SECURITIES PURCHASE AGREEMENT
0000
Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxx,
XX 00000
Ladies
& Gentlemen:
The
undersigned, _______________________________________ (the “Investor”), hereby confirms
his agreement with you as follows:
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I.
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This
Securities Purchase Agreement (this “Agreement”) is made as
of March ___, 2008 between nFinanSe Inc., a Nevada corporation (the “Company”), and the
Investor.
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II.
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The
Company has authorized the sale and issuance of up to (i) 1,200,000 shares
(the “Common
Shares”) of Common Stock of the Company, $0.001 par value per share
(the “Common
Stock”), and (ii) warrants (the form of which is attached hereto as
Exhibit
A) (the “Warrants”) to purchase
up to 600,000 shares of Common Stock at an exercise price of $3.25 per
share (the “Warrant
Shares”), subject to adjustment by the Company, to certain
accredited investors in a private placement (the “Offering”). The
Common Shares, the Warrants and the Warrant Shares are referred to
collectively herein as the “Securities”).
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III.
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The
Company and the Investor agree that the Investor will purchase from the
Company, and the Company will issue and sell to the Investor,
__________________ Common Shares for a purchase price of $2.50 per share
or an aggregate purchase price of $_________________, and Warrants to
purchase _______________ Warrant Shares, exercisable at $3.25 per Warrant
Share, pursuant to the Terms and Conditions for Purchase of the Securities
attached hereto as Annex I
and incorporated herein by reference as if fully set forth herein (the
“Terms and
Conditions”). Unless otherwise requested by the
Investor, stock certificates representing the Common Shares and the
Warrants purchased by the Investor will be registered in the Investor’s
name and address as set forth
below.
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IV.
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The
Investor represents that, except as set forth below, (a) he has had no
position, office or other material relationship within the past three
years with the Company or persons known to him to be affiliates of the
Company, (b) neither he, nor any group of which he is a member or to which
he is related, beneficially owns (including the right to acquire or vote)
any securities of the Company and (c) he has no direct or indirect
affiliation or association with any National Association of Securities
Dealers, Inc. member as of the date
hereof. Exceptions:
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_______________________________________________________________________________________
_______________________________________________________________________________________.
(If no
exceptions, write “none.” If left blank, response will be deemed to
be “none.”)
1-PH/2873353.7
The Investor hereby confirms, by
signing in the space provided below, that the foregoing correctly sets forth the
agreement between the Investor and the Company with respect to the purchase of
Common Shares and the Warrants in the Offering.
AGREED AND
ACCEPTED:
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NFINANSE,
INC.
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Investor:
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By:
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By:
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Title:
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Print
Name:
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Title:
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Address:
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Tax
ID No.:
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Contact
Name:
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Telephone:
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Fax:
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Email*:
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Name
in which shares should be registered (if different):
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*By
providing an e-mail address, the Investor hereby consents to electronic delivery
of the documents and notices required to be delivered pursuant to this
Agreement.
1-PH/2873353.7
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ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF THE SECURITIES
1. Authorization and Sale of
the Securities. Subject to these Terms and Conditions, the
Company has authorized the sale of up to 1,200,000 Common Shares and 600,000
Warrants. The Company reserves the right to increase or decrease this
number.
2. Agreement to Sell and
Purchase the Securities.
2.1 At
the Closing (as defined in Section 3), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions
hereinafter set forth, the number of Securities set forth in Paragraph III of
this Agreement to which these Terms and Conditions are attached at the purchase
price set forth thereon.
