SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
This
Securities Purchase Agreement (“Agreement”) is made and
entered into in this ___ day of ______2018 (“Effective
Date”), by and between Youngevity International, Inc., a
Delaware corporation, its successors and assigns (the
“Company”), and _________
(“Investor”).
RECITALS
WHEREAS, the
Company is in need of capital and is seeking to raise up to
$3,000,000 in a limited private offering of common stock of the Company, par value
$0.001 per share (the “Common Stock”), to certain
existing shareholders of the Company (the “Offering”);
and
WHEREAS, Investor
has agreed to purchase securities of the Company for
______ (all
securities to be purchased hereunder, including the Purchased
Shares, Warrants, Warrant Shares, Advisory Shares and True-Up
Shares, being referred to herein as, “Securities”),
subject to the terms and conditions hereof.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the
sufficiency of which is acknowledged by Investor and Company (each
“party” and, collectively, “parties”), the
parties hereby agree as follows:
1. PURCHASE AND SALE
OF SECURITIES. Upon the terms and subject to the conditions
set forth in this Agreement, and in reliance on the representations
and warranties of the Investor and Company contained herein, the
Company agrees to sell to the Investor, and the Investor agrees to
purchase from the Company, ____ shares of the Company’s
Common Stock (the “Purchased Shares”), free and clear
of any and all liens, claims, options, charges, pledges, security
interests, deeds of trust, voting agreements, shareholder
agreements, voting trusts, encumbrances, or rights, for $4.75 per
share (“Purchase Price”) or $______ total. The Shares
will be purchased in two equal tranches of ______ Shares for $_____
each, according to the terms hereof. The closing of the first
tranche (“First Closing”) will occur within three days
from the Effective Date; the closing of the second tranche
(“Second Closing”) will occur within three days from
the effectiveness of the Company’s Registration Statement
(defined below) with the United States Securities Exchange
Commission (“SEC”). Investor’s obligation, to
purchase the second tranche of Shares pursuant to the terms of this
Agreement at the Second Closing is irrevocable.
2. WARRANTS.
Upon the First Closing, the Company shall issue to Investor a
warrant, substantially in the form attached hereto as Exhibit A
(the “Warrant”), to purchase _____ shares of the
Company’s common stock (the “Warrant Shares”) at
an exercise price of $4.75 per share, adjusted to the True-up Price
(defined below) in accordance with the terms of the Warrant. The
Warrant shall be exercisable for a period of three years from the
grant date and include a cashless exercise feature and
ant-dilution, full ratchet terms for two years.
3. ADVISORY
FEE. The Company
agrees to issue Investor _____ shares of its common stock as an
advisory fee (the “Advisory Shares”); payable in equal
tranches of _____ shares upon both the First Closing and the Second
Closing.
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4. TRUE-UP
SHARES. In the
event that the average of the 15 lowest closing prices for the
Company’s common stock on NASDAQ or other primary trading
market for the Company’s common stock (the average of such
lowest closing prices being herein referred to, the “True-up
Price”) during the period beginning on the Effective Date and
ending on the date 90 days from the effective date of the
Registration Statement (the “Subsequent Pricing
Period”) is less than $4.75 per share, then the Company will
issue the Investor additional shares of the Company’s common
stock (the “True-up Shares”) within three days from the
expiration of the Subsequent Pricing Period, according to the
following formula: X= [$_______- (A*B)]/B, where:
X=
number of True-up Shares to be issued
A= the
number of Purchased Shares acquired by Investor
B= the
True-up Price
Notwithstanding the foregoing, in no event may the total number of
shares issued under this Agreement, including the Purchased Shares,
Warrant Shares, Advisory Shares and True-up Shares issued by the
Company exceed ___%(1) of the
Company’s issued and outstanding common stock as of the
Effective Date, as listed below in Section 9(k).
