the Purchaser required or contemplated by this
Agreement.
SECTION
IV REPRESENTATIONS AND
WARRANTIES.
4.1 Representations and
Warranties of the Seller. In
order to induce the Purchaser to purchase the Shares, the Seller represents and
warrants to the Purchaser that:
(a) Organization and
Standing. The Company is duly incorporated and validly
existing under the laws of the State of Delaware, and has all requisite
corporate power and authority to own or lease its properties and assets and to
conduct its business as it is presently being conducted. The Company
does not own any equity interest, directly or indirectly, in any other Person or
business enterprise. The Company is not required to be qualified to
do business in any foreign jurisdiction. The Company has no subsidiaries. Except
as have already occurred or as contemplated by Section 5.1 hereof, no corporate
proceedings on the part of the Company (including the approval of the Company’s
Board of Directors or shareholders) are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby.
(b) Capitalization. At
the date of this Agreement and after giving effect to the conversion of the
Notes, the authorized capital stock of the Company consists of (i) 300,000,000
shares of Common Stock, of which 7,931,675 shares are issued and
outstanding, and (ii) 1,000,000 shares of Preferred Stock, of which no shares
are issued and outstanding. To the Knowledge of the Seller, the outstanding
shares of Common Stock are held by approximately 78 beneficial holders. The
Company’s public warrants issued in connection with the initial public offering
expired by their terms on May 10, 2010. The Company has no other class or series
of equity securities authorized, issued, reserved for issuance or
outstanding. Giving effect to the conversion of the Notes and
except as Set forth on Schedule 2.1 hereto, there are (x) no outstanding
options, offers, warrants, conversion rights, contracts or other rights to
subscribe for or to purchase from the Company, or agreements obligating the
Company to issue, transfer, or sell (whether formal or informal, written or
oral, firm or contingent), shares of capital stock or other securities of the
Company (whether debt, equity, or a combination thereof) or obligating the
Company to grant, extend, or enter into any such agreement and (y) no agreements
or other understandings (whether formal or informal, written or oral, firm or
contingent) which require or may require the Company to repurchase any of its
Common Stock. There are no preemptive or similar rights granted by
the Company with respect to the Company’s capital stock, including any such
rights held by the Seller and his Affiliates. There are no
anti-dilution or price adjustment provisions contained in any security issued by
the Company (or in any agreement providing rights to security holders),
including any security held by the Seller and his Affiliates. Except
as set forth on Schedule 4.1(b),
the Company is not a party to, and, to the knowledge of the Seller, no
Stockholder is a party to, any registration rights agreements, voting
agreements, voting trusts, proxies or any other agreements, instruments or
understandings with respect to the voting of any shares of the capital stock of
the Company, or any agreement with respect to the transferability, purchase or
redemption of any shares of the capital stock of the Company. The
sale of the Shares to the Purchaser does not obligate the Company to issue any
shares of capital stock or other securities to any Person and will not result in
a right of any holder of Company securities, by agreement with the Company, to
adjust the exercise, conversion, exchange or reset price under such
securities. The outstanding Common Stock is all duly and validly
authorized and issued, fully paid and nonassessable. As of the date
hereof, there are no shares of Common Stock reserved for issuance upon exercise
of outstanding stock options and no shares reserved for issuance upon exercise
of outstanding warrants. The Company does not
have issued or outstanding any convertible securities other than the Notes. The
Shares represent approximately 92% of the outstanding
Common Stock of the Company, on a Fully-Diluted Basis.
(c) Capacity of the Seller;
Authorization; Execution of Agreements. Each of the Company
and the Seller has all requisite power, authority and capacity to enter into
this Agreement and to perform the transactions and obligations to be performed
by it hereunder. The execution and delivery of this Agreement by each
of the Company and the Seller, and the performance by each of the Company and
the Seller of the transactions and obligations contemplated hereby, including,
without limitation, the sale of the Shares to the Purchaser hereunder, have been
duly authorized by all requisite action of the Company and the
Seller. This Agreement has been duly executed and delivered by each
of the Company and the Seller. This Agreement constitutes a valid and
legally binding agreement of each of the Company and the Seller, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws of the
United States (both state and federal), affecting the enforcement of creditors’
rights or remedies in general from time to time in effect and the exercise by
courts of equity powers or their application of principles of public
policy.
(d) Title to
Shares. Subject to the ownership rights described on Schedule 2.1 hereto,
Seller is the sole record and beneficial owner of the Shares and has sole
managerial and dispositive authority with respect to the Shares. Seller has not granted
any person a proxy with respect to the Shares that has not expired or been
validly withdrawn. The sale and delivery by the Seller of the Shares
to the Purchaser pursuant to this Agreement will vest in the Purchaser legal and
valid title to the Shares, free and clear of any and all Liens, security
interests, adverse claims or other encumbrances of any character whatsoever
(“Encumbrances”) (other
than Encumbrances created by the Purchaser and restrictions on the resale of the
Shares under applicable securities laws).
(e) Shares and
Notes.
(i) The
Rice Shares (A) have been duly authorized, validly issued, fully paid and
are nonassessable, and will be such at the Closing, (B) were issued in
compliance with all applicable United States federal and state securities laws,
and will be in compliance with such laws at the Closing, (C) subject to
restrictions under this Agreement, and applicable United States federal and
state securities laws, have the rights and preferences set forth in the
Certificate of Incorporation and will have such rights and preferences at the
Closing, and (D) are free and clear of all Liens and will be free and clear
of all Liens at the Closing. The entire principal amount of the Notes
and all accrued and unpaid interest thereon has been converted on its terms and
the Convertible Note Shares (W) have been duly authorized, validly issued, fully
paid and nonassessable, (X) were issued in compliance with all applicable
United States federal and state securities laws, and in compliance with such
laws, (Y) subject to restrictions under this Agreement, and applicable
United States federal and state securities laws, have the rights and preferences
set forth in the Certificate of Incorporation, and (Z) are free and clear
of all Liens.