2.2 The
Company may enter into the same form of Securities Purchase Agreement, including
these Terms and Conditions, with certain other investors (the “Other Investors”) and expects
to complete sales of the Securities to them. (The Investor and the
Other Investors are hereinafter sometimes collectively referred to as the “Investors,” and the Securities
Purchase Agreement to which these Terms and Conditions are attached and the
Securities Purchase Agreements (including attached Terms and Conditions)
executed by the Other Investors are hereinafter sometimes collectively referred
to as the “Agreements.”) The
Company may accept executed Agreements from Investors for the purchase of the
Securities commencing upon the date on which the Company provides the Investors
with the proposed purchase price and concluding upon the date (the “Subscription Date”) on which
the Company has (i) executed Agreements with Investors for the purchase of
Securities in the aggregate amount of at least $3,000,000, and (ii) notified
Emerging Growth Equities, Ltd., in its capacity as placement agent for the
Offering (the “Placement
Agent”), in writing that it is no longer accepting additional Agreements
from Investors for the purchase of the Securities. The Company may
not enter into any Agreements after the Subscription Date.
3. Delivery of the Securities
at Closing. The completion of the purchase and sale of the
Securities in the Offering shall occur from time to time (each, a “Closing”) upon satisfaction of
the Minimum Closing Terms (as defined below) (the date of each such
satisfaction, a “Closing
Date”), at the offices of the Company’s counsel, or at such other place
as may be agreed upon by the Company and the Placement Agent. At the
Closing, the Company shall deliver to the Investor, or a representative of the
Investor, one or more stock certificates representing the number of Common
Shares and warrant documents representing the number of Warrants set forth in
Paragraph III of this Agreement, each such stock certificate and document to be
registered in the name of the Investor or, if so indicated on the signature page
of the Securities Purchase Agreement, in the name of a nominee designated by the
Investor.
The
Company’s obligation to issue the Securities to the Investor shall be subject to
the following conditions, any one or more of which may be waived by the Company:
(a) prior receipt by the Company of a certified or official bank check or wire
transfer of funds in the full amount of the purchase price for the Securities
being purchased hereunder as set forth in Paragraph III of the Securities
Purchase Agreement; (b) completion of the purchases and sales under the
Agreements with the Other Investors; and (c) the accuracy of the representations
and warranties made by the Investors and the fulfillment of those undertakings
of the Investors to be fulfilled prior to the Closing.
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The
Investor’s obligation to purchase the Securities shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) Investors shall have executed Agreements for the purchase of at least an
aggregate of $500,000 Common Shares and Warrants, and (b) the representations
and warranties of the Company set forth herein shall be true and correct as of
the Closing Date in all material respects (“Minimum Closing
Terms”).
4. Representations, Warranties
and Covenants of the Company. The Company hereby represents
and warrants to, and covenants with, the Investor, as follows:
4.1 Organization. The
Company is duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization. The Company has full power
and authority to own, operate and occupy its properties and to conduct its
business as presently conducted and as described in the documents filed by the
Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end
of its most recently completed fiscal year through the date hereof, including,
without limitation, its report on Form 10-KSB for the year ended September 30,
2006 and its report on Form 10-QSB for the quarter ended September 29, 2007 (the
“Exchange Act
Documents”) and is registered or qualified to do business and in good
standing in each jurisdiction in which the nature of the business conducted by
it or the location of the properties owned or leased by it requires such
qualification and where the failure to be so qualified would have a material
adverse effect upon the financial condition, earnings, business or business
prospects, properties or operations of the Company (a “Material Adverse Effect”), and
no proceeding has been instituted in any such jurisdiction, revoking, limiting
or curtailing, or seeking to revoke, limit or curtail, such power and authority
or qualification.
4.2 Due Authorization and Valid
Issuance. The Company has all requisite power and authority to
execute, deliver and perform its obligations under the Agreements, and the
Agreements have been duly authorized and validly executed and delivered by the
Company and constitute legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their terms, except as rights
to indemnity and contribution may be limited by state or federal securities laws
or the public policy underlying such laws, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ and contracting parties’ rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). The Securities being purchased by the Investor
hereunder will, upon issuance and payment therefor pursuant to the terms hereof,
be duly authorized, validly issued, fully-paid and nonassessable. The
Company has reserved from its duly authorized capital stock: (i) the number of
Common Shares issuable pursuant to this Agreement, and (ii) the number of
Warrant Shares issuable upon the exercise of the Warrants.
