Contract
Exhibit 10.25
AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT, dated as of May 14, 2015 (this “Agreement”), by and among StationDigital Corporation, a Delaware corporation (the “Company”), each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”) and solely for purposes of Section 9 hereof, Steel Pier Capital Advisors, LLC, in its capacity as collateral agent (the “Collateral Agent”).
WHEREAS, this Agreement amends and restates in its entirety that Securities Purchase Agreement dated June 30, 2014.
1. DEFINITIONS. For purposes of this Agreement, unless the context otherwise requires, the following terms shall have the following respective meanings:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Agreement” has the meaning provided in the preamble.
“Business Day” means a day other than a Saturday or Sunday or other day on which commercial banks in New York, New York are authorized or required to close.
“Claim” has the meaning provided in Section 7.3(b).
“Closing” has the meaning provided in Section 2.2(a).
“Closing Date” shall be May 14, 2015.
“Code” means the United States Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning provided in Section 3 of the Security Agreement.
“Collateral Agent” has the meaning provided in the preamble.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the common stock, $0.0001 par value per share, of the Company.
“Company” has the meaning provided in the preamble.
“Company’s Knowledge” means the actual knowledge of the Company’s CEO and any of the officers of the Company, after due investigation.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Contracts” has the meaning provided in Section 3.7.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) shares of Common Stock or options or restricted stock units to consultants, employees, officers or directors of the Company approved by the Board of Directors, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.
“Financial Statements” has the meaning provided in Section 3.16.
“GAAP” means generally accepted accounting principles as in effect from time to time and consistently applied and maintained throughout the periods indicated. Whenever any accounting term is used herein which is not otherwise defined, it shall have the meaning ascribed thereto under GAAP.
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“Indebtedness” means (a) any liabilities for borrowed money or amounts owed in excess of $25,000 (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c) the present value of any lease payments in excess of $25,000 due under leases required to be capitalized in accordance with GAAP.
“Indemnified Party” has the meaning provided in Section 7.3(b).
“Indemnifying Party” has the meaning provided in Section 7.3(b).
“Indemnitee Losses” has the meaning provided in Section 7.3(a).
“Liabilities” has the meaning provided in Section 3.16.
“Liens” means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” means a material adverse effect on the Company’s business, assets, properties, condition (financial or otherwise), results of operation or prospects, or on the ability of the Company to perform its obligations under and consummate the transactions contemplated by this Agreement.
“Material Contracts” has the meaning provided in Section 3.6.
“Notes” means the 15% Senior Secured Convertible Notes due, subject to the terms therein, 9 months from their date of issuance, issued by the Company to the Purchasers hereunder, in the form of Exhibit A attached hereto.
“Permitted Indebtedness” means (a) the Indebtedness evidenced by the Notes, (b) the Indebtedness existing on the Original Issue Date and set forth on Schedule 3.21 attached to this Agreement, (c) lease obligations and purchase money indebtedness of up to $500,000, in the aggregate, incurred in connection with the acquisition of capital assets and lease obligations with respect to newly acquired or leased assets, and (d) interest accruing after the date hereof on the aforesaid items.
“Permitted Lien” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental charges or levies not yet due or Liens for taxes, assessments and other governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been (if required to be) established in accordance with GAAP; (b) Liens imposed by law which were incurred in the ordinary course of the Company’s business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the property or asset subject to such Lien; (c) Liens incurred in connection with Permitted Indebtedness under clauses (a), and (b) thereunder; and (d) Liens incurred in connection with Permitted Indebtedness under clause (c) thereunder, provided that such Liens are not secured by assets of the Company or its Subsidiaries other than the assets so acquired or leased.
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“Person” means any natural person, corporation, partnership, limited liability company, association, government, governmental agency or other entity, whether acting in an individual, fiduciary or other capacity.
“Purchaser” has the meaning provided in the preamble.
“Qualified Equity Applicable Price” shall have the meaning ascribed to such term in the form of Note.
“Qualified Financing” shall have the meaning ascribed to such term in the form of Note.
“Secured Parties” has the meaning provided in the Security Agreement.
“Securities” means the Notes, the Warrants, and the Underlying Shares.