(ii) The
Notes (A) were duly authorized for issuance and executed by the Company, (B)
were issued in compliance with all applicable United States federal and state
securities laws, and (C) constituted valid and binding agreements of the
Company, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding at law or in equity).
(f) Conflicts;
Defaults. The execution and delivery of this Agreement by each
of the Company and the Seller and the performance by each of the Company and the
Seller of the transactions and obligations contemplated hereby to be performed
by it do not (i) violate, conflict with, or constitute a default under any of
the terms or provisions of, the Certificate of Incorporation, the Bylaws, or any
provisions of, or result in the acceleration of any obligation under, any
contract, note, debt instrument, security agreement or other instrument to which
either the Company or Seller is a party or by which either the Company, Seller,
or any of the Company’s or Seller’s assets, is bound; (ii) result in the
creation or imposition of any Liens or claims upon the Company’s or Seller’s
assets or upon any of the shares of capital stock of the Company; (iii)
constitute a violation of any law, statute, judgment, decree, order, rule, or
regulation of a Governmental Authority applicable to the Company or the Seller;
or (iv) constitute an event which, after notice or lapse of time or both, would
result in any of the foregoing. The Company is not presently in
violation of its Certificate of Incorporation or Bylaws.
(g) Securities
Laws. The Company has complied in all material respects with
applicable federal securities laws, rules and regulations, including the
Xxxxxxxx-Xxxxx Act of 2002, as such laws, rules and regulations apply to the
Company and its securities. All securities of the Company have been
issued in accordance with applicable federal securities laws, rules and
regulations. There are no stop orders in effect with respect to any securities
of the Company.
(h) SEC
Filings. The SEC Filings, when filed, complied in all material
respects with the requirements of the 1933 Act and Section 13 or Section 15(d)
of the 1934 Act, as such act or such sections were applicable as of the dates
when filed, and did not, as of the dates when filed, contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that when a filing was a preliminary filing or was subsequently amended, the
preceding representation and warranty shall be made only with respect to the
definitive or amended version of such filing. The SEC Filings are all
of the filings that the Company was required to file with the SEC during the
periods covered thereby and all such filings were made on a timely basis when
due, except as set forth on Schedule
4.1(h). The financial statements of the Company included in
the SEC Filings complied in all material respects with the rules and regulations
of the SEC with respect thereto as in effect at the time of
filing. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis during the periods covered by such financial
statements, 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 as of and for the dates thereof and for the periods
indicated, 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. All material agreements to which the
Company is a party or to which the property or assets of the Company are subject
and which are required to be disclosed pursuant to the 1934 Act are included as
part of or specifically identified in the SEC Filings.
(i)
Material Changes.
Since the date of the latest audited financial statements included within the
SEC Filings, except as specifically disclosed in the SEC Filings, (i) there has
been no event that could result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than trade
payables, (iii) the Company has not altered its method of accounting or the
identity of its auditors, except as disclosed in its SEC Filings, (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.
(j)
Absence of
Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the Knowledge of the
Seller, threatened in writing against or affecting the Company.
(k) Brokers, Finders, and
Agents. Neither the Company nor the Seller is, directly or
indirectly, obligated to anyone acting as broker, finder or in any other similar
capacity in connection with this Agreement or the transactions contemplated
hereby. No Person has or, immediately following the consummation of
the transactions contemplated by this Agreement, will have, any right, interest
or valid claim against the Company, the Seller or the Purchaser for any
commission, fee or other compensation as a finder or broker in connection with
the transactions contemplated by this Agreement, nor are there any brokers’ or
finders’ fees or any payments or promises of payment of similar nature, however
characterized, that have been paid or that are or may become payable in
connection with the transactions contemplated by this Agreement, as a result of
any agreement or arrangement made by the Company or the Seller.
(l)
Application of Takeover
Protections. There is no 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 Bylaws that is or could become applicable to the Purchaser or
the Seller as a result of the Purchaser and the Seller fulfilling their
obligations or exercising their rights under this Agreement, including without
limitation, as a result of the purchase of the Shares by the Purchaser and the
Purchaser’s ownership of the Shares.
(m) Absence of Businesses and
Liabilities. The Company is not engaged in any business and
the Company has no liabilities or obligations of any kind or nature, except as
set forth on Schedule
4.1(m)(i) hereto. The Company is not a party or bound by any
agreements, contracts, licenses or orders or similar arrangements of any kind,
except as set froth on Schedule 4.1(m)(ii)
hereto.
(n) Taxes.
(i) The
Company has timely filed all federal, state, local and foreign returns,
estimates, information statements and reports relating to Taxes (“Returns”)
required to be filed by the Company with any Tax authority prior to the date
hereof, except such Returns which are not material to the
Company. All such Returns are true, correct and complete and the
Company has no basis to believe that any audit of the Returns would cause a
Material Adverse Effect upon the Company or its financial
condition. The Company has paid all Taxes shown to be due on such
Returns.
