SECURITIES PURCHASE AGREEMENT
THIS SECURITIES
PURCHASE AGREEMENT
(“Agreement”)
is
made and entered into as of February __, 2007, between Celsia Technologies,
Inc., a Nevada corporation, (the “Company”),
and
the purchaser set forth on the signature page hereto (“Purchaser”).
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the form of Secured Convertible Promissory Note attached hereto
as
Exhibit
A.
WHEREAS,
the
Company desires to sell and issue Secured Convertible Promissory Notes in
the
aggregate principal amount of not less than Two Hundred Fifty Thousand Dollars
($250,000) and not more than One Million Dollars ($1,000,000) substantially
in
the form attached hereto as Exhibit
A
(individually, a “Convertible
Note,”
and
collectively, the “Convertible
Notes”),
on
the terms and conditions set forth herein;
WHEREAS,
the
Convertible Notes will be sold in multiple closings to purchasers (collectively
with the Purchaser hereunder, the “Purchasers”)
entering into Securities Purchase Agreements with the Company in substantially
the form of this Agreement (collectively with this Agreement, the “Purchase
Agreements”).
WHEREAS,
the
Convertible Notes will be convertible into securities of the Company issuable
in
connection with a Qualified Debenture Financing (as such term is defined
in the
Convertible Note).
NOW,
THEREFORE,
in
consideration of the foregoing premises and the covenants contained herein
and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF CONVERTIBLE NOTES
Section
1.1 Issuance
of Convertible Notes.
Upon
the following terms and conditions, the Company shall issue and sell to the
Purchaser under this Agreement, and the Purchaser shall purchase from the
Company, a Convertible Note in the principal amount set forth on the signature
page hereto.
Section
1.2 Purchase
Price.
The
purchase price for the Convertible Note to be acquired by the Purchaser shall
equal the principal amount of such Convertible Note, and is referred to herein
as the “Purchase
Price.”
The
total aggregate purchase price for all Convertible Notes sold to all Purchasers
shall be not less than Two Hundred Fifty Thousand Dollars ($250,000) and
not
more than One Million Dollars ($1,000,000).
Section
1.3 The
Closing.
(a) Timing.
The
purchase and sale of the Convertible Notes subject to this Agreement shall
take
place no later than February 20, 2007, or on such other date as the Purchaser
and the Company may agree upon (the “Closing
Date”).
(b) Form
of Payment and Closing.
At the
Closing, the Company shall deliver the Convertible Note purchased hereunder
to
the Purchaser, registered in the name of the Purchaser,
and
Purchaser shall deliver the Purchase Price for the Convertible
Note
by
wire transfer hereunder to an account designated in writing by the Company.
In
addition, each party shall deliver all documents, instruments and writings
required to be delivered by such party pursuant to this Agreement (collectively,
the “Closing
Documents”)
at or
prior to the Closing. Upon delivery and execution of the Closing Documents,
the
Convertible
Notes
will be fully owned
and
paid for by the Purchaser as of the Closing Date.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.1 Representations
and Warranties of the Company.
The
Company hereby makes the representations and warranties set forth below to
the
Purchaser as of the date hereof and the Closing Date.
(a) Corporate
Status.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of Nevada, and has all requisite corporate power and authority
to
own and lease its properties, to carry on its business as currently conducted,
to execute and deliver this Agreement and to carry out the transactions
contemplated by this Agreement. The Company is duly licensed or qualified
to do
business as a foreign corporation in each jurisdiction in which the conduct
of
its business or ownership or leasing of is properties requires it to be so
qualified, except where the failure to be so qualified would not have a material
adverse effect on the business, assets, financial condition or results of
operations of the Company or its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(b) Capital
Stock.
Other
than certain grants and awards issued pursuant to the Company’s stock incentive
plan subsequent to September 30, 2006, the authorized, issued and outstanding
capital stock of the Company prior to the consummation of the transactions
contemplated hereby is as set forth in the filings of the Company pursuant
to
the Securities Exchange Act of 1934, as amended (the “1934
Act”)
and
the Securities Act of 1933, as amended (the “1933
Act”)
filed
no later than five (5) days prior to the Closing (the “SEC
filings”).