“Security Agreement” means that certain Amended and Restated Security Agreement between the Company and Steel Pier Capital Advisors, LLC in its capacity as collateral agent on behalf of the several Purchasers in the form of Exhibit C attached hereto.
“Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for the Notes purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.
“Transaction Documents” means this Agreement, the Warrants, the Notes, the Security Agreement and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Trading Day” means a day on which the New York Stock Exchange is open for trading.
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“Trading Market” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the OTC Bulletin Board, the American Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange.
“Transfer Agent” means West Coast Stock Transfer, Inc., the current transfer agent of the Company with a mailing address of 000 X. Xxxxxx Xxx. Xxx. 000, Xxxxxxxxx, XX 00000 and a facsimile number of (000) 000-0000, and any successor transfer agent of the Company.
“Underlying Shares” means Warrant Shares and the shares of Common Stock issued and issuable upon conversion of the Notes.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. New York City time to 4:02 p.m. New York City time); (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then listed or quoted on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink Sheets, LLC (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported; or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be exercisable commencing on the date of issuance and shall have a term of exercise equal to five (5) years therefrom, in the form of Exhibit B attached hereto.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
2. PURCHASE AND SALE OF THE NOTES AND WARRANTS.
2.1 Sale and Transfer of Notes and Warrants.
(a) Subject to the terms and conditions set forth in this Agreement, the Company agrees to sell, and the Purchaser agrees to purchase $75,000 in principal amount (the “Principal”) of the Notes and the Warrants.
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The obligations of Purchaser and the Company shall be subject to the following conditions: (i) absence of any event having a Material Adverse Effect on the Company, its business or its assets and (ii) approval by the board of directors of the Company of the transactions contemplated hereby.
(i) this Agreement duly executed by the Company;
(ii) a Note with a principal amount equal to such Purchaser’s Subscription Amount, registered in the name of such Purchaser, evidencing the principal amount of Notes that Purchaser is purchasing, against payment of the Subscription Amount therefor by certified or bank check or wire transfer to such account as the Company may designate to the Purchaser;
(iii) a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to such Purchaser’s Subscription Amount (i.e., for every dollar paid by such Purchaser for the Note such Purchaser shall receive a warrant to purchase one share of Common Stock) at an exercise price equal to the lesser of (A) 70% of the per share price for a share of Common Stock sold in the Qualified Financing and (B) $0.45 per share, subject to adjustment therein; and
(i) this Agreement duly executed by such Purchaser;
(ii) such Purchaser’s Subscription Amount by wire transfer to the following account:
Bank of America
0000 X. Xxxxxxxxx Xxxx., Xxxxxxxxx, XX 00000
A/C of StationDigital Corporation
ABA Routing No.:
Account No.:
Provided that (i) Purchaser has satisfied all conditions set forth in this paragraph (c), and (ii) the Company has accepted and executed this Agreement, the Notes and Warrants purchased by Purchaser will be delivered by the Company promptly following the Closing Date and the Purchaser’s Subscription Amount shall be released to the Company.
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3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
As a material inducement to the Purchaser to enter into this Agreement and purchase the Notes, the Company hereby represents, warrants and covenants to Purchaser as follows:
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3.7 Contracts and Other Commitments. Schedule 3.7 lists all contracts, agreements, leases, commitments, instruments, arrangements and understandings (“Contracts”), whether written or oral, to which the Company is a party which require payments by either party thereto in excess of $250,000 or are otherwise material to the Company (the “Material Contracts”). The Material Contracts are valid and legally binding, are in full force and effect and are enforceable in accordance with their respective terms. The Company has not assigned, mortgaged, pledged, encumbered or otherwise hypothecated any of its right, title or interest under the Material Contracts. Except as set forth on Schedule 3.7, neither the Company nor, to the Company’s Knowledge, any other party thereto is in violation of or in default in respect of any Material Contract. No notice or other communication has been received by the Company claiming any such violation or default by the Company or indicating the desire or intention of any other party thereto to amend, modify, rescind or terminate any Material Contract.
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3.16 Tax Returns, Payments and Elections.