5. ALLOWANCE FOR LEGAL
FEE. A $____
allowance for Investor’s legal fees shall be paid by the
Company and deducted from Investor’s first $_____
payment.
6. PAYMENT
TERMS.
a. The
Investor will pay the Company the Purchase Price of $_____
($____-$_____) upon the First Closing.
b. The
Investor will pay the Company the Purchase Price of $_______ upon
the Second Closing.
7. REGISTRATION
RIGHTS. The Company shall prepare and file with the SEC a
registration statement on Form S-3 or S-1 (the “Registration
Statement”) to cover Investor’s resale of the Purchased
Shares, Warrant Shares, Advisory Shares and True-up Shares pursuant
to the Registration Rights Agreement in Exhibit B hereto
(“Registration Rights Agreement”). Investor
acknowledges and agrees that the rights afforded to investors in
the Offering who are a party to the Registration Rights Agreement
shall be applied in all cases on a pro rata basis among
the investors in the Offering, including, without limitation, the
Investor.
8. CLOSING.
The
Company will deliver to Investor the following on or before the
First Closing:
a. this Agreement
executed by the Company;
b. the Warrants duly
executed and issued by the Company;
c. certificate(s)
representing the first tranche of Advisory Shares and Purchased
Shares;
d. a duly executed
copy of the Registration Rights Agreement;
e. confirmation of an
effective irrevocable letter agreement with the Company’s
transfer agent, in the form included herewith as Exhibit C (the
“Letter Agreement”), directing the transfer to reserve
and issue to Investor Securities pursuant to the terms of this
Agreement; and
f. an
officer’s certificate certifying that the Company’s
representations in Section 9 are true and correct.
1.
Calculated based on 2.9% for every $1,000,000
invested.
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Investor will
deliver to the Company the following on or before the First
Closing:
a. this
Agreement executed by the Investor;
b. a
duly executed copy of the Registration Rights
Agreement;
c. the
Purchase Price for the first tranche of Purchased
Shares.
The
Company will deliver to Investor the following on or before the
Second Closing:
a. certificate(s)
representing the second tranche of Advisory Shares and Purchased
Shares; and
b.
an officer’s certificate certifying that the Company’s
representations in Section 9 are true and correct.
Investor will
deliver to the Company the following on or before the Second
Closing:
a. the
Purchase Price for the second tranche of Purchased
Shares.
9. REPRESENTATIONS AND
WARRANTIES BY THE COMPANY. In order to induce Investor to
enter into this Agreement and to purchase the Securities provided
for herein, Company represents and warrants to Investor as follows,
which representations and warranties shall also be true and correct
as of the First Closing and Second Closing:
a. Organization,
Good Standing and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws
of the State of Delaware and has the requisite corporate power to
own, lease and operate its properties and assets and to conduct its
business as it is now being conducted.
b. Non-Shell
Status. The Company is not now nor has ever been a
“shell company” as that term is defined in Rule 405 of
the Securities Act.
c. Authorization;
Enforcement. The Company has the requisite corporate power
and authority to enter into and perform this Agreement, the
Warrant, the Registration Rights Agreement and the Letter Agreement
(all such documents together with all amendments, schedules,
exhibits, annexes, supplements and related items, to each such
document shall hereinafter be collectively referred to as, the
“Transaction Documents”). The execution, delivery and
performance of the Transaction Documents by the Company, and the
consummation by it of the transactions contemplated in, have been
duly and validly authorized by all necessary corporate action. The
Transaction Documents, when executed and delivered, will constitute
valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship,
receivership or similar laws relating to, or affecting generally
the enforcement of, creditor's rights and remedies or by other
equitable principles of general application.
d. Disclosure.
None of the Transaction Documents nor any other document,
certificate or instrument furnished to the Investor by or on behalf
of the Company in connection with the transactions contemplated by
the Transaction Documents contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements made herein or therein, in the light of the
circumstances under which they were made herein or therein, not
misleading.
