VECTOR INTERSECT SECURITY ACQUISITION CORP. INVESTOR SUBSCRIPTION AGREEMENT
EXHIBIT
10.1
This
Investor Subscription Agreement (this “Agreement”) has been executed by the
undersigned subscriber (the “Investor”). Upon its acceptance by Vector Security
Intersect Acquisition Corp., a Delaware corporation (the “Company”), it will be
an agreement, dated the date of such acceptance, by and between the Investor
and
the Company.
WHEREAS,
the Investor desires to purchase the number of shares of Common Stock (THE
“Shares”) and the number of warrants to purchase the Common Stock (in the form
attached hereto as Exhibit
A,
the
“Warrants”)) set forth on the Company’s acceptance signature page hereto (the
“Securities”).
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, the Investor and the Company agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 Definitions.
(a) As
used in this Agreement, the following terms shall each have the respective
meanings set forth in this Article.
“Board
of Directors”
shall
mean the Board of Directors of the Company.
“Closing”
shall
mean the consummation of the purchase and sale of Securities as contemplated
by
this Agreement.
“Closing
Date”
shall
mean the date on which the Closing occurs.
“Common
Stock”
shall
mean the common stock of the Company, par value $.001 per share.
“Exchange
Act”
shall
mean the Securities and Exchange Act of 1934, as amended, and the rules
promulgation thereunder.
“Initial
Prospectus”
shall
mean the prospectus included in and made a part of the Initial Registration
Statement.
“Initial
Registration Statement”
shall
mean the registration statement of the Company (File No333-127644) on Form
S-1
under the Securities Act, effective on April 25 2007.
“Person”
means
an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or political subdivision thereof) or
other entity of any kind.
“SEC”
shall
mean the Securities and Exchange Commission.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, and the rules promulgated
thereunder.
ARTICLE
II
PURCHASE
AND SALE OF STOCK
SECTION
2.1 Covenants
of Purchase and Sale.
Subject
to and upon the terms and conditions hereof, the Investor hereby irrevocably
subscribes for and agrees to purchase from the Company such number of the
Securities as set forth in the Company’s acceptance on the signature page of
this Agreement and, upon acceptance by the Company of the Investor’s
subscription, the Company shall sell the Securities to the Investor. Subject
to
the terms and conditions hereof, the Investor’s obligation to subscribe and pay
for its Securities shall be complete and binding upon the execution and delivery
of this Agreement.
SECTION
2.2 Closing.
At
the
closing, which will take place at the offices of Loeb & Loeb LLP, counsel to
the Company two business days prior to the scheduled closing date of the
Company’s transaction with Cyalume Light Technologies, Inc. (the “Acquisition”),
but after all required approvals from the stockholders and Board of Directors
of
the Company have been obtained with respect to the Acquisition, the Investor
will pay the Company the amount of money specified on the signature page hereto
and the Company shall issue to the Investor the Securities specified on the
signature page hereto (the “Closing”).
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE INVESTOR
SECTION
3.1 Representations
and Warranties of the Investor.
(a) The
Investor represents and warrants to and agrees with the Company that each of
the
following statements will be true on the date hereof and the :
(a) The
Investor, if a juridical entity, has been duly formed and is validly existing
in
the state of its formation with all requisite power and authority to enter
into
this Agreement, to carry out the provisions and conditions hereof, and to
consummate the transactions contemplated hereby;
(b) The
execution, delivery and performance of this Agreement by the Investor has been
authorized by all necessary action and this Agreement is a legal, valid and
binding agreement of the Investor enforceable against the Investor in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity);
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(c) The
Investor is acquiring the Securities for the Investor’s own account as principal
and not with a view to, or for, resale, distribution or fractionalization
thereof, in whole, or in part, subject, however, to any requirement of law
that
the disposition of such Investor’s property shall at all times be within its
control, and no other person has or will have a direct or indirect beneficial
interest in such Securities;
(d) The
Investor understands that (i) it must bear the economic risk of an investment
in
the Securities for an indefinite period of time because, among other reasons,
the offer and sale of the Securities are intended to be exempt from registration
under the Securities Act by virtue of Section 4(2) of the Securities Act and
are
intended to be exempt from registration under any applicable state securities
laws, and (ii) notwithstanding the consent of the Company, the Securities may
not be sold, transferred, hypothecated or pledged, except pursuant to an
effective registration statement under the Securities Act and under any
applicable state securities law, or pursuant to an available exemption from
the
registration requirements of the Securities Act and any applicable state
securities laws, in all cases established to the satisfaction of the Company,
and that the Company is under no obligation to register the Securities or to
assist such Investor in complying with any exemption from the registration
thereof;
(e) The
Investor (i) has been furnished with, and hereby acknowledges the receipt of,
a
copy of the documents which have been provided to the Investor upon the