(a) The Company has filed all Tax Returns which are required to be filed by it. Such Tax Returns are true, correct and complete in all material respects. All Taxes owed by the Company, whether or not shown on any Tax Return, have been timely paid, except with respect to Taxes which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Tax Returns of the Company have not been audited by the Internal Revenue Service or other applicable Tax authority, and no controversy with respect to Taxes of any type is pending or, to the Company’s Knowledge, threatened. Since the date of the Financial Statements, the Company has made adequate provision on its books of account for all Taxes, assessments and governmental charges with respect to its business, assets, properties and operations for such period.
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(b) The Company has never been an S corporation within the meaning of Sections 1361 and 1362 of the Code at any time during its existence. The Company has never been the common parent or a member of any affiliated group of corporations filing a consolidated federal income tax return. The Company is not a party to any tax sharing agreement or other arrangement pursuant to which it could be liable for any Taxes of any Person. The Company has not filed a consent under Section 341(f) of the Code regarding collapsible corporations.
(c) The Company has withheld and paid all Taxes required to have been withheld and paid with respect to amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party. All independent contractors are properly classified as such.
(d) For purposes of this Section 3.16:
“Tax” shall mean any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on-minimum, estimated or other tax of any kind whatsoever, including any interest, penalty or addition thereto, whether disputed or not.
“Tax Return” shall mean any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto and any amendment thereof.
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3.21 Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding, it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified term, (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, may presently have a “short” position in the Common Stock and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the Underlying Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.
3.25 Xxxxxxxx-Xxxxx; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
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3.26 Use of Proceeds. The proceeds from the offering and sale of the Securities will be used for working capital and general corporate purposes as specified in Schedule 3.26.
3.27 No Commissions. The Company has not incurred any obligation for any finder’s, broker’s or agent’s fees or commissions in connection with the transaction contemplated hereby.
3.28 Intellectual Property Rights. The Company and its subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service xxxx registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. The Company and its subsidiaries do not have any knowledge of any infringement by the Company or its subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service xxxx registrations, trade secret or other similar rights of others, or of any such development of similar or identical trade secrets or technical information by others and, except as set forth on Schedule 3.28, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the Company or its subsidiaries regarding trademarks, trade name rights, patents, patent rights, inventions, copyrights, licenses, service names, service marks, service xxxx registrations, trade secrets or other infringement.
3.29 Employee Benefits; ERISA. The Company has no employee benefit plans, programs, policies and arrangements.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
As a material inducement to the Company to enter into this Agreement and purchase the Notes, the Purchaser hereby represents, warrants and covenants to Company as follows:
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4.11 Short Sales and Confidentiality Prior to the Date Hereof. Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing from the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”). Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).
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5. CONDITIONS OF THE PURCHASER’S OBLIGATIONS AT CLOSING. The obligations of Purchaser to purchase the Notes are subject to the fulfillment or waiver at or before the Closing of each of the following conditions:
6. CONDITIONS OF THE SELLER’S OBLIGATIONS AT CLOSING. The obligations of the Company to Purchaser to transfer and sell the Notes to Purchaser are subject to the fulfillment or waiver at or before the Closing of each of the following conditions:
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7. OTHER AGREEMENTS OF THE PARTIES
The Purchasers agree to the imprinting, so long as is required by this Section 7.1, of a legend on any of the Securities in substantially the following form:
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE] HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities.
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Certificates evidencing the Underlying Shares shall not contain any legend: (i) while a registration statement covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for sale under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Note is converted or Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Underlying Shares shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required under this Section 7.1, it will, no later than three (3) Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends, in addition, the Company shall deliver such Purchaser a copy of such opinion, the instruction letter to the Transfer Agent, the resolution of the Board of Directors authorizing the Transaction Documents and any additional supporting documentation requested by the Purchaser as may be requested by the Purchaser in order to deposit Underlying Shares in accounts with its prime broker (or other brokerage account); provided, however, in the event the restrictive legend on such certificate is being removed pursuant to Rule 144 or such Underlying Shares as first being issued without legend in reliance on Rule 144, such Purchaser shall, at the time of delivery of such certificates to the Company or Transfer Agent, represent to the Company and Company Counsel that (i) it intends to sell such Underlying Shares prior to the filing date of the Company’s next period report and (ii) if such Underlying Shares are not sold by such filing date and such Underlying Shares are no longer eligible for resale under Rule 144 such Purchaser will deliver such shares to the Transfer Agent or Company to have the restrictive legend placed back on such certificates representing such Underlying Shares. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 7.1. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.