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e. Adequate
Shares. The Company will at all times have authorized and
reserved a sufficient number of shares of Common Stock to provide
for the exercise of the rights represented by this Agreement and
the respective Warrants Agreement. The initial reserve will be set
at 543,859 shares of common stock. Additional reserves shall be
reserved according to the Letter Agreement with the Company’s
transfer agent.
f. Periodic
Filings. The Company at all times will remain current in its
reporting requirements with the SEC under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) including
maintaining XBRL financial information on the Company’s
corporate website. All information contained in the Company’s
period filings with the SEC is true and correct to the best of the
Company’s knowledge.
g. Valid
Issuance. All Securities to be issued pursuant to this
Agreement, when issued, shall be duly and validly issued, fully
paid, and nonassessable, and will be transferred free of liens,
encumbrances and restrictions on transfer other than
(a) restrictions on transfer under this Agreement and under
applicable state and federal securities laws, and
(b) restrictions on transfer under the Company’s
governing documents.
h. Legal
Proceedings. There is no action, suit, proceeding,
arbitration, claim, investigation or inquiry pending or, to the
Company’s knowledge, threatened by or before any governmental
body against the Company which, individually or in the aggregate,
would reasonably be expected to have a material adverse effect on
the Company, nor are there any orders, writs, injunctions,
judgments or decrees outstanding of any court or government agency
or instrumentality and binding upon the Company or its affiliates
that would reasonably be expected to have a similar material
adverse effect on the Company or its operations.
i. No
Conflicts. Neither the execution and delivery of this
Agreement nor the fulfillment of or compliance with the terms and
provisions hereof, nor the issuance of the Securities, will
conflict with, or result in a breach or violation of any of the
terms, conditions or provisions of, or constitute a default under,
any contract, agreement, mortgage, indenture, lease, instrument,
order, judgment, statute, law, rule or regulation to which the
Company is subject.
j. Non-public
Information. The Company has not disclosed, and will not
disclose while Investor owns any Securities, to Investor any
material, non-public information of the Company.
k. Capitalization.
The Company currently has 50,000,000 common and 5,000,000 preferred
shares of stock authorized; and 21,561,217 common shares and
545,522 preferred shares (161,135 Series A Preferred, 315,967
Series B Preferred and 68,420 Series C Preferred) are issued and
outstanding as of the date hereof. All of such outstanding shares
of capital stock are, or upon issuance will be, duly authorized,
validly issued, fully paid and non-assessable. No shares of capital
stock of the Company are subject to preemptive rights or any other
similar rights of the shareholders of the Company or any liens or
encumbrances imposed through the actions or failure to act of the
Company. As of the effective date of this Agreement, except as
disclosed to Investor by the Company in Schedule 9(k)(i), there are
no outstanding options, warrants, scrip, rights to subscribe for,
puts, calls, rights of first refusal, agreements, understandings,
claims or other commitments or rights of any character whatsoever
relating to, or securities or rights convertible into or
exchangeable for any shares of capital stock of the Company or any
of its Subsidiaries, or arrangements by which the Company or any of
its Subsidiaries is or may become bound to issue additional shares
of capital stock of the Company or any of its Subsidiaries, (ii)
there are no agreements or arrangements under which the Company or
any of its Subsidiaries is obligated to register the sale of any of
its or their securities under the 1933 Act, and (iii) there are no
anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in any agreement providing
rights to security holders) that will be triggered by the issuance
of the Securities. The Company has provided Investor with true and
correct copies of the Company’s Certificate of Incorporation
as in effect on the date hereof (“Certificate of
Incorporation”) and the Company’s By-laws, as in effect
on the date hereof (the “By-laws”).
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l.
Acknowledgment of
Dilution. The Company understands and acknowledges the
potentially dilutive effect to its common stock upon the issuance
of the True-up Shares and Warrant Shares. The Company further
acknowledges that its obligation to issue True-up Shares and
Warrant Shares in accordance with this Agreement, is absolute and
unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other shareholders of the
Company.
m.