Investor’s request concerning the Company, (ii) is an “accredited investor,” as
defined in Rule 501 promulgated under the Securities Act (which definition
is
set forth on Exhibit B hereto), (iii) understands the risks of, and other
considerations relating to, a purchase of the Securities and has read the Risk
Factors relating to the Company contained in the Company’s Preliminary Proxy
Statement filed with the SEC on August 21, 2008, (iv) understands that, to
the
extent that any information set forth in the material previously presented
to it
is inconsistent with the provisions of this Agreement, the provisions of this
Agreement shall prevail and supersede such prior information, and (v) the
Investor has been given the opportunity to obtain such additional information
that it believes is necessary to verify the accuracy of the information
contained in the documents referred to in clause (i), above;
(f) The
Investor has such knowledge and experience in financial affairs such that it
is
capable of evaluating the merits and risks of purchasing the Securities, and
the
Investor has not relied in connection with this investment upon any
representations, warranties or agreements other than those set forth in this
Agreement;
(g) With
respect to the tax and other economic considerations related to this investment,
the Investor has relied only on the advice of the Investor’s own tax, legal,
accounting and financial advisers;
(h) The
Investor consents to the placement of a legend on any certificate or other
document evidencing the Securities;
(i) The
Investor represents that the address furnished by the Investor in the Investor
Questionnaire attached hereto as Exhibit C is the Investor’s principal residence
if he is an individual or its principal business address if it is a corporation
or other entity. The Investor
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certifies
under penalties of perjury that (A) the Investor’s name, taxpayer identification
or social security number and address provided in the Investor Questionnaire
are
correct, and (B) the Investor is not a non-resident alien individual, foreign
corporation, foreign partnership, foreign trust or foreign estate (as defined
in
the Internal Revenue Code of 1986, as amended);
(j) The
Investor represents that neither the Investor nor any person having direct
or
indirect beneficial interests in the Securities to be acquired pursuant to
this
Agreement appears on the Specially Designated Nationals and Blocked Persons
List
of the Office of Foreign Assets Control of the United States Department of
the
Treasury or has been designated a “suspected terrorist” as defined in Executive
Order 13224. The Investor further represents that the Investor does not know
or
have any reason to suspect that (A) the monies used to fund the Investor’s
investment in the Securities have been or will be derived from or related to
any
illegal activities or (B) the proceeds, if any, from the Investor’s investment
in the Securities will be used to finance any illegal activities. Investor
further understands that Company may release information about Investor to
proper authorities if Company determines that it is in the best interests of
Company in light of relevant rules and regulations under the laws referenced
above;
(k) The
Investor understands and acknowledges that the Securities have not been
recommended by any federal or state securities commission or regulatory
authority, that the foregoing authorities have not confirmed the accuracy or
determined the adequacy of any information concerning the Company that has
been
supplied to the Investor and that any representation to the contrary is a
criminal offense;
(l) The
Investor represents that the Investor was not induced to invest in the
Securities by any form of general solicitation or general advertising including,
but not limited to, the following: (a) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over the news or radio; and (b) any seminar or meeting whose attendees
were invited by any general solicitation or advertising; and
(m) The
Investor acknowledges that the representations, warranties and agreements made
by the Investor herein shall survive the execution and delivery of this
Agreement and the purchase of the Securities.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF
THE COMPANY
SECTION
4.1 Representations
and Warranties of the Company.
The
Company represents and warrants to and agrees with the Investor that each of
the
following statements will be true on the date hereof and the closing
date:
(a) The
Company has been duly formed and is validly existing as a corporation under
the
laws of the state of Delaware, with all requisite corporate power and authority
to enter into this Agreement, to carry out the provisions and conditions hereof,
and to consummate the transactions contemplated hereby;
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(b) The
Company is duly qualified to transact business and is in good standing in every
jurisdiction in which the character of the business conducted by it or permitted
to be conducted by it makes such qualification necessary, except where the
failure to be so qualified would not have a material adverse effect on the
business operations or financial condition of the Company; and
(c) The
execution, delivery and performance of this Agreement by the Company has been
authorized by all necessary corporate action and this Agreement is a legal,
valid and binding agreement of the Company enforceable against the Company
in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in
a
proceeding at law or in equity).
ARTICLE
V
COVENANTS
OF THE COMPANY
SECTION
5.1 Appointment
of Director.