(c) Options.
Except
as disclosed in the SEC filings or Supplemental Information (as defined in
Section 2.2(b)), and other than the Convertible Notes and certain grants
and awards issued pursuant to the Company’s stock incentive plan subsequent to
September 30, 2006, there are not, nor shall there be immediately prior to
the
Closing, any outstanding warrants, options, agreements, convertible or
exchangeable securities, preemptive rights to subscribe for or other commitments
pursuant to which the Company or any of its Subsidiaries is, or may become,
obligated to issue any shares of its capital stock or other securities of
the
Company and this Agreement.
(d) Financial
Statements.
The
historical financial statements included in the SEC filings are: (i) in
accordance with all books, records and accounts of the Company; (ii) are
true,
correct and complete in all material respects; and (iii) have been prepared
in
accordance with generally accepted accounting principles.
2
(e) Title
to Assets.
Except
as disclosed in the SEC filings or Supplemental Information, each of the
Company
and its subsidiaries has good and marketable title to their respective
properties and assets, free and clear of all liens, charges, encumbrances
or
restrictions (“Liens”),
except Liens for the payment of current taxes which are not yet delinquent,
Liens which arise in the ordinary course of business and Liens which will
not
result in a Material Adverse Effect. To the Company’s knowledge, all of the
leases and subleases under which the Company or any subsidiary is the lessor
or
sublessor of properties or assets or under which the Company or any subsidiary
holds properties or assets as lessee or sublessee are in full force and effect,
and to the Company’s knowledge, neither the Company (nor any subsidiary) is in
default in any material respect with respect to any of the terms or provisions
of any of such leases or subleases, and to the Company’s knowledge, no material
claim has been asserted by anyone adverse to rights of the Company or any
subsidiary as lessor, sublessor, lessee or sublessee under any of the leases
or
subleases mentioned above, or affecting or questioning the right of the Company
or any subsidiary to continued possession of the leased or subleased premises
or
assets under any such lease or sublease in each case other than any
non-effectiveness, default or claim which could not be reasonably expected
to
cause a Material Adverse Effect. The Company and each subsidiary owns or
leases
all such properties as are necessary to their respective operations as now
conducted.
(f) Legal
Matters.
Except
as set forth in the SEC filings or Supplemental Information, there is no
action,
suit, investigation, inquiry or similar governmental proceeding, claim or
proceeding at law or in equity by or before any arbitrator, governmental
instrumentality or other agency now pending or, to the knowledge of any of
the
Company or its subsidiaries, threatened against the Company or any subsidiary
or, to the knowledge of the Company, any officer or director of the Company
or
any subsidiary (or basis therefor known to the Company or any subsidiary),
the
adverse outcome of which would have a Material Adverse Effect or that seeks
to
prevent, enjoin, alter or delay the transactions contemplated hereby. Neither
the Company nor any subsidiary is subject to any judgment, order, writ,
injunction or decree of any federal, state, municipal or other governmental
instrumentality, commission, board, bureau, agency or instrumentality, domestic
or foreign or self-regulatory organization that seeks to prevent, enjoin,
alter
or delay the transactions contemplated by this Agreement.
(g) Contracts.
Except
for the agreements described in Section 2.1(g) of Schedule
A
hereto,
to the Company’s knowledge, neither the Company nor any of the subsidiaries is
in breach of, or in default under, any material term or provision of any
indenture, mortgage, deed of trust, lease, note, loan or credit agreement
or any
other agreement or instrument evidencing an obligation for borrowed money,
or
any other agreement or instrument to which it is a party or by which it or
any
of its properties may be bound or affected, other than any default or breach
which could not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of the subsidiaries is in violation of (i) any
provision of its charter or Bylaws or (ii) any franchise, license, permit,
judgment, decree or order, or any statute, rule or regulation that, in the
case
of this clause (ii), would, individually or in the aggregate, have a Material
Adverse Effect.
(h) Taxes.