7.2 Furnishing of Information; Public Information.
(a) Until the earliest of the time that no Purchaser owns Securities, the Company covenants to obtain and maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
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(b) At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that no Purchaser shall hold any Underlying Shares, if the Company shall fail for any reason to satisfy the current public information requirement under Rule 144(c) (a “Public Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent (2.0%) of the aggregate Subscription Amount of such Purchaser’s Securities on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that no Purchaser shall hold any Underlying Shares. The payments to which a Purchaser shall be entitled pursuant to this Section 7.2(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) three (3) Business Days after the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.
7.4 Participation in Future Financing.
(a) From the date hereof until the date that is the 12 month anniversary of the Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock, Common Stock Equivalents for cash consideration, Indebtedness or a combination thereof (a “Subsequent Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 50% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
(b) At least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.
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(c) Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such fifth (5th) Trading Day, such Purchaser shall be deemed to have notified the Company that it does not elect to participate.
(d) If by 5:30 p.m. (New York City time) on the fifth (5th ) Trading Day after all of the Purchasers have received the Pre-Notice, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.
(e) If by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 7.4 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers participating under this Section 7.4.
(f) The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 7.4, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial Subsequent Financing Notice.
(g) The Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of such Purchaser.
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(h) Notwithstanding anything to the contrary in this Section 7.4 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession of any material, non-public information, by the tenth (10th) Business Day following delivery of the Subsequent Financing Notice. If by such tenth (10th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.
8. MISCELLANEOUS.
(a) The Company hereby agrees to indemnify and hold harmless the Purchaser, his, her or its affiliates and respective officers, directors, partners, advisors, members, shareholders, employees and agents (collectively, the “Purchaser’ Indemnitees”) from and against any and all losses, claims, damages, judgments, penalties, liabilities and deficiencies (collectively, “Indemnitee Losses”), and agrees to reimburse the Purchaser’ Indemnitees for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of legal counsel), in each case promptly as incurred by the Purchaser’ Indemnitees and to the extent arising out of or in connection with: (i) any material misrepresentation or material breach of any of the Company’s representations or warranties contained in this Agreement or the annexes, schedules or exhibits hereto; or (ii) any failure by the Company to perform any of the Company’s covenants, agreements, undertakings or obligations set forth in this Agreement or the annexes, schedules or exhibits hereto. The maximum aggregate liability of the Company for claims pursuant to this Section 8.3 shall be the Subscription Amount. Notwithstanding anything to the contrary contained herein, the Company shall not have any liability for indemnification pursuant to this Section 8.3 until the aggregate Indemnitee Losses are in excess of 5% of the Subscription Amount, at which point the Company shall be liable for the entire amount of Indemnitee Losses up to the maximum aggregate liability hereunder.
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(b) Promptly after receipt by any indemnitee seeking indemnification pursuant to this Section 8.3 of written notice of any investigation, claim, proceeding or other action in respect of which indemnification is being sought (each, a “Claim”), the indemnitee seeking indemnification therefor (an “Indemnified Party”) promptly shall notify the Company (the “Indemnifying Party”) of the commencement thereof; but the omission to so notify the Indemnifying Party shall not relieve it from any liability that it otherwise may have to the Indemnified Party, except to the extent that the Indemnifying Party is materially prejudiced by reason of such failure. In connection with any Claim as to which both the Indemnifying Party and the Indemnified Party are parties, the Indemnifying Party shall be entitled to assume the defense thereof. Notwithstanding the assumption of the defense of any Claim by the Indemnifying Party, the Indemnified Party shall have the right to employ separate legal counsel and to participate in the defense of such Claim, and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs and expenses of such separate legal counsel to the Indemnified Party if (and only if): (x) the Indemnifying Party shall have agreed to pay such fees, out-of-pocket costs and expenses, (y) the Indemnified Party reasonably shall have concluded that representation of the Indemnified Party and the Indemnifying Party by the same legal counsel would not be appropriate due to actual or, as reasonably determined by legal counsel to the Indemnified Party, potentially differing interests between such parties in the conduct of the defense of such Claim, or if there may be legal defenses available to the Indemnified Party that are in addition to or disparate from those available to the Indemnifying Party, or (z) the Indemnifying Party shall have failed to employ legal counsel reasonably satisfactory to the Indemnified Party within a reasonable period of time after notice of the commencement of such Claim. If the Indemnified Party employs separate legal counsel in circumstances other than as described in clauses (x), (y) or (z) above, the fees, costs and expenses of such legal counsel shall be borne exclusively by the Indemnified Party. Except as provided above, the Indemnifying Party shall not, in connection with any Claim in the same jurisdiction, be liable for the fees and expenses of more than one firm of legal counsel for the Indemnified Party (together with appropriate local counsel). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not unreasonably be withheld), settle or compromise any Claim or consent to the entry of any judgment that does not include an unconditional release of the Indemnified Party from all Liabilities with respect to such Claim or judgment.