The
Company shall, in accordance with the Company’s By-Laws, appoint Xx. Xxxx Xxxxxx
to the Board of Directors, such appointment to be effective as at the time
of
Closing, to hold office until the next annual meeting of the Board of Directors
and the appointment of his successor, or his earlier resignation or removal.
Until the earlier of (i) three years after the date of the Acquisition, and
(ii)
the date on which the Investor owns less than 50% of the shares of Common Stock
it will purchase pursuant to this Agreement, the Company’s Board of Directors
will nominate Xx. Xxxx Xxxxxx to be a member of its Board of Directors and
include him in its slate of board members to be presented to the stockholders
of
the Company for election at any meeting or consent held or signed for those
purposes.
ARTICLE
VI
REGISTRATION
RIGHTS
SECTION
6.1 Demand
Rights.
(i) At
any time commencing upon one year from the date of this agreement, the Holder
may demand registration of up to 1/3 of the Registrable Securities; (ii) at
any
time commencing upon eighteen months from the date of this Agreement, the Holder
may demand registration of up to an additional 1/3 of the Registrable
Securities; and (iii) at any time commencing upon two years from the date of
this Agreement, the Holder may demand that any remaining Registrable Securities
be registered for trading. The Company shall, after each such demand, use its
commercially reasonable efforts to cause a registration statement to be filed
pursuant to this Section to become effective as soon as reasonably practicable
thereafter and shall use its commercially reasonable efforts to keep such
registration effective until, subject to the terms and provisions of this
Agreement, the earlier of the date when (i) all the Registrable Securities
covered by the registration statement have been sold pursuant thereto or
otherwise or (ii) the Registrable Securities may bepublicly sold without volume
restrictions under Rule 144 (or any similar provisions then in force) of the
Securities Act. For the purposes
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of
this
Agreement, the term “Registrable Securities” shall mean the Shares and the
shares of Common Stock underlying the Warrants held by the investor that have
not been previously sold by the Investors or registered by the
Company.
SECTION
6.2 Rights
to Piggyback.
(a) If
(and
on each occasion that) the Company proposes to register any of its securities
under the Securities Act, either for the Company’s own account or for the
account of any of its stockholders (other than pursuant to a Form S-4 or Form
S-8 or comparable form and other than pursuant to a demand registration right
granted to other persons to the extent that such rights prohibit the Company
from including securities of any other person in such registration statement)
(each such registration not withdrawn or abandoned prior to the effective date
thereof being herein called a “Piggyback Registration”), the Company will give
written notice to the Investor (each a “Holder”) of such proposal not later than
the tenth day following the receipt by the Company of notice of exercise of
any
registration rights by any persons or twenty (20) days prior to filing of a
registration statement with the SEC, whichever shall be earlier.
(b) Subject
to the provisions contained in Section 6.3 and in the last sentence of this
paragraph (b), (A) the Company will be obligated and required to include in
each
Piggyback Registration (i) for which the Holder is given notice between one
year
and eighteen months after the date of this Agreement, up to 1/3 of the
Registrable Securities, (ii) for which the Holder is given notice between
eighteen months and two years after the date of this Agreement, up to and
additional 1/3 of the Registrable Securities, and (iii) for which the Holder
is
given notice two years or more after the date of this Agreement, any remaining
Registrable Securities, with respect to which, in each case, the Company shall
have received, within 15 days after the date on which the Company shall have
given written notice of such Piggyback Registration to the Holder, the written
requests of the Holder for inclusion in such Piggyback Registration, and (B)
the
Company will use commercially reasonable efforts in good faith to effect
promptly the registration of all such Registrable Securities. The Holder shall
be permitted to withdraw all or any part of the Registrable Securities of the
Holder from any Piggyback Registration at any time prior to the effective date
of such Piggyback Registration unless the Holder shall have entered into a
written agreement with the Company’s underwriters establishing the terms and
conditions under which the Holder would be obligated to sell such Registrable
Securities in such Piggyback Registration. The Company will not be obligated
or
required to include any shares in any registration effected solely to implement
an employee benefit plan or a transaction to which Rule 145 of the SEC is
applicable.
SECTION
6.3 Priority
on Piggyback Registrations.