Each of
the Company and its subsidiaries has filed all U.S. federal, state, local
and
foreign tax returns which are required to be filed by each of them and all
such
returns are true and correct in all material respects, except for such failures
to file which could not reasonably be expected to have a Material Adverse
Effect. The Company and each subsidiary has paid all taxes pursuant to such
returns or pursuant to any assessments received by any of them or by which
any
of them are obligated to withhold from amounts owing to any employee, creditor
or third party. The Company and each subsidiary has properly accrued all
taxes
required to be accrued and/or paid, except where the failure to accrue would
not
have a Material Adverse Effect. To the knowledge of the Company, the tax
returns
of the Company and its subsidiaries are not currently being audited by any
state, local or federal authorities. Neither the Company nor any subsidiary
has
waived any statute of limitations with respect to taxes or agreed to any
extension of time with respect to any tax assessment or deficiency. The Company
has set aside on its books adequate provision for the payment of any unpaid
taxes.
3
(i) Noncompliance;
Licenses and Permits.
Neither
the Company nor any subsidiary has received notice of any violation of or
noncompliance with any federal, state, local or foreign, laws, ordinances,
regulations, and orders applicable to its business, which has not been cured,
the violation of, or noncompliance with, which would have a Material Adverse
Effect. To the knowledge of the Company, none of the Company or any of its
directors, officers, agents or employees (in their capacities as such) has
violated any provision of the Foreign Corrupt Practices Act of 1977, as amended.
To the knowledge of the Company, the Company and each subsidiary has all
licenses required by every federal, state and local government or regulatory
body for the operation of its business as currently conducted and the use
of its
properties, except where the failure to be so licensed would not have a Material
Adverse Effect. To the knowledge of the Company, all material licenses held
by
the Company are in full force and effect and no violations are or have been
recorded in respect of any license and no proceeding is pending or threatened
to
revoke, modify or limit any thereof.
(j) Authorization;
Enforcement.
To the
extent required, each of the Closing Documents (as defined herein) have been
duly executed and delivered by the Company and the execution, delivery and
performance by the Company of the Closing Documents, and the issuance of
the
securities pursuant to the terms of this Agreement, have been duly authorized
by
the Company’s board of directors and no further consent or authorization of its
board of directors or its stockholders is required by the Company and constitute
the legal, valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as enforceability may be limited
by general equitable principles, bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally.
(k) Consents
and Approvals.
Except
as set forth in the SEC filings or Supplemental Information, and except for
any
state and federal securities filings, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or
filing with, or notice to, any court, federal, state or local governmental
authority or regulatory or self regulatory agency or authority or other person
on the part of the Company or any Subsidiary is required in connection with
the
issuance of the securities or the consummation of the other transactions
contemplated by this Agreement.
(l) Bankruptcy.
Neither
the Company nor any subsidiary has taken any steps to seek protection pursuant
to any bankruptcy or reorganization law, nor does the Company nor any subsidiary
have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or reorganization proceedings or any actual knowledge
of
any fact which would reasonably lead a creditor to do so.
4
(m) Labor
Relations.
Except
as set forth in Section 2.1(m) of Schedule
A
hereto,
no material labor dispute exists or, to the knowledge of the Company, is
threatened with respect to any of the employees of the Company or its
subsidiaries.
(n) Brokers.
Other
than as described in Section 2.1(n) of Schedule
A
hereto,
the Company has taken no action which would give rise to any claim by any
person
for brokerage commissions, finder’s fees or similar payments by the Company or
the Purchaser relating to this Agreement or the transactions contemplated
hereby.
Section
2.2 Representations
and Warranties of the Purchasers.
Each
Purchaser hereby makes the following representations and warranties to the
Company as of the date hereof and the Closing Date:
(a) Accredited
Investor Status; Sophisticated Purchaser.
The
Purchaser is an “accredited investor” as that term is defined in Rule 501 (a) of
Regulation D under the 1933 Act. The Purchaser and each of the members,
stockholders or unitholders of the Purchaser (collectively, the “Members”)
has
such knowledge and experience in financial and business matters that they
are
capable of evaluating the merits and risks of the purchase of the Convertible
Note. The Purchaser is not registered as a broker or dealer under Section
15 (a)
of the 1934 Act, affiliated with any broker or dealer registered under Section
15(a) of the 1934 Act, or a member of the National Association of Securities
Dealers, Inc.
(b) Information.