Absence of Certain
Changes. Since its last periodic report filed with the SEC,
there has been no material adverse change and no material adverse
development in the assets, liabilities, business, properties,
operations, financial condition, results of operations or prospects
of the Company or any of its subsidiaries.
n.
Patents, Copyrights,
etc. The Company and each of its subsidiaries owns or
possesses the requisite licenses or rights to use all patents,
patent applications, patent rights, inventions, know-how, trade
secrets, trademarks, trademark applications, service marks, service
names, trade names and copyrights (“Intellectual
Property”) necessary to enable it to conduct its business as
now operated (and, as presently contemplated to be operated in the
future). There is no claim or action by any person pertaining to,
or proceeding pending, or to the Company’s knowledge
threatened, which challenges the right of the Company or of a
Subsidiary with respect to any Intellectual Property necessary to
enable it to conduct its business as now operated (and, as
presently contemplated to be operated in the future); to the best
of the Company’s knowledge, the Company’s or its
subsidiaries’ current and intended products, services and
processes do not infringe on any Intellectual Property or other
rights held by any person; and the Company is unaware of any facts
or circumstances which might give rise to any of the foregoing. The
Company and each of its subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of their
Intellectual Property.
o.
Tax Status. The
Company and each of its subsidiaries has made or filed all federal,
state and foreign income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject
(unless and only to the extent that the Company and each of its
Subsidiaries has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes) and
has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in
good faith and has set aside on its books provisions reasonably
adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the
Company know of no basis for any such claim. The Company has not
executed a waiver with respect to the statute of limitations
relating to the assessment or collection of any foreign, federal,
state or local tax. None of the Company’s tax returns is
presently being audited by any taxing authority.
p.
No Brokers. The
Company hereby represents and warrants that it has not hired,
retained or dealt with any broker, finder, consultant, person, firm
or corporation in connection with the negotiation, execution or
delivery of this Agreement or the transactions contemplated
hereunder.
q.
Permits;
Compliance. The Company and each of its subsidiaries is in
possession of all franchises, grants, authorizations, licenses,
permits, easements, variances, exemptions, consents, certificates,
approvals and orders necessary to own, lease and operate its
properties and to carry on its business as it is now being
conducted (collectively, the “Company Permits”), and
there is no action pending or, to the knowledge of the Company,
threatened regarding suspension or cancellation of any of the
Company Permits. Neither the Company nor any of its Subsidiaries is
in conflict with, or in default or violation of, any of the Company
Permits, except for any such conflicts, defaults or violations
which, individually or in the aggregate, would not reasonably be
expected to have a material adverse effect on the
Company.
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r.
Title to Property.
The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to
all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects. Any real property and
facilities held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable
leases.
s.
Internal Accounting
Controls. The Company and each of its subsidiaries maintain
a system of internal accounting controls sufficient, in the
judgment of the Company’s board of directors, 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
generally accepted accounting principles 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.
t.
Foreign Corrupt
Practices. Neither the Company, nor any of its subsidiaries,
nor any director, officer, agent, employee or other person acting
on behalf of the Company or any Subsidiary has, in the course of
his actions for, or on behalf of, the Company, used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977, as amended, or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
u.
Insurance. The
Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be
prudent and customary in the businesses in which the Company and
its Subsidiaries are engaged. Neither the Company nor any such
subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have
a material adverse effect on the Company. Upon written request the
Company will provide to the Investor true and correct copies of all
policies relating to directors’ and officers’ liability
coverage, errors and omissions coverage, and commercial general
liability coverage.
v. Use
of Proceeds. The Company covenants and warrants that it will
use the Purchase Price received from Investor as working capital
and as collateral to hedge its coffee inventory
acquisitions.