If a
Piggyback Registration is an underwritten registration, and the managing
underwriters shall give written advice to the Company of a number of securities
to which such registration should, in the opinion of the managing underwriters
of such registration in the light of marketing factors, be limited (the
“Underwriters’ Maximum Number”), then: ,
if such
Piggyback Registration is initiated by the Company: (i) the Company shall be
entitled to include in such registration that number of securities which the
Company proposes to offer and sell for its own account in such registrationwhich
does not exceed the Underwriters’ Maximum Number; (ii) if the Underwriters'
Maximum Number exceeds the number of securities to be sold pursuant to clause
(i) above, then
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the
Company will be obligated and required to include in such registration that
number of Registrable Securities requested by the Holder thereof to be included
in such registration and which does not exceed such excess and such securities
to be registered shall be allocated pro rata among the Holder and any other
person to whom the Company has granted piggyback registration rights. If such
Piggyback Registration is initiated by persons exercising demand registration
rights, (i) persons exercising demand registration rights shall be entitled
to
include in such registration that number of securities which such persons
propose to offer and sell that do not exceed the Underwriters’ Maximum Number;
(ii) if the Underwriters' Maximum Number exceeds the number of securities to
be
sold pursuant to clause (i) above, then the Company will be obligated and
required to include in such registration that number of Registrable Securities
requested by the Holder thereof to be included in such registration and which
do
not exceed such excess and such securities to be registered shall be allocated
pro rata among the Holder and any other person to whom the Company has granted
piggyback registration rights.
SECTION
6.4 Procedures
on Registration.
If and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) respond
as promptly as commercially reasonable to any comments received from the SEC,
and use its commercially reasonable efforts to cause such Piggyback Registration
to become effective, and promptly provide to the Stockholder Representative
copies of all filings and SEC letters of comment relating thereto provided
that
such letters do not contain material non-public information, in which case
such
letters may be redacted by the Company;
(b) furnish
to the Holder such number of copies of the Piggyback Registration and the
prospectus included therein as the Holder reasonably may request to facilitate
the public sale or disposition of the Registrable Securities covered by such
Registration Statement;
(c) use
its
commercially reasonable efforts to register or qualify the Holder’s Registrable
Securities covered by such Piggyback Registration under the securities or “blue
sky” laws of such jurisdictions within the United States as the Holder may
reasonably request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent
to
general service of process in any such jurisdiction;
(d) list
the
Registrable Securities covered by such Piggyback Registration with any
securities exchange on which the Common Stock of the Company is then
listed;
(e) immediately
notify the Holder at any time when a prospectus relating thereto is required
to
be delivered under the Securities Act, of the happening of any event of which
the Company has knowledge as a result of which the prospectus contained in
such
Piggyback Registration, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
and
(f) notify
the Holder of the effectiveness of each registration statement
filed.
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SECTION
6.5 Selection
of Underwriters.
In any
Piggyback Registration, the Company shall have the sole right to select the
investment bankers and managing underwriters in such registration.
SECTION
6.6 Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Article VI prior to the effectiveness of such registration
whether or not the Holder has elected to include shares in such
registration.
SECTION
6.7 Indemnification.
(a) In
the
event of a registration of any securities under the Securities Act pursuant
to
this Agreement, the Company will indemnify and hold harmless the Holder, and
its
officers, directors and each other person, if any, who controls the Holder
within the meaning of the Securities Act, against any losses, claims, damages
or
liabilities, joint or several, to which the Holder, or such persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Securities were
registered under the Securities Act pursuant to this Agreement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, and will reimburse the Holder, and each
such person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however, that the Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by or on behalf of
the
Holder or (ii) the use by the Holder of an outdated or defective prospectus
(without any Company provided supplement correcting such outdated or defective
prospectus) after the Company has notified the Holder or any person in writing
that such prospectus is suspended from use, outdated or defective.
(b) In
the
event of a registration of any securities under the Securities Act pursuant
to
this Agreement, the Holder will indemnify and hold harmless the Company, its
subsidiaries and their respective officers, directors and each other person,
if
any, who controls the Company or any such subsidiary within the meaning of
the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company, any such subsidiary or such persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of any material fact
which
was furnished in writing by the Holder to the Company (and such information
is
contained in) the Registration Statement under which such Securities were
registered under the Securities Act pursuant to this Agreement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein
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not
misleading, and will reimburse the Company, its subsidiaries and each such
person for any reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action, provided, however, that the Holder will be liable in any such case
if
and only to the extent that any such loss, claim, damage or liability (i) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in conformity with information furnished
to
the Company or its subsidiary by or on behalf of the Holder or (ii) arises
from
the failure to provide as Company provided supplement correcting an outdated
or
defective prospectus after the Company has notified the Holder in writing that
such prospectus is suspended from use, outdated or defective, provided further,
that in no case shall any the Holder be liable or responsible for any amount
in
excess of the net amount received by the Holder for shares sold by him, her
or
it pursuant to such Registration Statement.