(ii) All
Taxes that the Company is required by law to withhold or collect have been duly
withheld or collected, and have been timely paid over to the proper governmental
authorities to the extent due and payable; provided, however ,that the Company
may owe not more than $1,100 to the State of Pennsylvania (“Pennsylvania
Tax”). It is hereby agreed that the actual amount of the Pennsylvania
Tax (whether more or less than the foregoing estimate) shall be the
responsibility of the Seller and Seller shall promptly pay same or otherwise
take such necessary actions as to eliminate such tax liability. For
clarity, it is hereby acknowledged that any amounts due for the Pennsylvania Tax
that remain unpaid or unremedied are covered by the indemnity obligations owed
by Seller to Purchaser under Section 5.8A hereto.
(iii) The
Company has not been delinquent in the payment of any material Tax nor is there
any material Tax deficiency outstanding, proposed or assessed against the
Company, nor has the Company executed any unexpired waiver of any statute of
limitations on or extending the period for the assessment or collection of any
Tax.
(iv) No
audit or other examination of any Returns of the Company by any Tax authority is
known by the Company to be presently in progress, nor has the Company been
notified of any request for such an audit or other examination.
(v) No
adjustment relating to any Returns filed by the Company has been proposed in
writing, formally or informally, by any Tax authority to the Company or any
representative thereof.
(vi) The
Company has no liability for any Taxes for its current fiscal year, whether or
not such Taxes are currently due and payable.
(o) OTC Bulletin Board
Quotation. The Common Stock is quoted on the Over-the-Counter
Bulletin Board (the “OTCBB”). There
is no known action or proceeding pending or, to the Seller’s Knowledge,
threatened against the Company by Nasdaq or the Financial Industry Regulatory
Authority with respect to any intention by such entities to prohibit or
terminate the quotation of the Common Stock on the OTCBB. There is no action
pending or threatened, to the Seller’s Knowledge, by any market maker in the
Common Stock to discontinue its market making activities with respect
thereto.
(p) Corporate
Records. All records and documents relating to the Company,
including, but not limited to, the books, shareholder lists, government filings,
Tax Returns, consent decrees, orders, and correspondence, financial information
and records (including any electronic files containing any financial information
and records), and other documents used in or associated with the Company (the
“Corporate
Records”) are true, complete and accurate in all material
respects. The Company has maintained minutes for all meetings of its
Board of Directors and committees thereof and copies of all consents in lieu of
meetings of the Board of Directors and all such minutes and consents are true,
complete and accurate records of all such meetings and consents in lieu of
meetings of the Board of Directors of the Company (and any committees thereof),
similar governing bodies and stockholders since the Company’s inception
(collectively, the “Minutes”). Copies
of such Corporate Records of the Company and the Minutes currently in the
possession of the Company, have been heretofore delivered to the Purchaser; the
original Corporate Records and Minutes, will be delivered to the Purchaser at
Closing pursuant to Section
3.2(i).
(q) Bank
Accounts. Schedule 4.1(q) sets
forth each bank account maintained by the Company, including the bank name,
branch address, exact account name and balance as of the date
hereof.
(r) Insurance Policies.
Schedule 4.1(r)
sets forth each insurance policy maintained by or on behalf of the Company, its
officers or directors, including the name of each insurance carrier, the policy
number, policy type and coverage amounts.
(s) Recent Financial
Transactions. Attached hereto as Schedule 4.1(s) is a
ledger of all payments made by the Company between September 30, 2010 and the
date hereof. This ledger was prepared from the books and records of
the Company and represents all payments made by the Company during this time
period.
(t) Termination of
Agreements. The
Seller has caused the Company to terminate or otherwise amend the contracts or
arrangements listed on Schedule 4.1(t)
hereto, effective as of the date hereof, as indicated thereon (such contracts or
agreements being “Terminated
Agreements”). The Company has incurred no liability as a
result of such termination or amendment.
(v) Disclosure. All
disclosure materials provided to the Purchaser regarding the Company, its
business and the transactions contemplated hereby, including the Schedules to
this Agreement, furnished by or on behalf of the Seller or the Company are true
and correct in all material respects and as otherwise contemplated in this
Agreement 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
not misleading. No event or circumstance has occurred or information
exists with respect to the Company or its business, properties, operations or
financial condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company, but which has not been so
publicly announced or disclosed. Each of the Company and the Seller
acknowledges and agrees that the Purchaser does not make or has not made (i) any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 4.2 or
(ii) any statement, commitment or promise to the Seller or any of his
representatives which is or was an inducement to the Company or the Seller to
enter into this Agreement, other than as set forth in this
Agreement.
4.2 Representations and
Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Seller that:
(a) Organization and
Standing. Purchaser is duly organized and validly existing
under the laws of the State of Delaware, and has all requisite company power and
authority to own or lease its properties and assets and to conduct its business
as it is presently being conducted. Except as have already occurred
or as contemplated by Section 5.1 hereof, no company proceedings on the part of
the Purchaser are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
(b) Investment
Intent. The Shares being purchased hereunder by the Purchaser
are being purchased for its own account and are not being purchased with the
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the 1933 Act. The Purchaser understands
that such Shares have not been registered under the 1933 Act by reason of their
issuance in a transaction exempt from the registration and prospectus delivery
requirements of the 1933 Act pursuant to Section 4(2) thereof and/or the
provisions of Rule 506 of Regulation D promulgated thereunder, and under the
securities laws of applicable states and agrees to deliver to the Seller, if
requested by the Seller, an investment letter in customary form. The
Purchaser further understands that the certificates representing such Shares
bear a legend substantially similar to the following and agrees that it will
hold such Shares subject thereto:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY PORTION HEREOF OR INTEREST HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE
SAME IS REGISTERED UNDER SAID ACTS AND APPLICABLE STATE SECURITIES LAWS OR
UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE COMPANY SHALL
HAVE RECEIVED, AT THE EXPENSE OF THE HOLDER HEREOF, EVIDENCE OF SUCH EXEMPTION
REASONABLY SATISFACTORY TO THE COMPANY (WHICH MAY INCLUDE, AMONG OTHER THINGS,
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY).