4.3 Non-Contravention. The
execution and delivery of the Agreements, the issuance and sale of the
Securities under the Agreements, the fulfillment of the terms of the Agreements
and the consummation of the transactions contemplated thereby will not (A)
conflict with or constitute a violation of, or default (with the passage of time
or otherwise) under, (i) any material bond, debenture, note or other evidence of
indebtedness, lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the Company
is a party or by which it or any of its properties are bound, (ii) the
charter, by-laws or other organizational documents of the Company, or (iii) any
law, administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to the Company or their
respective properties, except in the case of clauses (i) and (iii) for any such
conflicts, violations or defaults which are not reasonably likely to have a
Material Adverse Effect or (B) result in the creation or imposition of any lien,
encumbrance, claim, security interest or restriction whatsoever upon any of the
material properties or assets of the Company or an acceleration of indebtedness
pursuant to any obligation, agreement or condition contained in any material
bond, debenture, note or any other evidence of indebtedness or any material
indenture, mortgage, deed of trust or any other agreement or instrument to which
the Company is a party or by which any of them is bound or to which any of the
material property or assets of the Company is subject except in cases not
reasonably likely to have a Material Adverse Effect. No consent,
approval, authorization or other order of, or registration, qualification or
filing with, any regulatory body, administrative agency, or other governmental
body in the United States or any other person is required for the execution and
delivery of the Agreements and the valid issuance and sale of the Securities to
be sold pursuant to the Agreements, other than such as have been made or
obtained, and except for any post-closing securities filings or notifications
required to be made under federal or state securities laws.
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4.4 Capitalization. The
entire authorized capital stock of the Company consists of
(A) 200,000,000 shares of common stock, par value $0.001 per share
(the “Common Stock”),
7,796,629 of which were issued and outstanding as of March 25, 2008, and (B)
25,000,000 shares of preferred stock of which, (i) 9,327,934 shares were
designated as Series A Convertible Preferred Stock, par value $0.001 (“Series A Stock”), of which
7,600,484 shares were issued and outstanding as of March 25, 2008 and (ii)
1,000,010 shares were designated as Series B Convertible Preferred Stock, par
value $0.001 (“Series B
Stock”), of which 1,000,000 shares were issued and outstanding as of
March 25, 2008. All shares of the Company’s issued and outstanding
capital stock have been duly authorized, are validly issued and outstanding, and
are fully paid and nonassessable. No person has any right of first
refusal, preemptive right, right of participation or any similar right to
participate in the transactions contemplated by this
Agreement. Except as a result of the purchase and sale of the Common
Shares and Warrants pursuant to the Offering, the rights and preferences granted
to holders of the Series A Stock and the Series B Stock, and the employee and
director stock options granted under the Company’s equity compensation plans and
outstanding warrants as disclosed in the Exchange Act Documents, there are no
outstanding options, warrants, 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 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 issuance and sale of
the Securities will not 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.
4.5 Financial Statements;
Accountants. The consolidated financial statements of the
Company and the related notes contained in the Exchange Act Documents present
fairly in all material respects, in accordance with generally accepted
accounting principles, the financial position of the Company as of the dates
indicated, and the results of its operations and cash flows for the periods
therein specified and are consistent with the books and records of the Company
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which are not expected to be material
in amount. Such financial statements (including the related notes)
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods therein specified, except
as may be included in the notes to such financial statements, or in the case of
unaudited statements, as may be permitted by the Securities and Exchange
Commission (“SEC”) on
Form 10-QSB under the Exchange Act and except as disclosed in the Exchange Act
Documents. The other financial information contained in the Exchange
Act Documents has been prepared on a basis consistent with the financial
statements of the Company.
