WARRANT AND OPTION PURCHASE AGREEMENT
EXHIBIT
10.1
This
WARRANT AND OPTION PURCHASE AGREEMENT, dated as of March 24, 2009 (this “Agreement”), is by
and between XxxxxXxx Technologies, Inc., a Delaware corporation (the “Purchaser”), and
PSource Structured Debt Ltd., a corporation governed under the laws of Guernsey
(the “Seller”).
WHEREAS,
through various assignments from each of (a) Laurus Master Fund, Ltd., a company
governed under the laws of the Cayman Islands (“Laurus”), (b) Valens
Offshore SPV I, Ltd., a company governed under the laws of the Cayman Islands
(“Valens
Offshore”) and (c) Valens U.S. SPV I, LLC, a Delaware limited liability
company (“Valens
US”), the Seller owns an option to purchase an aggregate of 3,356,750
shares of common stock, par value $0.01 per share (“Common Stock”), of
the Purchaser and a warrant to purchase an aggregate of 1,455,155 shares of
Common Stock of the Purchaser (such option and warrant, together, the “Equity Interests”);
and
WHEREAS,
upon the terms and conditions stated in this Agreement, the Seller wishes to
sell, and the Purchaser wishes to purchase all of the Equity
Interests.
NOW,
THEREFORE, in consideration of the foregoing and the covenants, agreements and
warranties contained herein, the sufficiency of which as consideration is hereby
acknowledged, the parties agree as follows:
1. Definitions. When used herein,
the following terms shall have the indicated meanings:
“Encumbrance” means
any pledge, hypothecation, assignment, lien, restriction, charge, claim,
security interest, option, preference, priority or other preferential
arrangement of any kind or nature whatsoever.
“Laurus Entities”
means each of Laurus, Valens Offshore and Valens US.
2. Sale and
Purchase.
(a) Effective
upon the execution of this Agreement, the Seller hereby sells, transfers,
conveys and assigns to the Purchaser, and the Purchaser hereby purchases and
acquires from the Seller (the “Transaction”), the
Equity Interests and any and all rights and benefits incident to the ownership
thereof, on the terms and conditions set forth herein.
(b) The
aggregate purchase price for the Equity Interests to be purchased by the
Purchaser shall be equal to $700,000 (the “Purchase
Price”). Upon the execution of this Agreement by the Seller,
the Purchaser shall deliver the
Purchase Price by wire transfer of immediately available funds to the Seller in
accordance with the instructions set forth on Exhibit A attached
hereto. Within a commercially reasonable time after receipt of the Purchase
Price, the Seller shall cause the original instruments representing the Equity
Interests, endorsed for cancellation, to be delivered to the
Purchaser.
3. Representations, Warranties
and Agreements of the Seller.
The
Seller hereby represents, warrants and agrees that:
(a) The
Seller has full power and authority to enter into this Agreement and to
consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors’ rights generally, and by legal and equitable
limitations on the availability of specific remedies.
(b) The
execution, delivery and performance by the Seller of this Agreement and
consummation by the Seller of the Transaction does not and will not: (i) violate
the organizational documents of the Seller; (ii) violate any decree or judgment
of any court or other governmental authority applicable to or binding on the
Seller or any of its assets or properties; (iii) violate any provision of any
federal or state statute, rule or regulation which is applicable to the Seller;
or (iv) violate any contract to which the Seller or any of its assets or
properties are bound. No consent or approval of, or filing with, any
governmental authority or other person not a party hereto is required for the
execution, delivery and performance by the Seller of this Agreement or the
consummation of the Transaction.
(c) With
respect to the Transaction: (i) except for the record ownership of the Equity
Interests by the Laurus Entities on the books and records of the Purchaser, the
Seller is the sole record and beneficial owner of the Equity Interests, free and
clear of any taxes and Encumbrances; and (ii) upon the transfer of the Equity
Interests to the Purchaser, the Purchaser will acquire good and marketable title
thereto, and will be the legal and beneficial owner of such Equity Interests,
free and clear of any and all Encumbrances.