(c) Capacity of the Purchaser;
Execution of Agreement. The Purchaser has all requisite power,
authority and capacity to enter into this Agreement and to perform the
transactions and obligations to be performed by it hereunder. The
execution and delivery of this Agreement, and the performance by the Purchaser
of the transactions and obligations contemplated hereby have been duly
authorized by all requisite company action of the
Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and legally binding agreement of the
Purchaser, enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws, both state and federal, affecting the enforcement of
creditors’ rights or remedies in general from time to time in effect and the
exercise by courts of equity powers or their application of principles of public
policy.
(d) Accredited
Investor. The Purchaser is an “accredited
investor” as defined in Rule 501(a) of Regulation D promulgated under the
1933 Act.
(e) Suitability and
Sophistication. The Purchaser has (i) such knowledge and
experience in financial and business matters that it is capable of independently
evaluating the risks and merits of purchasing the Shares it is purchasing; (ii)
independently evaluated the risks and merits of purchasing such Shares and has
independently determined that the Shares are a suitable investment for him; and
(iii) sufficient financial resources to bear the loss of his entire investment
in such Shares. The Purchaser has had an opportunity to review the
SEC Filings.
(f)
Absence of
Litigation. There is no action, suit, claim, proceeding,
inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the Knowledge of the
Purchaser, threatened in writing against or affecting the Purchaser that would
prevent the Purchaser from consummating the transactions contemplated by this
Agreement.
(g) Absence Conflicts;
Defaults. The execution and delivery of this Agreement by the
Purchaser and the performance by it of the transactions and obligations
contemplated hereby to be performed by it do not (i) violate, conflict with, or
constitute a default under any of the terms or provisions of, the Purchaser’s
articles of formation or operating agreement or any provisions of, or result in
the acceleration of any obligation under, any contract, note, debt instrument,
security agreement or other instrument to which the Purchaser is a party or by
which the Purchaser or its assets, is bound; (ii) result in the creation or
imposition of any Liens or claims upon the Purchaser’s assets or upon any of the
capital stock of the Purchaser; (iii) constitute a violation of any law,
statute, judgment, decree, order, rule, or regulation of a Governmental
Authority applicable to the Purchaser; or (iv) constitute an event which, after
notice or lapse of time or both, would result in any of the
foregoing.
(h) Brokers, Finders, and
Agents. The Purchaser is not, directly or indirectly,
obligated to anyone acting as broker, finder, or in any other similar capacity
in connection with this Agreement or the transactions contemplated hereby; and
no Person has or, immediately following the consummation of the transactions
contemplated by this Agreement, will have, any right, interest or valid claim
against the Company, the Seller or the Purchaser for any commission, fee or
other compensation as a finder or broker in connection with the transactions
contemplated by this Agreement, nor are there any brokers’ or finders’ fees or
any payments or promises of payment of similar nature, however characterized,
that have been paid or that are or may become payable in connection with the
transactions contemplated by this Agreement, as a result of any agreement or
arrangement made by the Purchaser.
(g) Rule
144. The Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the 1933 Act or unless an
exemption from such registration is available. The Purchaser is aware
of the provisions of Rule 144 promulgated under the 1933 Act and the limitations
therein with respect to the securities of shell companies.
SECTION
V COVENANTS OF THE
PARTIES.
5.1 Information
Statement.
(a) As
soon as practicable after the date hereof and after the Purchaser has
advanced funds or made other arrangements therefor, the Company shall, and
the Seller and Purchaser shall cause the Company to, file and distribute, at the
Company’s expense, an Information Statement for purposes of notifying the
Company’s stockholders of the change of control of the Company that will result
from the composition of the Board of Directors as contemplated by Section 5.2
hereto. The Purchaser and the Seller shall provide all information
reasonably requested by the Company that is within their control and is
necessary for inclusion in the Information Statement.
(b) The
Seller agrees that the information supplied by it for the Information Statement
shall not, at the time the Information Statement is filed with the SEC or
distributed to the stockholders of the Company, or at the Change of Control
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, not misleading. If, at any time prior to the Change of
Control Date, any event, circumstance or change relating to the Seller occurs
that should be set forth in or described in an amendment to the Information
Statement, the Seller shall promptly inform the Purchaser and the Company and
the Company shall promptly file and distribute such amendment to the Information
Statement.
(c) The
Purchaser agrees that the information supplied by it for the Information
Statement shall not, at the time the Information Statement is filed with the SEC
or distributed to the stockholders of the Company, or at the Change of Control
Date, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, not misleading. If, at any time prior to the Change of
Control Date, any event, circumstance or change relating to the Purchaser occurs
that should be set forth in or described in an amendment to the Information
Statement, the Purchaser shall promptly inform the Seller and the Company and
the Company shall promptly file and distribute such amendment to the Information
Statement.
(d) The
Information Statement and all other documents that the Company is responsible
for filing with the SEC in connection with the transactions contemplated herein
will comply as to form and substance in all material respects with the
applicable requirements of the Act and the rules and regulations thereunder and
the Exchange Act and the rules and regulations thereunder.