4.6 Placement Agent; Board of
Directors. The Placement Agent served as placement agent for
the Company’s offering of Series A Preferred Stock and, for its services as
placement agent, received a $117,000 fee and a warrant to purchase 320,000
shares of Common Stock, exercisable at $1.10 per share and expiring on December
27, 2011. The Placement Agent served as placement agent for the
Company’s offering of Series B Preferred Stock and, for its services as
placement agent, received a $634,872 fee and a warrant to purchase 120,928
shares of Common Stock, exercisable at $3.30 per share and expiring on June 29,
2012. In connection with the Offering, the Placement Agent will
receive (i) a 4% fee for purchases by Investors who are holders of the Company’s
equity securities as of the Closing Date (collectively, “Security Holders”), (ii) a 6%
fee for purchases by Investors who are not Security Holders, and (iii) a warrant
to purchase 2% of the aggregate shares of Common Shares sold in the
Offering.
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4.7 Company not an “Investment
Company”. The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and immediately after receipt of
payment for the Securities will not be, an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment
Company Act and shall conduct its business in a manner so that it will not
become subject to the Investment Company Act.
4.8 Transfer
Taxes. On the Closing Date, all stock transfer or other taxes
(other than income taxes) which are required to be paid in connection with the
sale and transfer of the Securities to be sold to the Investors hereunder will
be, or will have been, fully paid or provided for by the Company and all laws
imposing such taxes will be or will have been fully complied with.
4.9 Private
Offering. Assuming (i) the correctness of the representations
and warranties of the Investors set forth in Section 5 hereof, (ii) the
correctness of the information provided in the Investor Questionnaire submitted
by each of the Investors and (iii) that Placement Agent’s activities are
consistent with the activities permissible under Rule 506 of Regulation D of the
Securities Act of 1933, as amended (the “Securities Act”), the offer
and sale of the Securities hereunder is exempt from registration under the
Securities Act.
5. Representations, Warranties
and Covenants of the Investor.
5.1 The
Investor represents and warrants to, and covenants with, the Company that: (i)
the Investor is an “accredited investor” as defined in Regulation D under the
Securities Act and the Investor is also knowledgeable, sophisticated and
experienced in making, and is qualified to make, decisions with respect to
investments in shares presenting an investment decision like that involved in
the purchase of the Securities, including investments in securities issued by
the Company and investments in comparable companies, and has requested,
received, reviewed and considered all information it deemed relevant in making
an informed decision to purchase the Securities; (ii) the Investor is acquiring
the number of Common Shares and Warrants set forth in Paragraph III of the
Securities Purchase Agreement in the ordinary course of his business and for his
own account for investment only and with no present intention of distributing
any of the Securities or any arrangement or understanding with any other persons
regarding the distribution of such Securities; (iii) the Investor will not,
directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) any of the Securities except in compliance with the Securities Act,
applicable state securities laws and the respective rules and regulations
promulgated thereunder; (iv) the Investor has answered all questions on the
Investor Questionnaire and the answers thereto are true, correct and complete as
of the date hereof and will be true, correct and complete as of the Closing
Date; and (v) the Investor has, in connection with his decision to purchase the
number of Common Shares and Warrants set forth in Paragraph III of the
Securities Purchase Agreement, relied only upon the Exchange Act Documents and
the representations and warranties of the Company contained
herein. The Investor understands that neither this Offering nor the
acquisition of the Securities have been registered under the Securities Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of the Investor’s investment intent as expressed herein and the
information provided in the Investor’s Investor
Questionnaire. Investor has completed or caused to be completed and
delivered to the Company the Investor Questionnaire, which questionnaire is
true, correct and complete in all material respects.
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5.2 The
execution, delivery and performance by the Investor of the transactions
contemplated by this Agreement have been duly authorized by all necessary action
on the part of the Investor. This Agreement has been duly executed by the
Investor, and when delivered by the Investor in accordance with the terms
hereof, will constitute the valid and legally binding obligation of the
Investor, enforceable against him in accordance with its terms, except (i) as
limited by laws of general application relating to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally, (ii) as limited by rules of law governing specific performance,
injunctive relief, or other equitable remedies and (iii) to the extent the
indemnification provisions contained in this Agreement may be limited by
applicable federal or state securities laws.
5.3 The
Investor 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.