10. REPRESENTATIONS AND
WARRANTIES BY INVESTOR. Investor, by its acceptance of this
Agreement, represents and warrants to Company as
follows:
a. Investor
is acquiring the Securities for its own account and not with a view
towards distribution.
b. Investor
is an “accredited investor” within the definition
contained in Rule 501(a) under the Securities Act of 1933, as
amended (the “Securities Act”). Investor has adequate
net worth and means of providing for its current needs and
contingencies and is able to sustain a complete loss of the
investment in the Securities purchase, and has no need for
liquidity in such investment. Investor, itself or through its
officers, employees or agents, has sufficient knowledge and
experience in financial and business matters to be capable of
evaluating the merits and risks of an investment such as an
investment in the Securities, and Investor, either alone or through
its officers, employees or agents, has evaluated the merits and
risks of the investment in the Securities.
c. Investor
acknowledges and agrees that it is purchasing the Securities
hereunder based upon its own inspection, examination and
determination with respect thereto as to all matters, and without
reliance upon any express or implied representations or warranties
of any nature, whether in writing, orally or otherwise, made by or
on behalf of or imputed to the Company.
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d. Investor has no
contract, arrangement or understanding with any broker, finder,
investment bank, financial intermediary or similar agent with
respect to any of the transactions contemplated by this
Agreement.
e. Authorization. This Agreement
has been duly and validly authorized. This Agreement has been duly
executed and delivered on behalf of the Investor, and this
Agreement constitutes a valid and binding agreement of the Investor
enforceable in accordance with its terms.
f. Organization, Good Standing and
Power. The Investor is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Florida and has the requisite corporate power to own, lease and
operate its properties and assets and to conduct its business as it
is now being conducted.
g. No Conflicts. Neither the
execution and delivery of this Agreement nor the fulfillment of or
compliance with the terms and provisions hereof, nor the purchase
of the Securities, will conflict with, or result in a breach or
violation of any of the terms, conditions or provisions of, or
constitute a default under, any contract, agreement, mortgage,
indenture, lease, instrument, order, judgment, statute, law, rule
or regulation to which the Investor is subject.
11. LIQUIDATED
DAMAGES.
a. If (i) the
Registration Statement is not filed with the SEC on or prior to the
date 45 days from the Effective Date, (ii) the Registration
Statement has not been declared effective by the SEC on or prior to
the date 75 days from the Effective Date, or (iii) any
registration statement required by this Agreement is filed and
declared effective by the Commission but shall thereafter cease to
be effective or fail to be usable for its intended purpose (each
such event referred to as a “Registration Default”),
the Company hereby agrees to pay liquidated damages
(“Liquidated Damages”) to Investor in an amount equal
to 1% of the Purchase Price per month, which Liquidated Damages
shall be increased to 5% of the Purchase Price per month if the
Registration Statement is not effective within 150 days from the
Effective Date. Following the cure of all Registration
Defaults relating to any particular registrable Securities,
Liquidated Damages shall cease to
accrue; provided, however, that, if after Liquidated
Damages have ceased to accrue, a different Registration Default
occurs, Liquidated Damages shall again accrue pursuant to the
foregoing provisions. Any amounts due under this Section shall be
paid by the fifth (5th) day of the month
following the month in which they accrued.
b. If the Company
fails to deliver any Securities due Investor hereunder on the date
dictated by this Agreement (each a, “Delivery Date”),
the Company shall pay to Investor in immediately available funds
$500.00 per day past the Delivery Date that the Securities are
actually issued. Any amounts due under this Section shall be paid
by the fifth (5th) day of the month
following the month in which they accrued. The Company agrees that
the right to receive Securities is a valuable right to Investor and
a material consideration of it entering this Agreement. The parties
agree that it would be impracticable and extremely difficult to
ascertain the amount of actual damages caused by a failure of the
Company to timely deliver shares as required hereby. Therefore, the
parties agree that the foregoing liquidated damages provision
represents reasonable compensation for the loss which would be
incurred by the Investor due to any such breach. The parties agree
that this Section is not intended to in any way limit
Investor’s right to pursue other remedies, including actual
damages and/or equitable relief.