5.2 Change in Board;
Officers. As soon as practicable after the tenth day following
the filing of the Information Statement with the SEC and the mailing of the same
to Company stockholders (or such later date as selected by the Purchaser within
30 days of such filing), Rice shall resign from the Board of Directors of the
Company and, immediately after such resignation, the Board of the Company shall
be comprised of a number of members set by the remaining director, all of whom
shall be nominated by Purchaser. The date on which the Board of
Directors is changed as described in this Section 5.2 shall be referred to as
the “Change in Control
Date.” At the Change of Control Date, Rice shall resign as a member of
the Board of Directors (as constituted after giving effect to this Section 5.2)
and the Board shall appoint the designees determined by the Purchaser as the
officers of the Company.
5.3 Commercially Reasonable Best
Efforts. Subject to the terms and conditions hereof, each party will use
commercially reasonable best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement as promptly as practicable, including (i) preparing and filing as
promptly as practicable all documentation to effect all necessary applications,
notices, petitions, filings, tax ruling requests and other documents and to
obtain as promptly as practicable all consents, waivers, licenses, orders,
registrations, approvals, permits, tax rulings and authorizations necessary or
advisable to be obtained from any Person and/or any Governmental Authority in
order to consummate any of the transactions contemplated by this Agreement, (ii)
executing and delivering such other documents, instruments and agreements as any
party hereto shall reasonably request, and (iii) taking all reasonable steps as
may be necessary to obtain all such material consents, waivers, licenses,
registrations, permits, authorizations, tax rulings, orders and
approvals. Notwithstanding the foregoing, in no event shall any party
have any obligation, in order to consummate the transactions contemplated
hereby, to (a) take any action(s) that would result in a material adverse change
in the benefits to the Seller on the one hand (specifically the payment or
advancement by the Seller of any expenses required to satisfy a Company
obligation) or to the Purchaser on the other of this Agreement, or (b) dispose
of any material assets or make any material change in the Company’s business
other than as contemplated by this Agreement, or (c) expend any material amount
of funds or otherwise incur any material burden other than those contemplated by
this Agreement.
5.4 Certain Filings; Cooperation
in Receipt of Consents.
(a) The
parties shall cooperate with one another in (i) determining whether any other
action by or in respect of, or filing with, any Governmental Authority is
required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with the
consummation of the transactions contemplated hereby, and (ii) taking or seeking
any such other actions, consents, approvals or waivers or making any such
filings, furnishing information required in connection
therewith. Each party shall permit the other party to review any
communication given by it to, and shall consult with each other in advance of
any meeting or conference with, any Governmental Authority or, in connection
with any proceeding by a private party, with any other Person, and to the extent
permitted by the applicable Governmental Authority or other Person, give the
other party the opportunity to attend and participate in such meetings and
conferences, in each case in connection with the transactions contemplated
hereby.
(b) After
the Purchaser has advanced funds or made other arrangements therefor,
the Company shall timely file all reports required to be filed by it
pursuant to Section 13 of the 1934 Act and all other documents required to be
filed by it with the SEC under the 1933 Act or the 1934 Act from the date of
this Agreement to the Change of Control Date.
5.5 Public
Announcements. The
parties shall consult with each other before issuing, and provide each other a
reasonable opportunity to review and comment upon, any press release or public
statement with respect to this Agreement and the transactions contemplated
hereby and, except as may be required by applicable law, will not issue any such
press release or make any such public statement prior to such
consultation.
5.6 Notification of Certain
Matters. Each party hereto shall give notice to each other
party hereto, as promptly as practicable after the event giving rise to the
requirement of such notice, of:
(a) any
communication received by such party from, or given by such party to, any
Governmental Authority in connection with any of the transactions contemplated
hereby;
(b) any
notice or other communication from any Person alleging that the consent of such
Person is or may be required in connection with the transactions contemplated by
this Agreement; and
(c) any
actions, suits, claims, investigations or proceedings commenced or, to its
Knowledge, threatened against, relating to or involving or otherwise affecting
such party or any of its Affiliates that, if pending on the date of this
Agreement, would have been required to have been disclosed, or that relate to
the consummation of the transactions contemplated by this Agreement; provided, however, that the
delivery of any notice pursuant to this Section 5.6
shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
5.7 Interim Operations of the
Company. During
the period from the date of this Agreement to the Change of Control Date, the
Company shall and the Seller and the Purchaser shall cause the Company to
conduct its business only in the ordinary course of business consistent with
past practice, except to the extent otherwise necessary to comply with the
provisions hereof and with applicable laws and
regulations. Additionally, during the period from the date of this
Agreement to the Change of Control Date, except as required hereby in connection
with this Agreement, neither the Company nor the Seller shall permit the Company
to do any of the following without the prior consent of the Purchaser: (i) amend
or otherwise change its Certificate of Incorporation or Bylaws, (ii) issue, sell
or authorize for issuance or sale (including, but not limited to, by way of
stock split or dividend), shares of any class of its securities or enter into
any agreements or commitments of any character obligating it to issue such
securities, other than in connection with the exercise of warrants or stock
options outstanding prior to the date of this Agreement; (iii) declare, set
aside, make or pay any dividend or other distribution (whether in cash, stock or
property) with respect to the Common Stock, (iv) redeem, purchase or otherwise
acquire, directly or indirectly, any of its capital stock, (v) enter into any
material contract or agreement or material transaction or make any material
capital expenditure other than those relating to the transactions contemplated
by this Agreement, (vi) create, incur, assume, maintain or permit to exist any
indebtedness except as otherwise incurred in the ordinary course of business,
consistent with past practice, (vii) pay, discharge or satisfy claims or
liabilities (absolute, accrued, contingent or otherwise) other than in the
ordinary course of business consistent with past practice, (viii) cancel any
material debts or waive any material claims or rights, (ix) make any loans,
advances or capital contributions to, or investments in financial instruments of
any Person, (x) assume, guarantee, endorse or otherwise become responsible for
the liabilities or other commitments of any other Person, (xi) grant any
increase in the compensation payable or to become payable by the Company to any
of its employees, officers or directors or any increase in any bonus, insurance,
pension or other employee benefit plan, payment or arrangement made to, for or
with any such employees, officers or directors, (xii) enter into any employment
contract or grant any severance or termination pay or make any such payment with
or to any officer, director or employee of the Company, (xiii) alter in any
material way the manner of keeping the books, accounts or records of the Company
or the accounting practices therein reflected other than alterations or changes
required by GAAP or applicable law, (xiv) enter into any indemnification,
contribution or similar contract pursuant to which the Company may be required
to indemnify any other Person or make contributions to any other Person, (xv)
amend or terminate any existing contracts in any manner that would result in any
material liability to the Company for or on account of such amendment or
termination or (xvi) or change any existing or adopt any new tax accounting
principle, method of accounting or tax election except as provided herein or
agreed to in writing by each of the Purchaser.