The
Purchaser, the Members and their respective advisors, if any, have been
furnished with certain material relating to the business, finances and
operations of the Company and the offer and sale of the Convertible Note
(the
“Supplemental
Information”).
The
Purchaser, the Members and their respective advisors have reviewed the contents
of the Supplemental Information and SEC Filings, including, without limitation,
the risk factors described therein. The Purchaser, the Members and their
respective advisors, if any, have been afforded the opportunity to ask questions
of the Company. In determining whether to enter into this Agreement and purchase
the Convertible Note, the Purchaser and the Members have relied solely on
the
representations and warranties relating to the Company contained in this
Agreement and the Convertible Note. The Members and the Purchaser understand
that the Purchaser’s purchase of the Convertible Note involves
a high degree of risk. The Purchaser and the Members have sought such
accounting, legal and tax advice as they have considered necessary to make
an
informed investment decision with respect to the Purchaser’s acquisition of the
Convertible
Note.
(c) No
Governmental Review.
The
Purchaser understands that no federal or state agency or any other government
or
governmental agency has passed on or made any recommendation or endorsement
of
the Convertible Note or the fairness or suitability of the investment in
the
Convertible Note nor have such authorities passed upon or endorsed the merits
thereof.
5
(d) Authorization;
Enforcement.
This
Agreement has been duly and validly authorized, executed and delivered on
behalf
of the Purchaser and is a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, subject as
to
enforceability to general principles of equity and to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies. The Purchaser has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement
and
each other agreement entered into by the parties hereto in connection with
the
transactions contemplated by this Agreement.
(e) No
Conflicts.
The
execution, delivery and performance of this Agreement by the Purchaser and
the
consummation by the Purchaser of the transactions contemplated hereby and
thereby will not (i) result in a violation of the articles of organization,
limited liability company or operating agreement, by-laws or other documents
of
organization of the Purchaser, (ii) conflict with, or constitute a default
(or
an event which with notice or lapse of time or both would become a default)
under, or give others any rights of termination, amendment, acceleration
or
cancellation of, any agreement, indenture or instrument to which the Purchaser
is bound, or (iii) result in a violation of any law, rule, regulation or
decree
applicable to the Purchaser.
(f) Investment
Representation.
The
Purchaser is purchasing the Convertible Note for its own account and not
with a
view to distribution in violation of any securities laws. The Purchaser has
been
advised and understands that the Convertible Note has been registered under
the
1933 Act or under the “blue sky” laws of any jurisdiction and may be resold only
if registered pursuant to the provisions of the 1933 Act and “blue sky” laws, or
if an exemption from registration is available.
The
Purchaser has been advised and understands that the Company, in issuing the
Convertible
Note,
is
relying upon, among other things, the representations and warranties of the
Purchaser contained in this Section 2.2 in concluding that such issuance
is a
“private offering” and is exempt from the registration provisions of the 1933
Act.
(g) Rule
144.
The
Purchaser understands that there is no public trading market for the Convertible
Notes, that none is expected to develop, and that the Convertible Notes must
be
held indefinitely unless and until such Convertible Notes are registered
under
the 1933 Act or an exemption from registration is available. The Purchaser
has
been advised or is aware of the provisions of Rule 144 promulgated under
the
1933 Act.
(h) Brokers.
Other
than as described in Section 2.1(n) of Schedule
A
hereto,
the Purchaser has taken no action which would give rise to any claim by any
person for brokerage commissions, finder’s fees or similar payments by the
Company or the Purchaser relating to this Agreement or the transactions
contemplated hereby.
(i) Reliance
by the Company.
The
Purchaser understands that the Convertible Notes are being offered and sold
in
reliance on a transactional exemption from the registration requirements
of
Federal and state securities laws and that the Company is relying upon the
truth
and accuracy of the representations, warranties, agreements, acknowledgments
and
understandings of the Purchaser set forth herein in order to determine the
applicability of such exemptions and the suitability of the Purchaser to
acquire
the Convertible Note.
6
(j) Purchaser
Actions.
The
Purchaser represents that it will not take any affirmative action to cause
an
event of default under the Convertible Note other than through the exercise
of
rights granted to the Purchaser pursuant to the terms of this Agreement,
the
Convertible Note, the Security Agreement (as defined herein) or the Stock
Transfer Agreement (as defined herein).