(c) Promptly
after receipt by a party entitled to claim indemnification hereunder (a “Section
6.6 Indemnified Party”) of notice of the commencement of any action, such
Section 6.6 Indemnified Party shall, if a claim for indemnification in respect
thereof is to be made against a party hereto obligated to indemnify such
Indemnified Party (an “Section 6.6 Indemnifying Party”), notify the Section 6.6
Indemnifying Party in writing thereof, but the omission so to notify the Section
6.6 Indemnifying Party shall not relieve it from any liability which it may
have
to such Section 6.6 Indemnified Party other than under this Section 6.6 and
shall only relieve it from any liability which it may have to such Section
6.6
Indemnified Party under this Section 6.6 if and to the extent the Section 6.6
Indemnifying Party is prejudiced by such omission. In case any such action
shall
be brought against any Section 6.6 Indemnified Party and it shall notify the
Section 6.6 Indemnifying Party of the commencement thereof, the Section 6.6
Indemnifying Party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such Section 6.6 Indemnified Party, and, after notice from
the
Section 6.6 Indemnifying Party to such Section 6.6 Indemnified Party of its
election so to assume and undertake the defense thereof, the Section 6.6
Indemnifying Party shall not be liable to such Section 6.6 Indemnified Party
under this Section 6.6 for any legal expenses subsequently incurred by such
Section 6.6 Indemnified Party in connection with the defense thereof; if the
Section 6.6 Indemnified Party retains its own counsel, then the Section 6.6
Indemnified Party shall pay all fees, costs and expenses of such counsel,
provided,
however, that, if the defendants in any such action include both the indemnified
party and the Section 6.6 Indemnifying Party and the Section 6.6 Indemnified
Party shall have reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to those available to
the
Section 6.6 Indemnifying Party or if the interests of the Section 6.6
Indemnified Party reasonably may be deemed to conflict with the interests of
the
Section 6.6 Indemnifying Party, the Section 6.6 Indemnified Party shall have
the
right to select separate counsel and to assume such legal defenses and otherwise
to participate in the defense of such action, with the reasonable expenses
and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the Section 6.6 Indemnifying Party as incurred.
(d) In
order
to provide for just and equitable contribution in the event of joint liability
under the Securities Act in any case in which either (i) the Holder, or any
officer, director or controlling person of the Holder, makes a claim for
indemnification pursuant to this Section 6.6 but it is judicially determined
(by
the entry of a final judgment or decree by a court
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of
competent jurisdiction and the expiration of time to appeal or the denial of
the
last right of appeal) that such indemnification may not be enforced in such
case
notwithstanding the fact that this Section 6.6 provides for indemnification
in
such case, or (ii) contribution under the Securities Act may be required on
the
part of the Holder or such officer, director or controlling person of the Holder
in circumstances for which indemnification is provided under this Article VI;
then, and in each such case, the Company and the Holder will contribute to
the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that the Holder is
responsible only for the portion represented by the percentage that the public
offering price of its securities offered by the Registration Statement bears
to
the public offering price of all securities offered by such Registration
Statement, provided, however, that, in any such case, (A) the Holder will not
be
required to contribute any amount in excess of the public offering price of
all
such securities offered by it pursuant to such Registration Statement; and
(B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 10(f) of the Act) will be entitled to contribution from any person
or
entity who was not guilty of such fraudulent misrepresentation.
ARTICLE
VII
MISCELLANEOUS
PROVISIONS
SECTION
7.1 Waiver
of suit against the Trust Account.
Reference
is made to the Final Prospectus of Vector Intersect Security Acquisition Corp.
(the “Company”),
dated
April 25, 2007 (the “Prospectus”).
Capitalized terms used and not otherwise defined in this Section 7.1 shall
have
the meanings assigned to them in Prospectus.
The
Investor has read the Prospectus and understand that the Company has established
the Trust Fund, initially in an amount of $58,030,000 for the benefit of the
Public Stockholders and the underwriters of the Company’s initial public
offering (the “Underwriters”)
and
that, except for up to a maximum of $1,500,000 of the interest earned on the
amounts held in the Trust Fund, the Company may disburse monies from the Trust
Fund only: (i) to its Public Stockholders in the event of the redemption of
their shares or the liquidation of the Company; or (ii) to the Company and
the
Underwriters after consummation of a Business Combination.
For
and
in consideration of the Company entering into this agreement with the Investor,
the Investor hereby agrees that it does not have any right, title, interest
or
claim of any kind in or to any monies in the Trust Fund or any distributions
from the Trust Fund (the “Claim”)
and
hereby waives any Claim it may have in the future as a result of, or arising
out
of, being a stockholder of the Company or any contracts or agreements with
the
Company and will not seek recourse against the Trust Fund for any reason
whatsoever.