5.8A Seller’s
Indemnification.
(a) Seller
hereby agrees to indemnify and hold harmless the Purchaser and its partners,
members, agents, representatives and assignees (the “Purchaser’s
Indemnified Parties”) from and against any and all claims, demands,
losses, damages, expenses or liabilities (including reasonable attorneys’ fees)
due to or arising out of a material breach of any representation, warranty,
covenant, agreement or obligation provided by the Seller hereunder or in any
other certificate, instrument or document contemplated hereby or thereby for a
period commencing on the date hereof and ending on the earlier of (a) the 18
month anniversary of the date hereof and (b) the tenth business day after the
date the Annual Report on Form 10-K of the Company for the fiscal year ending
December 31, 2011 is filed with the SEC (the “Indemnification
Term”). Notwithstanding the foregoing, the Seller hereby
agrees to indemnify and hold harmless the Purchaser’s
Indemnified Parties from and against any and all claims, demands, losses,
damages, expenses or liabilities (including reasonable attorneys’ fees) due to
or arising out of a material breach of any representation, warranty, covenant,
agreement or obligation provided by the Seller hereunder or in any other
certificate, instrument or document contemplated hereby or thereby that relates
to that certain Agreement and Plan of Reorganization, dated as of July 30, 2007,
by and among the Company, Ascend Company Limited, ePAK Holdings Limited and
x.Xxx Resources (S) Pte Ltd, as amended, or with respect to any other business
combination agreement to which the Company was a party prior to the date hereof
without regard for the time limitation referenced in the preceding
sentence. It is further agreed that Seller shall indemnify the
Purchaser’s Indemnified Parties for any obligation arising for any foreign,
federal, state, local, franchise, sales or other tax obligation of the Company
and any trade payable, contractual payment or other payment obligation incurred
or accrued, but unpaid, prior to the Closing, whether or not such obligation or
the circumstances relating thereto were made known to Purchaser.
(b) Notwithstanding
anything to the contrary, the aggregate amount of the indemnification under this
Section 5.8A shall not exceed $279,000. The Seller shall not have any
liability for the indemnification provided in this Section 5.8A to the extent
such liability is covered by insurance or is attributable to an act, omission,
event or occurrence of the type that was covered by insurance as of the date
hereof. Any liability under Section this Section 5.8A shall be
limited to actual net unreimbursed monetary damages incurred or suffered by the
Purchaser’s Indemnified Party on a net after-tax basis, including any deduction
or credit to which the Purchaser’s Indemnified Party is entitled because of any
indemnified item. In the event that the Seller shall be obligated to
indemnify the Purchaser’s Indemnified Party under this Section 5.8A, the Seller
shall, upon payment of such indemnity, be subrogated to all rights of the
Purchaser’s Indemnified Party with respect to claims to which such
indemnification relates. Each Purchaser’s Indemnified Party hereby
agrees that, with respect to any claim for which he, she or it would be entitled
to indemnification under this Section 5.8A, a claim and/or an action under and
pursuant to the terms, conditions and limitations of this Section 5.8A shall be
its sole and exclusive right and remedy, and that no Purchaser’s Indemnified
Party shall have any other claim, cause of action, right or remedy based upon
any other provision of this Agreement, any provision of any federal or state
statute, law, rule or regulation, or any other cause of action arising at law or
in equity; provided, however, that if for any reason a court shall refuse to
enforce this provision, and shall permit any Purchaser’s Indemnified Party to
assert any action based other than upon the right to claim indemnification as
provided in this Section 5.8A, each Purchaser’s Indemnified Party agrees that
such other claim shall be subject to and limited by the provisions of this
Section 5.8A(b).