c. The Company and
Investor hereto acknowledge and agree that the sums payable as
Liquidated Damages under subsection 11(a) and 11(b) above shall
constitute liquidated damages and not penalties and are in addition
to all other rights of the Holders, including the right to call a
default under the Securities Purchase Agreement. The
parties further acknowledge that (i) the amount of loss or damages
likely to be incurred is incapable or is difficult to precisely
estimate, (ii) the amounts specified in such subsections bear a
reasonable relationship to, and are not plainly or grossly
disproportionate to, the probable loss likely to be incurred in
connection with any failure by the Company to obtain or maintain
the effectiveness of a registration statement, (iii) one of the
reasons for the Company and the Investor reaching an agreement as
to such amounts was the uncertainty and cost of litigation
regarding the question of actual damages, and (iv) the Company and
the Investor are sophisticated business parties and have been
represented by sophisticated and able legal counsel and negotiated
this Agreement at arm’s length.
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12. EVENTS OF
DEFAULT. An event of default will occur if any of the
following circumstances occur (each an “Event of
Default”):
a.
Any representation
or warranty made by Company in this Agreement or in connection with
any Transaction Documents, or in any financial statement, or any
other statement furnished by Company to Investor is untrue in any
material respect at the time when made or becomes
untrue.
b.
Default by Company
in the observance or performance of any other material covenant or
agreement contained in this Agreement or Transaction
Documents.
c.
Filing by Company
of a voluntary petition in bankruptcy seeking reorganization,
arrangement or readjustment of debts, or any other relief under the
Bankruptcy Code as amended or under any other insolvency act or
law, state or federal, now or hereafter existing.
d.
Filing of an
involuntary petition against Company in bankruptcy seeking
reorganization, arrangement or readjustment of debts, or any other
relief under the Bankruptcy Code as amended, or under any other
insolvency act or law, state or federal, now or hereafter existing,
and the continuance thereof for sixty (60) days undismissed,
unbonded or undischarged.
e. Company liquidates,
transfers, sells or assigns substantially its assets or elects to
wind down its operations or dissolve.
f. The Company fails
to stay current in its SEC reporting obligations, including
maintaining XBRL financial information on the Company’s
corporate website.
g. The Company fails
to maintain irrevocable TA instruction on file with the
Company’s transfer agent.
h. The Company fails
to deliver the Investor the Securities by the Delivery
Date.
13. REMEDIES.
(i) There will be no cure period available for the Event of Default
as defined in Section 12(c) and 12(d); (ii) upon the occurrence of
an Event of Default as defined above, and provided such Event of
Default as defined in Section 12(a) and 12(b), and Section 12(e)
through 12(h), has not been cured by the Company within three (3)
business days after the occurrence of such Event of Default
Investor shall have all of the rights
and remedies provided by applicable law and equity. To the
extent permitted by law, Company waives any rights to presentment,
demand, protest, or notice of any kind in connection with this
Agreement, and/or any Warrants. No failure or delay on the part of
Investor in exercising any right, power, or privilege hereunder or
thereunder will preclude any other or further exercise thereof or
the exercise of any other right, power, or privilege. The rights
and remedies provided herein are cumulative and not exclusive of
any other rights or remedies provided at law or in equity. In the
event Investor shall refer this Agreement and/or the Warrants
Agreement to an attorney to enforce the terms hereof, the Company
agrees to pay all the costs and expenses incurred in attempting or
effecting the enforcement of the Investor’s rights, including
reasonable attorney's fees, whether or not suit is
instituted.