5.4 The
Investor is acquiring the Common Shares and Warrants, and the Warrant shares
receivable upon exercise thereof, in each case, for his own account and not with
a view towards, or for resale in connection with, the public sale or
distribution thereof; provided, however, that by making the representations
herein, the Investor does not agree to hold any of the Securities for any
minimum or other specific term and reserves the right to dispose of the
Securities under an exemption under the Securities Act and reserves the right to
dispose of the Common Shares and Warrant Shares at any time in accordance with
or pursuant to a registration statement or an exemption under the Securities
Act. The Investor is acquiring the Securities hereunder in the
ordinary course of business.
5.5 The
Investor understands that the Securities are being offered and sold to him in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Investor’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Investor set forth herein in order to determine the availability of such
exemptions and the eligibility of the Investor to acquire the
Securities.
5.6 The
Investor and his advisors, if any, have been furnished with all publicly
available materials relating to the business, finances and operations of the
Company and such other publicly available materials relating to the offer and
sale of the Securities as have been requested by the Investor. The
Investor and his advisors, if any, have been afforded the opportunity to ask
questions of the Company. Neither such inquiries nor any other due
diligence investigations conducted by the Investor or his advisors, if any, or
his representatives shall modify, amend or affect the Investor’s right to rely
on the Company’s representations and warranties contained herein. The
Investor understands that his investment in the Securities involves a high
degree of risk.
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5.7 The
Investor understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities, nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
6. Survival of Representations,
Warranties and Agreement. All covenants, agreements,
representations and warranties made by the Company and the Investor herein shall
survive the execution of this Agreement, the delivery to the Investor of the
Securities being purchased and the payment therefor.
7. Transfer
Restrictions.
7.1 The
Securities may only be disposed of in compliance with state and federal
securities laws. Each Investor will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take pledge of) any of the Securities
except in compliance with the Securities Act, applicable state securities laws
and the respective rules and regulations promulgated thereunder. In
connection with any transfer of Securities other than pursuant to an effective
registration statement, to the Company, to an affiliate of an Investor (who is
an accredited investor and executes a customary representation letter), 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, provided, however, that in the
case of a transfer pursuant to Rule 144, no opinion shall be required if the
transferor provides the Company with a customary seller’s representation letter
reasonably satisfactory to the Company, and if such sale is not pursuant to
subsection (k) of Rule 144, a customary broker’s representation letter and a
Form 144. Any such transferee that agrees in writing to be bound by
the terms of this Agreement shall have the rights of an Investor under this
Agreement. The Company shall reissue certificates evidencing
the Securities upon surrender of certificates evidencing the Securities being
transferred in accordance with this Section 7.1.
7.2 The
Investors agree to the imprinting, so long as is required by this Section 7, of
a legend on any of the Securities in substantially the following
form:
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), AND ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET
FORTH IN THIS CERTIFICATE. THE SECURITIES REPRESENTED HEREBY MAY NOT
BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, ACCEPTABLE TO
COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR
DISPOSITION MAY BE AFFECTED WITHOUT REGISTRATION UNDER THE ACT.
The Company acknowledges and agrees
that the Investor 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, in accordance with all applicable securities laws, to
a financial institution that is an “accredited investor” as defined in Rule
501(a) under the Securities Act and, if required under the terms of such
arrangement, such Investor may transfer pledged or secured Securities to the
pledgees or secured parties; provided that such Investor shall provide the
Company with such documentation as is reasonably requested by the Company to
ensure that the pledge is pursuant to a bona fide margin agreement with a
registered broker-dealer or 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.
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7.3 Stock
certificates evidencing the Securities shall not contain any legend (including
the legend set forth in Section 7.2), (i) following any sale of such Securities
pursuant to Rule 144, or (ii) if such Securities are eligible for sale under
Rule 144(k), or (iii) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the SEC). The Company shall use its
commercially reasonable efforts to cause its counsel to issue a legal opinion to
the Company’s transfer agent promptly upon the occurrence of any of the events
in clauses (i), (ii) or (iii) above to effect the removal of the legend
hereunder. The Company agrees that at such time as such legend is no
longer required under this Section 7.3, it will, as promptly as practicable
following the delivery by the Investor to the Company or the Company’s transfer
agent of a stock certificate representing the Securities issued with a
restrictive legend, deliver or cause to be delivered to such Investor a stock
certificate representing such Securities that is free from all restrictive and
other legends.