ARTICLE
III
COVENANTS
Section
3.1 Securities
Compliance.
The
Company shall take all necessary action and proceedings as may be required
and
permitted by applicable law, rule and regulation, for the legal and valid
issuance of the Convertible Notes hereunder including, if required, the filing
of a Form D with the U.S. Securities and Exchange Commission; provided, however,
that the Company shall not be required in connection therewith to register
such
Convertible Notes with any federal or state agency or to register or qualify
as
a foreign corporation in any jurisdiction where it is not now so qualified
or to
take any action that would subject it to service of process in suits or
taxation, in each case, in any jurisdiction where it is not now so
subject.
Section
3.2 Supplemental
Information.
To the
extent any Supplemental Information constitutes material non-public information
regarding the Company, the Company shall take such action as necessary for such
information to cease to constitute material non-public information regarding
the
Company no later than four (4) months following the Closing (including, without
limitation, the public disclosure of such information).
Section
3.3 Reasonable
Best Efforts.
The
parties shall use their reasonable best efforts to satisfy timely each of
the
conditions described in Article IV of this Agreement.
Section
3.4 Material
Changes.
On or
before the Closing Date, the Company shall forthwith notify the Purchaser
of any
material change affecting any of its representations, warranties, undertakings
and indemnity at any time prior to payment being made to the Company on the
Closing Date.
ARTICLE
IV
CONDITIONS
TO CLOSINGS
Section
4.1 Conditions
Precedent to the Obligations of the Company.
The
obligation hereunder of the Company to issue and/or sell the Convertible
Note to
the Purchaser at the Closing is subject to the satisfaction, at or before
the
Closing, of each of the applicable conditions set forth below. These conditions
are for the Company’s sole benefit and may be waived by the Company at any time
in its sole discretion.
7
(a) Accuracy
of the Purchaser’s Representations and Warranties.
The
representations and warranties of the Purchaser will be true and correct
as of
the date when made and as of the Closing Date, as though made at that
time.
(b) Performance
by the Purchaser.
The
Purchaser shall have performed all agreements and satisfied all conditions
required to be performed or satisfied by the Purchaser at or prior to the
Closing, including full payment of the Purchase Price to the Company as provided
herein.
(c) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction
shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement or the Convertible
Notes.
Section
4.2 Conditions
Precedent to the Obligation of the Purchaser.
The
obligation hereunder of the Purchaser to acquire and pay for the Convertible
Note at the Closing is subject to the satisfaction, at or before the Closing,
of
each of the applicable conditions set forth below. These conditions are for
the
Purchaser’s benefit and may be waived by the Purchaser at any time in its sole
discretion.
(a) Accuracy
of the Company’s Representations and Warranties.
The
representations and warranties of the Company shall be true and correct in
all
material respects as of the date when made and as of the Closing Date as
though
made at that time (except for representations
and warranties as of an earlier date, which shall be true and correct in
all
material respects as of such date).
(b) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction
shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement or the Convertible Notes.
(c) Security
Agreement.
A
Security Agreement in substantially the form attached hereto as Exhibit
B
dated as
of February 20, 2007 (the “Security
Agreement”)
shall
have been executed and delivered by the Company.
(d) Stock
Transfer Agreement.
A Stock
Transfer Agreement in substantially the form attached hereto as Exhibit
C
dated as
of February 20, 2007 (the “Stock
Transfer Agreement”)
shall
have been executed and delivered by the Chief Executive Officer and Chief
Operating Officer of the Company.
(e) Convertible Note.
The
Convertible Note, in the principal amount of the Purchase Price paid by the
Purchaser, shall have been executed and delivered by the Company.
(f) Legal
Opinion.
The
Purchaser shall have received the opinion of legal counsel to the Company
in the
form attached hereto as Exhibit
D
(the
“Legal
Opinion”)
or, in
the event the Legal Opinion shall have been previously delivered in connection
with an earlier sale of a Convertible Note pursuant to a Purchase Agreement,
a
letter indicating that the Purchaser may rely on such previously issued Legal
Opinion.