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14. NOTICE. Any
and all notices, demands, advance requests or other communications
required or desired to be given hereunder by any party shall be in
writing and shall be validly given or made to another party if (i)
personally served, (ii) sent by email on the date such email is
sent (provided confirmation of such email being sent is provided
upon request) (iii) deposited in the United States mail, postage
prepaid, return receipt requested, or (iv) by facsimile with
confirmation receipt. Notice hereunder is to be given as
follows:
If to
the Company:
0000
Xxxxxxx Xxxx
Xxxxx
Xxxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxx
with a
copy to:
Gracin
& Xxxxxx, LLP
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx, Esq.
If to
the Investor:
with a
copy to:
15. GENERAL
PROVISIONS. All representations and warranties made in the
Transaction Documents shall survive the execution and delivery of
this Agreement and the acquisition of Securities for a period of
two years. This Agreement will be binding upon and inure to the
benefit of Company and Investor, their respective successors and
assigns.
16. ENTIRE
AGREEMENT. The Transaction Documents contain the entire
agreement of the parties and supersede and replace all prior
discussions, negotiations and representations of the parties. No
party shall rely upon any oral representations in entering into
this Agreement, such oral representations, if any, being expressly
denied by the party to whom they are attributed and it being the
intention of the parties to limit the terms of this Agreement to
those matters contained herein in writing.
17. BINDING
EFFECT. This Agreement is binding upon and inures to the
benefit of the parties hereto, their heirs, personal
representatives, successors and assigns. Investor may assign its
rights hereunder without prior permission from the
Company.
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18. GOVERNING LAW AND
CONSENT TO JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida,
without regard to conflict of law provisions. All disputes arising
out of or in connection with this Agreement, or in respect of any
legal relationship associated with or derived from this Agreement,
shall only be heard in any competent court residing in Broward
County, Florida. The Company agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any manner
provided by law. The Company further waives any objection to venue
in any such action or proceeding on the basis of inconvenient
forum. The Company agrees that any action on or proceeding brought
against the Investor shall only be brought in such
courts.
19. ATTORNEYS
FEES. In the event the Investor hereof shall refer the
Transaction Agreements to an attorney to enforce the terms thereof,
the Company agrees to pay all the costs and expenses incurred in
attempting or effecting the enforcement of the Investor's rights,
including reasonable attorney's fees, if a suit is instituted and
Investor is the prevailing party.
20. AMENDMENT.
The terms of this Agreement may not be amended, modified, or
eliminated without written consent of the parties.
21. SEVERABILITY.
Every provision of this Agreement is intended to be severable. If
any term or provision thereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this
Agreement.
22. CONSTRUCTION.
Section and paragraph headings are for convenience only and do not
affect the meaning or interpretation of this Agreement. No rule of
construction or interpretation that disfavors the party drafting
this Agreement or any of its provisions will apply to the
interpretation of this Agreement. Instead, this Agreement will be
interpreted according to the fair meaning of its
terms.
23. FURTHER
ASSURANCES. Each party hereto agrees to do all things,
including execute, acknowledge and/or deliver any documents which
may be reasonably necessary, appropriate or desirable to effectuate
the transactions contemplated herein pursuant to terms and
conditions of this Agreement.
24. COUNTERPARTS.
The parties agree that this Agreement
may be executed in one or more counterparts, each of which shall be
an original, and all of which, taken together, shall constitute one
and the same instrument. The parties further agree that this
Agreement may be executed by telecopy or fax of the signature page,
which countersigned faxed signature will for all purposes be deemed
an execution.
IN
WITNESS WHEREOF, the parties hereto enter into this Securities
Agreement which is effective as of the date first above
written.
|
COMPANY:
By:
___________________________________
Name:
Xxxxxxx Xxxxxxx
Title:
Chief Executive Officer
|
INVESTOR:
By:
Name:
Title:
|
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EXHIBIT A
WARRANT
FORM
A-1
EXHIBIT B
REGISTRATION
RIGHTS AGREEMENT
B-1
EXHIBIT C
TRANSFER
AGENT LETTER AGREEMENT
C-1