SECTION
7.2Survival
of Representations and Warranties.
All
representations and warranties contained herein or made in writing by the
Investor or the Company in connection with the transactions contemplated by
this
Agreement shall survive the issue and sale of the Securities and the Common
Stock issuable upon the exercise of the Warrant, notwithstanding any inquiry
or
investigation at any time made by or on behalf of the Investor or the
Company.
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SECTION
7.3 Assignments,
Successors, and No Third-Party Rights.
No
party may assign any of its rights under this Agreement without the prior
consent of the other parties. Subject to the preceding sentence, this Agreement
will apply to, be binding in all respects upon, and inure to the benefit of
and
be enforceable by the respective successors and permitted assigns of the
parties. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
SECTION
7.4 Entire
Agreement and Modification.
This
Agreement supersedes all prior agreements between the parties with respect
to
its subject matter and constitutes (along with the documents referred to in
this
Agreement) a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may
not
be amended except by a written agreement executed by the party against whom
the
enforcement of such amendment is sought.
SECTION
7.5 Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable
SECTION
7.6 Applicable
Law.
This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and interpreted, construed and enforced in accordance with the
laws
of the State of New York without giving effect to the conflicts of laws
provisions thereof.
SECTION
7.7 Jurisdiction.
Each of
the parties hereto hereby irrevocably consents and submits to the jurisdiction
of the Supreme Court of the State of New York and of the United States District
Court for the Southern District of New York in connection with any suit, action
or other proceeding arising pursuant to this Agreement, and hereby
unconditionally and irrevocably waives any objection to venue in New York,
New
York, and agrees that service of any summons, complaint, notice or other process
relating to such suit, action or other proceeding may be effected in the manner
provided by applicable law. Each of the parties hereto unconditionally and
irrevocably WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO SEEK A JURY TRIAL in any
such action, suit or other proceeding.
SECTION
7.8 Counterparts.
This
Agreement may be executed in any number of separate counterparts, by facsimile
or other electronic transmission, each of which shall be deemed an original,
but
the several counterparts shall together constitute but one and the same
agreement of the parties hereto.
ARTICLE
VIII
SIGNATURES
The
following two pages constitute the signature pages for this
Agreement.
-
11 -
IN
WITNESS WHEREOF, the undersigned has executed this Investor Subscription
Agreement effective as of the ___ day of ______, 2008.
|
If
Investor is an entity, sign here:
CATALYST
EQUITY MANAGEMENT
By:
____________________________________
Name:
Title:
(Print
Name and Title of Authorized Signatory)
If
Investor is an individual, sign here:
Signature:
_______________________________
Print
Name: ______________________________
Number
of shares of Common Stock subscribed for at $8.00 per
share:
593,750
Number
of Warrants to Purchase Common Stock: 118,750
Aggregate
Purchase Price:
$4,750,000
|
U.S.
Tax ID Number or Social Security Account Number (as
applicable):
___________________________
(if
none, so state)
|
WIRE
TRANSFER INSTRUCTIONS
The
wire
transfer instructions for the Company’s account is as follows:
-
12 -
ACCEPTANCE
OF SUBSCRIPTION
Accepted
as to 593,750 shares of Stock and warrants to purchase 118,750 shares of stock
for $4,750,000 Aggregate Purchase Price.
Date
Subscription Accepted: ___________, 2008.
By:
__________________________
Name:
Title:
-
13 -
EXHIBIT
A
FORM
OF WARRANT
A-1
EXHIBIT
B
EXHIBIT
C
The
term
“accredited investor” refers to any person or entity who comes within any of the
following categories or the Company reasonably believes comes within any of
the
following categories:
|
1.
|
Any
bank as defined in Section 3(a)(2) of the Securities Act, or any
savings
and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; any broker or dealer registered
pursuant
to Section 15 of the Securities Exchange Act of 1934; insurance
company as defined in Section 2(13) of the Securities Act; investment
company registered under the Investment Company Act of 1940 or a
business
development company as defined in Section 2(a)(48) of the Investment
Company Act of 1940; Small Business Investment Company licensed by
the
U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; any plan established and maintained
by a state, its political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the benefit of employees,
if
such plan has total assets in excess of $5,000,000; employee benefit
plan
within the meaning of Title I of the Employee Retirement Income Security
Act of 1974 (“ERISA”), if the investment decision is made by a plan
fiduciary, as defined in Section 3(2) of ERISA, which is either a
bank, a savings and loan association, insurance company, registered
investment advisor, or if the employee benefit plan has total assets
in
excess of $5,000,000 or if a self-directed plan, with investment
decisions
made solely by persons that are accredited
investors;
|
|
2.