8. Right to
Exchange. In the event that the Company contemplates the
issuance of any securities in connection with a capital raising transaction (the
“Issuance”), and upon
notice by the Company of the Issuance, each Investor shall have the right, upon
written notice to the Company at least five (5) days in advance of the Issuance,
to exchange all of its Common Shares and Warrants purchased hereunder for the
shares of securities issued in the Issuance (the “Exchange Securities”) upon the
same terms and conditions (other than the consideration paid for the Exchange
Securities) offered to the purchasers in the Issuance (the “Exchange”). The
Exchange shall be contingent upon the consummation of the
Issuance. The number of Exchange Securities that the Investor shall
be entitled to receive upon the Exchange shall be equal to the product obtained
by multiplying (i) the number of the Investor’s Common Shares by (ii) a quotient
obtained by dividing (X) $2.50 by (Y) the price per share of the Exchange
Securities paid by the purchasers thereof in the Issuance. As a
condition to the Exchange, the Investor shall execute such documents and
agreements as are reasonably requested by the
Company. Notwithstanding the foregoing, if no Issuance occurs within
six (6) months
following the date hereof, the exchange rights granted to the Investor in this
Section 8 shall automatically terminate.
9. Notices. All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within the United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, by facsimile or e-mail (if agreed to by the Investor),
or (B) if delivered from outside the United States, by international
express courier, facsimile or e-mail (if agreed to by the Investor), and shall
be deemed given (i) if delivered by first-class registered or certified
mail, three business days after so mailed, (ii) if delivered by nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
(iv) if delivered by facsimile or e-mail, upon electronic confirmation of
receipt and shall be delivered as addressed as follows:
9.1 if
to the Company, to:
0000 Xxxxxxx Xxxx Xxxxx, Xxxxx
000
Xxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
9.2 with
a copy to:
Xxxxxx,
Xxxxx & Bockius LLP
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
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9.3
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if
to the Investor, at his mail or e-mail address on the signature page
hereto, or at such other address or addresses as may have been furnished
to the Company in writing.
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10. Changes. This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
11. Headings. The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be part of this
Agreement and do not affect its interpretation.
12. Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
13. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Florida, without giving
effect to the principles of conflicts of law.
14. Counterparts. This
Agreement may be executed in two or more counterparts, including facsimile
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
15. Rule
144. The Company covenants that it will use commercially
reasonable efforts to timely file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any Investor holding Securities purchased hereunder
made after the first anniversary of the Closing Date, make publicly available
such information as necessary to permit sales pursuant to Rule 144 under the
Securities Act), and it will use commercially reasonable efforts to take such
further action as any such Investor may reasonably request, all to the extent
required from time to time to enable such Investor to sell Common Shares and/or
Warrant Shares purchased hereunder without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC.
16. Confidential
Information. The Investor represents to the Company that, at
all times during the Company’s offering of the Securities, the Investor has
maintained in confidence all non-public information regarding the Company
received by the Investor from the Company or its agents, including information
about the Offering of the Securities and covenants that he will continue to
maintain in confidence such information until such information (a) becomes
generally publicly available other than through a violation of this provision by
the Investor or his agents or (b) is required to be disclosed in legal
proceedings (such as by deposition, interrogatory, request for documents,
subpoena, civil investigation demand, filing with any governmental authority or
similar process), provided, however, that before making any use or disclosure in
reliance on this subparagraph (b) the Investor shall give the Company at least
fifteen (15) days prior written notice (or such shorter period as required by
law) specifying the circumstances giving rise thereto and will furnish only that
portion of the non-public information which is legally required and will
exercise its commercially reasonable efforts to obtain reliable assurance that
confidential treatment will be accorded any non-public information so
furnished.
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