(d) The
Seller has taken no action that would give rise to any claim by any person for
brokerage commissions, finder’s fees or similar payments relating to this
Agreement or the Transaction.
(e) No
proceedings relating to the Equity Interests are pending or, to the knowledge of
the Seller, threatened before any court, arbitrator or administrative or
governmental body that would adversely affect the Seller’s right to transfer the
Equity Interests to the Purchaser.
4. Representations, Warranties
and Agreements of the Purchaser.
The
Purchaser hereby represents, warrants and agrees that:
(a) The
Purchaser has full power and authority to enter into this Agreement and to
consummate the Transaction. This Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes the legal, valid and
binding obligation of the Purchaser, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect that affect the
enforcement of creditors’ rights generally and by equitable limitations on the
availability of specific remedies.
(b) The
execution, delivery and performance by the Purchaser of this Agreement and
consummation by the Purchaser of the Transaction does not and will not: (i)
violate the organizational documents of the Purchaser; (ii) violate any decree
or judgment of any court or other governmental authority applicable to or
binding on the Purchaser or any of its assets or properties; (iii) violate any
provision of any federal or state statute, rule or regulation which is
applicable to the Purchaser; or (iv) violate any contract to which the Purchaser
is a party or by which the Purchaser or any of its respective assets or
properties are bound. No consent or approval of, or filing with, any
governmental authority or other person not a party hereto is required for the
execution, delivery and performance by the Purchaser of this Agreement or the
consummation of the Transaction.
(c) As
the issuer of the Equity Interests, the Purchaser does not possess any material
non-public information that has not been disclosed to the Seller, which the
Purchaser believes to be indicative that the value of the Equity Interests is
substantially greater than the Purchase Price.
(d) Upon
the transfer of the Equity Interests to the Purchaser, the Purchaser shall
immediately cancel the Equity Interests.
5. Notices. Any notice,
request, instruction or other document to be given hereunder by a party hereto
shall be in writing and shall be deemed to have been given: (a) when received if
given in person or by a courier or a courier service; or (b) on the date of
transmission if sent by facsimile transmission or e-mail:
(i) If
to the Seller, addressed as follows:
PSource Structured Debt
Ltd.
Xxxxxx
Xxxxx
Xx
Xxxxxxx
Xx
Xxxxx Xxxx
Xxxxxxxx
XX0
0XX
Facsimile:
x00 (0) 000 000 0000
Attention: Xxxx
Xxxxxxxxx
(ii) If
to the Purchaser, addressed as follows:
XxxxxXxx
Technologies, Inc.
0
Xxxxxxx Xxxx
Xxxxxxxx
X
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
Attention: Xxxxxxx
X. Xxxxx, Chief Financial Officer
or
to such other person or address as a party hereto may designate for itself by
notice given as herein provided.
6. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7. Applicable
Law. The laws of the
State of New York, without giving effect to its choice-of-law rules, shall
govern the validity of this Agreement.
8. Entire
Agreement; Amendments; and Waivers. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
between such parties with respect to such subject matter. No
provision of this Agreement may be amended other than by an instrument in
writing signed by the Seller and the Purchaser. No provision hereof
may be waived other than by an instrument in writing signed by the party against
whom enforcement is sought.
9. Severability. If any provision
of this Agreement shall be held invalid, illegal or unenforceable, the validity,
legality and enforceability of the other provisions hereof shall not be affected
thereby.
10. Captions. The Section
captions herein are for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this
Agreement.
11. No Third
Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
12. Survival;
Further Assurances. The
representations, warranties and covenants of the parties shall survive the
execution of this Agreement and the consummation of the Transaction. Each party
shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the Transaction.
[Remainder
of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Seller
and the Purchaser have caused this Warrant and Option Purchase Agreement to be
duly executed as of the date first written above.
THE
SELLER:
PSource
Structured Debt Ltd.
By: PSource
Capital Limited, its
investment
consultant
By:
__________________
Name:
Title:
THE
PURCHASER:
XxxxxXxx
Technologies, Inc.
By:
_________________________
Name:
Title