(c) In the event an Indemnified Party shall have a claim for indemnification hereunder that does not involve a claim or demand being asserted by a third party, the Indemnified Party promptly shall deliver notice of such claim to the Indemnifying Party. If the Indemnified Party disputes the claim, such dispute shall be resolved by mutual agreement of the Indemnified Party and the Indemnifying Party or, failing any such agreement, by order or judgment of a court of appropriate jurisdiction.
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(a) if to the Company, to:
StationDigital Corporation
0000 Xxxxxxx Xxxxxx, #000
Xx. Xxxxx, XX 00000
Attention: Xxxxx Xxxxx, CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxxxx.xxx
With a copy to (which shall not constitute notice):
Xxxxxx X. Xxxxxx, Esq.
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
00 Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
(b) If to a Purchaser or the Collateral Agent, to the address of such Purchaser or the Collateral Agent, as applicable, set forth on the signature pages hereto.
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8.8 GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THE TRANSACTION DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. EACH PARTY AGREES THAT ALL LEGAL PROCEEDINGS CONCERNING THE INTERPRETATION, ENFORCEMENT AND DEFENSE OF THE TRANSACTIONS CONTEMPLATED BY ANY OF THE TRANSACTION DOCUMENTS (WHETHER BROUGHT AGAINST A PARTY HERETO OR ITS RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR AGENTS) SHALL BE COMMENCED IN THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, COUNTY OF NEW YORK (THE “NEW YORK COURTS”). EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE NEW YORK COURTS FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH NEW YORK COURTS, OR SUCH NEW YORK COURTS ARE IMPROPER OR INCONVENIENT VENUE FOR SUCH PROCEEDING. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE TRANSACTION DOCUMENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. IF EITHER PARTY SHALL COMMENCE AN ACTION OR PROCEEDING TO ENFORCE ANY PROVISIONS OF THE TRANSACTION DOCUMENTS, THEN THE PREVAILING PARTY IN SUCH ACTION OR PROCEEDING SHALL BE REIMBURSED BY THE OTHER PARTY FOR ITS REASONABLE ATTORNEYS’ FEES AND OTHER REASONABLE COSTS AND EXPENSES INCURRED IN THE INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH ACTION OR PROCEEDING.
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9. THE COLLATERAL AGENT.
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9.3 The Collateral Agent’s Duties under the Security Agreement.
(a) The powers conferred on the Collateral Agent hereunder are solely to protect the Secured Parties’ interests in the Collateral. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder for the benefit of the Secured Parties, the Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not any Secured Party has or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property.
(b) The Collateral Agent’s duties and responsibilities hereunder shall be determined solely by the express provisions of this Agreement, and no other further duties or responsibilities shall be implied. The Collateral Agent makes no representation and has no responsibility as to the validity of this Agreement or of any other instrument referred to herein, or the creation or perfection of any security interest. The Collateral Agent shall not be liable for any error of judgment, or any act done or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection therewith, except its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment.
(c) In no event shall the Collateral Agent incur any liability for not performing any act or fulfilling any obligation hereunder by reason of any occurrence beyond its control (including, without limitation, any provision of any present or future law or regulation or any act of any governmental authority, any act of God, war or terrorism, or the unavailability of the Federal Reserve Bank wire services or any electronic communication facility).