(c) The
obligations and liabilities of the Seller to protect each Purchaser’s
Indemnified Party and hold harmless any Purchaser’s Indemnified Party with
respect to claims asserted by third parties shall be subject to the following
terms and conditions:
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(i)
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Promptly
after receipt by a Purchaser’s Indemnified Party of notice of the
commencement of any action evidenced by service of process or other legal
pleading, or the assertion in writing of any claim by a third party, the
Purchaser’s Indemnified Party shall give to the Seller written notice
thereof together with a copy of such claim, process, other legal pleading
and written assertion, and the Seller shall have the right to undertake
the defense thereof by representatives of their choosing (subject to the
right of the Purchaser’s Indemnified Party to reasonably consent thereto)
and at the Seller' expense; provided, however, that the Purchaser’s
Indemnified Party may participate in the defense with counsel of his, her
or its own choice and at his, her or its expense. Even if the
Purchaser’s Indemnified Party fails to give the preceding notice, the
Seller may undertake the defense in accordance with the foregoing as soon
as he learns of the third party claim even though they may learn of such
claims through some other means. The Purchaser’s Indemnified
Party (prior to the Seller' decision to defend or not defend the
Purchaser’s Indemnified Party against the claim or demand) shall file any
answer, motion or other pleading which is necessary or appropriate to
protect its interests or those of the Seller and which is not intended to
be prejudicial to the Seller, in the event that the Seller are not in a
position to do so.
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(ii)
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In
the event that the Seller, by the 30th day after receipt of notice (as set
forth above) of any such claim (or, if earlier, by the 5th day preceding
the day on which an answer or other pleading must be served in order to
prevent judgment by default in favor of the person asserting such claim),
does not elect to defend against such claim, the Purchaser’s Indemnified
Party shall have the right, but not the obligation, to undertake the
defense, compromise or settlement of such claim on behalf of and for the
account and risk and at the expense of the Seller, subject to the right of
the Seller to assume the defense of such claims at any time thereafter
prior to settlement, compromise or final determination
thereof.
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(iii)
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Anything
in this Section 5.8A to the contrary notwithstanding, the Seller shall not
settle any claim against a Purchaser’s Indemnified Party without the
consent of the Purchaser’s Indemnified Party unless such settlement
involves only the payment of money and does not involve any admission of
liability or stipulation of fact which the Purchaser’s Indemnified Party
believes in his, her or its reasonable discretion may have an adverse
effect on him, her or it, and the claimant provides to the Purchaser’s
Indemnified Party a release from all liability in respect of such
claim. If the settlement of the claim involves more than the
payment of money or involves an admission of liability or stipulation of
fact, the Seller shall not settle the claim without the prior consent of
the Purchaser’s Indemnified Party.
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(iv)
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The
Seller and the Purchaser’s Indemnified Party shall each cooperate with all
reasonable requests of the other, including, without limitation, in making
any counterclaim against the person asserting the third party claim or
demand, or any cross-complaint against any
person.
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5.8B Purchaser’s
Indemnification. Purchaser
hereby agrees to indemnify and hold harmless the Seller and his heir,
beneficiaries, representatives, successors and assignees from and against any
and all claims, demands, losses, damages, expenses or liabilities (including
reasonable attorneys’ fees) due to or arising out of a material breach of any
representation, warranty, covenant, agreement or obligation made or provided by
the Purchaser hereunder or in any other certificate, instrument or document
contemplated hereby or thereby for the Indemnification
Term. Notwithstanding anything to the contrary, the aggregate amount
of the indemnification under this Section 5.8B shall not exceed
$279,000. Any and all indemnification obligations of Purchaser to
indemnify Seller and the foregoing other person under this Section 5.8B shall
follow, and be subject to, identical conditions, procedures and obligations to
the benefit of the Purchaser as those afforded or applicable to the Seller under
Sections 5.8A(b) and (c) above
5.9 Reports on Form
8-K.
(a) Promptly
following execution of this Agreement and after the Purchaser has advanced funds
or made other arrangements therefor, the Company shall and the Seller and the
Purchaser shall cause the Company to timely file a Current Report on Form 8-K
with the SEC disclosing the purchase of the Shares and any other information
required in connection therewith.
(b) Promptly
following the Change of Control Date and after the Purchaser has advanced funds
or made other arrangements therefor, the Company shall and the Purchaser shall
cause the Company to timely file a Current Report on Form 8-K with the SEC
disclosing the change of control resulting from the composition of the Board of
Directors as prescribed by Section 5.2 of this Agreement and any other
information required in connection therewith.
5.10 Waiver of Claims and
Release. Seller, on his own behalf and behalf of each of his
Affiliates, hereby waives in all respects any and all claims or rights any such
person may have in any capacity, including by not limited to, as a director,
officer, employee, consultant, stockholder or agent, against the Company that
now exist or which arose or could arise from any circumstances now existing or
which existed at any time prior to the Closing and hereby grants a full and
complete release of the Company from same and all liabilities and obligations
relating thereto; provided however, that such waiver and release shall not apply
to any rights which such person may be entitled to under the specific terms of
this Agreement.
5.11 Other
Actions. In addition to the other agreements and obligations
hereunder, each of the parties agrees to take such other commercially reasonable
actions as are necessary and to otherwise cooperate to affect the intentions of
this Agreement.
5.12 Assignment of Registration
Rights. The Seller hereby unconditionally assigns to the
Purchaser all of the Seller’s rights and obligations under that certain
Registration Rights Agreement, dated as of May 11, 2006, among the Company and
each of the parties executing a signature page thereto with respect to the
Shares.
SECTION
VI MISCELLANEOUS.
6.1 Waivers and
Amendments. This
Agreement may be amended or modified in whole or in part only by a writing which
makes reference to this Agreement executed by the Company (including after a
change of control resulting from the implementation of Section 5.2), the Seller
and the Purchaser. The obligations of any party hereunder may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the party claimed to have given the waiver;
provided, however, that any waiver by any party of any violation of, breach of,
or default under any provision of this Agreement or any other agreement provided
for herein shall not be construed as, or constitute, a continuing waiver of such
provision, or waiver of any other violation of, breach of or default under any
other provision of this Agreement or any other agreement provided for
herein.