8
ARTICLE
V
GOVERNING
LAW; MISCELLANEOUS
Section
5.1 Governing
Law.
ALL
ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS CONVERTIBLE NOTE SHALL BE GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ANY
CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE
OF
NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK- EACH PARTY HERETO
IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.
Section
5.2 Submission
to Jurisdiction.
Any
legal action or proceeding with respect to this Agreement shall be brought
exclusively in the courts of the State of New York or of the United States
of
America sitting in New York County, and, by execution and delivery of this
Agreement, each of the parties hereto hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts.
Section
5.3 Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective
when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and
shall
be binding upon the
signatory thereto with the same force and effect as if the signature were
an
original, not a facsimile signature.
Section
5.4 Headings.
The
headings of this Agreement are for convenience of reference and shall not
form
part of, or affect the interpretation of, this Agreement.
Section
5.5 Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction
or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
Section
5.6 Entire
Agreement: Amendments: Waivers.
This
Agreement supersedes all other prior oral or written agreements between the
Purchaser, the Company, their affiliates and persons acting on their behalf
with
respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set
forth
herein or therein, neither the Company nor the Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be amended other than by an instrument
in
writing signed by the Company and the Required Majority (as defined in the
Convertible Note), and upon such approval such amendment shall be binding
on all
Purchasers and Purchase Agreements. No provision hereof may be waived other
than
by an instrument in writing signed by the party against whom enforcement
is
sought.
9
Section
5.7 Notices.
Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing, must be delivered
by
(i) courier, mail or hand delivery or
(ii)
facsimile, and will be deemed to have been delivered on the first business
day
following receipt. The addresses and facsimile numbers for such communications
shall be:
If
to the
Company:
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
With
a
copy to:
DLA
Piper
US LLP
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxx, Esq.
Facsimile
(000) 000-0000
If
to the
Purchaser, to the address listed on the signature page hereto.
With
a
copy to:
Grushko
& Xxxxxxx, P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
Each
party shall provide five (5) days prior written notice to the other party
of any
change in address, telephone number or facsimile number. Written confirmation
of
receipt (A) given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the sender’s
facsimile machine containing the time, date, recipient facsimile number and
an
image of the first page of such transmission or (C) provided by a nationally
recognized overnight delivery service, shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight
delivery service in accordance with clause (i), (it) or (in) above,
respectively.
Section
5.8 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective permitted successors and assigns; provided, however, that
a
Purchaser may assign some or all of its rights hereunder only to an assignee
of
such Purchaser’s Convertible Note (in accordance with the terms and subject to
the conditions of such Convertible Note); provided, however, that any such
assignment shall not release the Purchaser from its obligations hereunder
unless
such obligations are assumed by such assignee and the Company has consented
to
such assignment and assumption in the form and substance reasonably satisfactory
to the Company.
10
Section
5.9 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other person.
Section
5.10 Survival.
The
representations, warranties and agreements of the Company and the Purchaser
contained in the Agreement shall survive so long as the indebtedness under
the
Convertible Note is outstanding.
Section
5.11 Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
Section
5.12 No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
[Signature
Page Follows]
11
IN
WITNESS WHEREOF,
the
parties hereto have caused this Securities Purchase Agreement to be duly
executed as of the date and year first above written.
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COMPANY:
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| By: | ||
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Name:_________________________________
Title:__________________________________
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Signatures
of Purchasers on following page(s)
COUNTERPART
SIGNATURE PAGE
DATED
FEBRUARY __, 2007
AND
THE
PURCHASERS IDENTIFIED THEREIN
The
undersigned hereby executes and delivers the Securities Purchase Agreement
to
which this Signature Page is attached, which, together with all counterparts
of
the Securities Purchase Agreement and Signature Pages of the Company and
other
“Purchasers” under the Securities Purchase Agreement, shall constitute one and
the same document in accordance with the terms of the Securities Purchase
Agreement.
PURCHASER:_______________________________
By:_______________________________________
Name:_____________________________________
Title:______________________________________
Principal
Convertible Note
Amount:_____________
Address:___________________________________
___________________________________
___________________________________
Facsimile:__________________________________