(d) The Company and each Purchaser shall deliver to the Collateral Agent on or before the date hereof an authority and incumbency certificate, or a delegation of authority, setting forth the names, specimen signatures and telephone contacts of each Person authorized to provide directions to the Collateral Agent and promptly provide any changes thereto from time to time thereafter by delivering to the Collateral Agent a replacement of such certificate substantially in such form as is reasonably acceptable to the Collateral Agent. The Collateral Agent shall be entitled to rely conclusively on such certificate until it receives such a replacement certificate. The parties hereto agree that the above constitutes a commercially reasonable security procedure and further agree not to comply with any instruction or direction (other than those contained herein or delivered in accordance with this Agreement) from any other Person.
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9.5 Collateral Agent’s Performance.
(a) The Collateral Agent shall:
(i) promptly inform each Purchaser of the contents of any written notice or document that, in its capacity as the Collateral Agent, it receives from or delivers to the Company or any governmental authority;
(ii) except as otherwise expressly provided in any Transaction Document, perform its duties in accordance with any written instructions given to it by a Purchaser, provided that it shall not be required to take any action that exposes it to personal liability or expense, or for which indemnification deemed sufficient by it in its reasonable discretion has not been provided, or that is contrary to the Transaction Documents or any applicable law; and
(iii) if so instructed by any Purchaser in writing, pursuant to the provisions of clause (ii) above, refrain from exercising any right, power, authority or discretion vested in it as the Collateral Agent hereunder or under any other Transaction Document.
(b) Except as otherwise expressly provided in this Agreement, the Collateral Agent shall not take any actions other than upon the written instruction of each Purchaser.
9.6 Reliance by Collateral Agent; Right to Request Instruction.
(a) Notwithstanding anything to the contrary in this Agreement (except in the case of gross negligence or willful misconduct on the part of the Collateral Agent as determined by a court of competent jurisdiction in a final and non-appealable judgment), the Collateral Agent will be entitled to rely upon, and shall incur no liability and shall be fully protected in relying upon, any certificate, notice or other document (including any facsimile, telex or other electronic communication) reasonably believed by it to be genuine and correct and to have been signed or sent by or on behalf of the Person or Persons purporting to issue such certificate, notice or other document, and upon advice and statement of legal counsel, independent accountants and other experts selected by the Collateral Agent with reasonable care. As to any matters not expressly provided for by this Agreement, or the Security Agreement, the Collateral Agent will not be required to take any action or exercise any discretion. Notwithstanding anything else herein to the contrary, whenever reference is made in any Transaction Document to any discretionary action by, consent, designation, specifications, requirement or approval of, notice, request or other communications from or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent will have the right at any time to seek instructions from each Purchaser, and will, in all such cases, have no liability in acting, or in refraining from acting, hereunder in accordance with the written instruction, advice or concurrence of the Purchasers, as it deems appropriate. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and it not intended to and will not entitle the other parties thereto to any defense, claim or counterclaim, or confer any rights or benefits on any of them.
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(b) The Collateral Agent shall not be liable (i) with respect to any action taken or omitted to be taken by it in good faith in accordance with the written direction of each Purchaser relating to the time, method and place of conducting any proceeding for any remedy available to such Purchaser, or exercising any trust or power conferred upon such Purchaser, under this Agreement or any other Transaction Document, or (ii) for any loss of profits, consequential, incidental, punitive, exemplary or indirect damages.
(c) The Collateral Agent shall not be deemed to have knowledge of the existence of any default or event of default under any Transaction Document until such time as it has received notification of the same from each Purchaser or the Company.