6.2 Entire
Agreement. This
Agreement (together with any Schedules and/or any Exhibits hereto) and the other
agreements and instruments expressly provided for herein, together set forth the
entire understanding of the parties hereto and supersede in their entirety all
prior contracts, agreements, arrangements, communications, discussions,
representations, and warranties, whether oral or written, among the parties with
respect to the subject matter hereof.
6.3 Governing Law and Submission
to Jurisdiction. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without regard to principles of conflict of laws that
would result in the application of the laws of another
jurisdiction. The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located within the
State of New York over any dispute arising out of or relating to this Agreement
or any of the transactions contemplated hereby and each party hereby irrevocably
agrees that all claims in respect of such dispute or any suit, action proceeding
related thereto may be heard and determined in such courts. The
parties hereby irrevocably waive, to the fullest extent permitted by applicable
Law, any objection which they may now or hereafter have to the laying of venue
of any such dispute brought in such court or any defense of inconvenient forum
for the maintenance of such dispute. Each of the parties hereto
agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Each of the parties hereto hereby consents to process being
served by any party to this Agreement in any suit, action or proceeding by the
delivery of a copy thereof in accordance with the provisions of Section
6.5.
6.4 Expenses. Whether
or not the transactions contemplated by this Agreement are consummated, all fees
and expenses of any party hereto incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
fees and expenses.
6.4 Notices. Any
notice, request or other communication required or permitted hereunder shall be
in writing and be deemed to have been duly given (a) when personally delivered
or sent by facsimile transmission (the receipt of which is confirmed in
writing), (b) one Business Day after being sent by a nationally recognized
overnight courier service or (c) five Business Days after being sent by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at their respective addresses set forth below.
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If
to the Seller:
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Xx.
Xxxxxx X. Xxxx
000
Xxxxx Xxxx Xxxxx
Xxxxxxxx
000
Xxxxx,
Xxxxxxxxxxxx 00000
Facsimile:
000-000-0000
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with
a courtesy copy (not constituting notice) to:
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Xxxxxx,
Xxxxx & Xxxxxxxx, PLLC
0
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile:
000-000-0000
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if
to the Purchaser:
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Ironbound
Partners Fund, LLC
000
Xxxx Xxxxxxxx
XXX
000
Xxxxxxx,
XX 00000
Attention: Xx.
Xxxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
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with
a courtesy copy (not constituting notice hereunder) to:
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Xxxxxxxx
Xxxxxx
000
Xxxxxxxxx Xxxxxx
The
Chrysler Building
Attention:
Xxxxx Xxxx Xxxxxx and Xxxxx X. Xxxx, Esqs.
Facsimile:
000-000-0000
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Any party
by written notice to the other may change the address or the persons to which
notices or copies thereof shall be directed.
6.6 Counterparts; Facsimile
Signatures. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, and all of which together will constitute one and the
same instrument. Any facsimile or other electronic copy of this
Agreement will be deemed an original for all purposes.
6.7 Successors and
Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and his respective successors and permitted assigns, except that the
Seller may not assign or transfer their rights hereunder without the prior
written consent of the Purchaser. The Purchaser may assign or
transfer its rights under this Agreement without the consent of the
Seller.
6.8 Third
Parties. Nothing
expressed or implied in this Agreement is intended, or shall be construed, to
confer upon or give any Person other than the parties hereto and their
successors and assigns any rights or remedies under or by reason of this
Agreement.
6.9 Schedules. The
Schedules and Exhibits attached to this Agreement are incorporated herein and
shall be part of this Agreement for all purposes.
6.10 Headings. The
headings in this Agreement are solely for convenience of reference and shall not
be given any effect in the construction or interpretation of this
Agreement.
6.11 Interpretation. Whenever
the context may require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns, pronouns
and verbs shall include the plural and vice versa.
[Signature
Page Follows]
SIGNATURE
PAGE TO
BY
AND AMONG
THE
SELLER, THE COMPANY AND THE PURCHASER
IN
WITNESS WHEREOF, each of the Seller, the Company and the Purchaser have executed
this Agreement as of the date first above written.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Executive Officer
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THE
SELLER:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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THE
PURCHASER:
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IRONBOUND
PARTNERS FUND, LLC
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By:
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/s/ Xxxxxxxx X. Xxxxxxx
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Name:
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Xxxxxxxx
X. Xxxxxxx
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Title:
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Managing
Member
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Exhibit
3
JOINT
FILING AGREEMENT
AGREEMENT
dated as of January 21, 2011, between Xxxxxxxx X. Xxxxxxx and Ironbound Partners
Fund, LLC (together, the “Parties”).
Each
Party hereto represents to the other Party that it is eligible to use Schedule
13D to report its beneficial ownership in shares of Common Stock, $0.0001 par
value per share, of Ascend Acquisition Corp. Each Party hereto agrees that the
Schedule 13D, dated January 21, 2011, relating to such beneficial ownership, is
filed on behalf of each of them.
Each of
the Parties agrees to be responsible for the timely filing of the Schedule 13D
and any and all amendments thereto and for the completeness and accuracy of the
information concerning itself contained in the Schedule 13D, and the other Party
to the extent it knows or has reason to believe that any information about the
other Party is inaccurate.
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/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx
X. Xxxxxxx
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IRONBOUND
PARTNERS FUND, LLC
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By:
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/s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx
X. Xxxxxxx, Manager
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