|
Any
private business development company as defined in Section 202(a)(22)
of the Investment Advisors Act of
1940;
|
|
3.
|
Any
organization described in Section 501(c)(3) of the Internal Revenue
Code,
corporation, Massachusetts or similar business trust or partnership
not
formed for the specific purpose of acquiring the securities offered,
with
total assets in excess of
$5,000,000;
|
|
4.
|
Any
trust with total assets in excess of $5,000,000 not formed for the
specific purpose of acquiring the securities offered, whose purchase
is
directed by a sophisticated person as described in Rule 506 of Regulation
D;
|
|
5.
|
Any
natural person whose individual net worth or joint net worth with
that
person’s spouse, at the time of his purchase, exceeds
$1,000,000;
|
|
6.
|
Any
natural person who had an individual income in excess of $200,000
in each
of the two most recent years or joint income with that person’s spouse in
excess of $300,000 in each of those years and has a reasonable expectation
of reaching the same income in the current year;
or
|
|
7.
|
Any
entity in which all of the equity owners are accredited
investors.
|
C-1
EXHIBIT
D
INVESTOR
QUESTIONNAIRE
All
prospective investors in Vector Intersect Security Acquisition Corp. (the
“Company”) are required to complete this questionnaire in order to purchase
Common Stock. In addition, supplemental information may be required, at the
Company’s discretion, in order to confirm the investor’s eligibility to invest
in the Company as an accredited investor under the Securities Act of 1933,
as
amended (the “Act”).
Prospective
investors must initial those representations applicable to the investor and
hereby represents and warrants that those representations which are initialed
are true and correct.
| FOR INDIVIDUAL INVESTORS: | ||
| 8. |
Investor
represents that he or she has an individual net worth, or together
with
his or her spouse a combined net worth, in excess of $1,000,000.
For
purposes of this representation, “net worth” means the excess of total
assets at fair market value, including, home,*
home
furnishings and automobiles, over total liabilities.
|
|
|
9.
|
Investor
represents that he or she had an individual income of more than $200,000
in each of the last two calendar years or joint income with his or
her
spouse in excess of $300,000 in each of those years and reasonably
expects
to reach the same income level in the current calendar
year.
|
|
| FOR CORPORATIONS, PARTNERSHIPS OR LIMITED LIABILITY COMPANIES: | ||
|
10.
|
Investor
represents that it is a corporation, Massachusetts or similar business
trust, or partnership not formed for the specific purpose of acquiring
Units with total assets in excess of
$5,000,000.
|
|
| * |
For
purposes of determining “net worth,” the principal residence owned by an
individual must be valued either at (A) cost, including the cost
of
improvements, net of current encumbrances upon the property,
or (B) the
appraised value of the property as determined upon a written
appraisal
used by an institutional lender making a loan to the individual
secured by
the property, including the cost of subsequent improvements,
net of
current encumbrances upon the property. “Institutional lender” means a
bank, savings and loan company, industrial loan company, credit
union or
personal property broker or a company whose principal business
is as a
lender upon loans secured by real property and that has such
loans
receivable in the amount of $2,000,000 or
more.
|
D-1
|
11.
|
Investor
represents that all of its equity owners meet the standard set out
in
Statement (1) above ($ 1,000,000 net worth) or Statement (2) above
($200,000 individual income or $300,000 joint income). For purposes
of
this representation, “net worth” means the excess of total tangible assets
at current value less total liabilities. Please list below the names
of
all equity owners of Investor. EACH
SUCH EQUITY OWNER MUST COMPLETE AN INVESTOR QUESTIONNAIRE.
|
|
|
Name
of All Equity Owners
____________________________
____________________________
____________________________
|
||
|
FOR
TRUSTS OTHER THAN EMPLOYEE BENEFIT TRUSTS:
|
||
|
12.
|
Investor
represents that it has total assets in excess of $5,000,000, was
not
formed for the specific purpose of acquiring Units and that the investment
is being directed by a sophisticated person as defined below. For
purposes
of this representation, a “sophisticated person” means a person who has
such knowledge and experience in financial and business matters that
he or
she is capable of evaluating the merits and risks of the prospective
investment.
|
|
|
13.
|
Investor
represents that it is (a) a bank as defined in Section 3(a)(2) of
the Act,
(b) acting in its fiduciary capacity as trustee, (c) subscribing
for the
purchase of the securities being offered on behalf of a
trust.