(d) Except as provided in Section 9.7, no provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
9.7 Resignation of the Collateral Agent.
(a) Subject to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by giving at least ninety (90) days’ prior written notice thereof to each Purchaser and the Company. Upon any such resignation, each Purchaser will have the right and responsibility to appoint a successor Collateral Agent, which successor Collateral Agent shall (unless any default or event of default under any Transaction Document has occurred and is continuing) be reasonably acceptable to the Company. If no successor Collateral Agent has been appointed by the Purchasers and has accepted such appointment within ninety (90) days after the retiring Collateral Agent’s giving of written notice of resignation, then such retiring Collateral Agent may apply to any court of competent jurisdiction to appoint a successor Collateral Agent to act until such time, if any, as a successor Collateral Agent is otherwise appointed in accordance with this Section 9.7. Until the appointment of a successor Collateral Agent by such court, such retiring Collateral Agent shall continue to act as Collateral Agent pursuant to the terms of this Agreement and the other Transaction Documents. Any successor Collateral Agent appointed by such court shall immediately and without further act be superseded by any successor Collateral Agent appointed by the Purchasers in accordance with this Section 9.7. Upon its acceptance of appointment as Collateral Agent hereunder, (i) a successor Collateral Agent will thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent and the retiring Collateral Agent will be discharged from its duties and obligations hereunder and each relevant Transaction Document and (ii) the retiring Collateral Agent will promptly transfer all of the Collateral in its possession or control held in the name of the retiring Collateral Agent for the benefit of each Purchaser and will execute and deliver such notices, instructions and assignments as may be necessary or desirable to transfer the rights of the Collateral Agent for the benefit of each Purchaser with respect to such Collateral to the successor Collateral Agent for the benefit of each Purchaser. After the retiring Collateral Agent’s resignation hereunder as Collateral Agent, the provisions of this Section 9 of this Agreement and Section 6.08 of the Security Agreement will continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent.
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(b) If the Collateral Agent resigns pursuant to this Section 9.7, the resigning Collateral Agent (at its own cost and expense), shall make available to the successor Collateral Agent such records, documents and information in the resigning Collateral Agent’s possession and provide such assistance as the successor Collateral Agent may reasonably request in connection with its appointment as the successor Collateral Agent. For the avoidance of doubt, other than the costs and expenses set forth in the preceding sentence, all costs and expenses associated with the appointment of a successor Collateral Agent shall be for the account of the Company in accordance with Section 6.07 and Section 6.08 of the Security Agreement.
9.10 Additional Disclosures. As of the date hereof the Collateral Agent is the holder of a $500,000 Secured Promissory Note issued by the Company pursuant to the terms of the Amended and Restated Securities Purchase Agreement dated as of August 26, 2014. In addition, the Collateral Agent also owns less than ten percent (10%) of the Company’s equity securities as of the date hereof. By executing this Agreement, each Purchaser acknowledges that it has read this Section 9.10 and that it has considered, with legal counsel, any potential conflicts of interest which may arise as a result of an investor serving as Collateral Agent prior to making the decision to invest in the Securities.
[Signature Page to StationDigital Corporation Securities Purchase Agreement Follows]
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[Company Signature Page to StationDigital Corporation Securities Purchase Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
STATIONDIGITAL CORPORATION
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Chief Executive Officer |
[Purchaser Signature Pages to StationDigital Corporation Securities Purchase Agreement Follow]
[Purchaser Signature Page to StationDigital Corporation Securities Purchase Agreement]
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: | |
Xxxxx Xxxxxxx | |
Signature of Authorized Signatory of Purchaser: |
|
/s/ Xxxxx Xxxxxxx | |
Name of Authorized Signatory: |
|
Title of Authorized Signatory: |
|
Email Address of Purchaser: |
|
Facsimile Number of Purchaser: |
|
Address for Notice of Purchaser: | |
Address for Delivery of Securities for Purchaser (if not same as address for notice): |
_______________________________________________
Subscription Amount: ______$75,000____________________________________
SSN/EIN Number: [PLEASE PROVIDE THIS UNDER SEPARATE COVER]
[Collateral Agent Acknowledgment Page to StationDigital Corporation Securities Purchase Agreement]
ACKNOWLEDGED AND AGREED BY
(solely for purposes of Section 9):
STEEL PIER CAPITAL ADVISORS, LLC,
as Collateral Agent
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Manager |
Address for Notices:
Company Disclosure Schedules
Schedule 3.1 – List of Subsidiaries
Schedule 3.5 – Capitalization
Schedule 3.7 – Material Contracts
Schedule 3.17 – Financial Statements
Schedule 3.26 – Use of Proceeds
Schedule 3.28 – Intellectual Property Rights