|
|
|
14.
|
Investor
represents that it is a revocable trust that may be amended or revoked
at
any time by its grantors and that all of its grantors meet the standard
set out in Statement (1) above ($1,000,000 net worth) or statement
(2)
(above $200,000 individual income or $300,000 joint income). Please
list
below the names of all grantors. EACH
SUCH GRANTOR MUST COMPLETE AN INVESTOR QUESTIONNAIRE.
|
|
|
Name
of Grantors
____________________________
____________________________
____________________________
|
||
D-2
| FOR EMPLOYEE BENEFIT PLAN; OR STATE PLANS: | ||
|
15.
|
Investor
represents that it is an employee benefit plan within the meaning
of Title
I of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), with respect to which the decision to invest was made by a plan
fiduciary as defined in Section 3(21) of ERISA that is a bank, savings
and
loan association, insurance company or investment adviser registered
under
the Investment Advisers Act of 1940, as amended (the “1940
Act”).
|
|
|
16.
|
Investor
represents that it is an employee benefit plan within the meaning
of Title
I of ERISA and it has total assets in excess of
$5,000,000.
|
|
|
17.
|
Investor
represents that it is a self-directed plan with respect to which
the
decision to invest was made solely by persons who are “accredited
investors” within the meaning of Regulation D under the
Act.
|
|
|
18.
|
Investor
represents that it is a plan established and maintained by a state,
its
political subdivisions, or an agency or instrumentality of a state
or its
political subdivisions, for the benefit of its employees, and that
it has
total assets in excess of $5,000,000.
|
|
|
FOR
CHARITABLE ORGANIZATIONS:
|
||
|
19.
|
Investor
represents that it is an organization described in Section 501(c)(3)
of
the Code not formed for the specific purpose of acquiring Units with
total
assets in excess of $5,000,000.
|
|
|
OTHER
ACCREDITED INVESTORS:
|
||
|
20.
|
Investor
represents that it is either a non-resident alien of the United States,
a
foreign entity (i.e., not formed under the laws of any state of the
United
States or its territories) or a bank as defined in Section 3 (a)(2)
of the
Act whether acting in its individual or fiduciary
capacity.
|
|
|
21.
|
Investor
represents that it is a savings and loan association or other institution
specified in Section 3(a)(5)(A) of the Act whether acting in its
individual or fiduciary capacity.
|
|
|
22.
|
Investor
represents that it is a broker or dealer registered pursuant to Section
15
of the Securities Exchange Act of 1934.
|
|
|
23.
|
Investor
represents that it is an insurance company as defined in
Section 2(13) of the Act.
|
|
D-3
|
24.
|
Investor
represents that it is an investment company registered under the
1940
Act.
|
|
|
25.
|
Investor
represents that it is a business development company as defined in
Section
2(a)(48) of the 0000 Xxx.
|
|
|
26.
|
Investor
represents that it is a Small Business Investment Company licensed
by the
U.S. Small Business Administration under Section 301(c) or (d) of
the
Small Business Investment Act of 1958, as amended.
|
|
| 27. |
Investor
represents that it is a private business development company as defined
in
Section 202(a)(22) of the 1940 Act.
|
A. Primary
Contact Person for General Notices:
Name:
_______________________________________
Address:
_____________________________________
_______________________________________
Telephone:
___________________________________
Fax:
_________________________________________
E-mail:
_______________________________________
B. Contact
Person for Financial Information and Reporting (including quarterly and annual
financial reports), Distributions and Tax Matters (including Form K-1) if
different from A, above:
Name:
_______________________________________
Address:
_____________________________________
____________________________________________
Telephone:
___________________________________
Fax:
_________________________________________
E-mail:
_______________________________________
C. Address
of Investor (if different from A, above):
_______________________________________
_______________________________________
_______________________________________
D-4
For
distributions of cash, please wire funds to the following bank account:
Bank
Name: ___________________________________
Bank
Location: ________________________________
Account
Number: ______________________________
For
further credit to (if any): _______________________
Reference:
____________________________________
For
distributions in kind, please credit securities to my brokerage account at
the
following firm:
Firm
Name: ____________________________________
Address:
_____________________________________
Account
Name: ________________________________
Account
Number: ______________________________
DTC
Number: _________________________________
|
Dated:
___________, 2008
|
_______________________________________________
Name,
if individual
________________________________________________
Signature,
if individual
________________________________________________
Name,
if Entity
By:
_____________________________________________
Title:
____________________________________________
|
D-5
