NEONODE INC. NOTE PURCHASE AGREEMENT
Execution
Copy
NEONODE
INC.
NOTE
PURCHASE AGREEMENT (the “Agreement”)
dated
as of July 31, 2007 among NEONODE INC., a Delaware corporation (“Company”)
and
any person who executes this agreement from time to time as a purchaser of
Notes
(the “New
Investors”).
Background:
The
Company desires to sell to the New Investors, and the New Investors desire
to
purchase, up to $3,000,000 in principal amount of Senior Secured Notes, in
substantially the form attached hereto as Exhibit
1.
(the
“Notes”).
The
Company has entered into an Agreement and Plan of Merger and Reorganization,
dated January 19, 2007, as amended (the “Merger
Agreement”),
by
and among the Company, SBE and Cold Winter Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of SBE (“Merger
Sub”),
which
provides for a merger (the “Merger”)
of the
Company with and into Merger Sub.
The
Company sold 6% senior secured notes, due December 31, 2007, in aggregate
principal amount of $1,000,000 to SBE (the “SBE
Notes”),
pursuant to a note purchase agreement, dated as of May 18, 2007, and the SBE
Notes will be deemed paid in the event the Merger occurs;
On
February 28, 2006, November 20, 2006, January 22, 2007 and May 22, 2007, the
Company sold to certain investors (the “Bridge
Investors”)
senior
secured notes, all due (after amendment) on December 31, 2007, in aggregate
principal amount of $13,000,000, as described in the Proxy Statement (the
“Bridge
Notes”),
and
in connection therewith (i) the Company entered into the Security Agreement
with
the Lenders and AIGH (as agent for the Bridge Investors), (ii) the Bridge
Investors and certain other creditors of the Company entered into the
Intercreditor Agreement, and (iii) the Pledgors entered into the Stockholder
Pledge Agreements with the AIGH (as agent for the Bridge
Investors).
The
proceeds from the Notes are necessary for the development and continuance of
the
business of the Company and each of its Subsidiaries.
Certain
Definitions:
“AIGH”
means
AIGH Investment Partners, LLC, a Delaware limited liability
company.
“Capitalization
Table”
means
the Capitalization Table attached as Exhibit
7
to this
Agreement.
“Certificate
of Incorporation”
has
the
meaning set forth in Section 2.2. “Closing”
has
the
meaning set forth in Section 1.2. “Closing
Date”
has
the
meaning set forth in Section 1.2.
“Collateral”
has
the
meaning set forth in the Security Agreement, as amended, a copy of which is
included with Exhibit
2
hereto.
“Common
Stock”
shall
mean stock of the Company of any class (however designated) whether now or
hereafter authorized, which generally has the right to participate in the voting
and in the distribution of earnings and assets of the Company without limit
as
to amount or percentage, including the Company’s Common Stock, $.01 par value
per share.
“Company”
includes the Company and any Person which shall succeed to or assume, directly
or indirectly, the obligations of the Company hereunder.
“Governmental
Body”
shall
mean any: (a) nation, state, commonwealth, province, municipality or district;
(b) federal, state, local, municipal, foreign or other government; or (c)
governmental or quasi-governmental authority of any nature (including any
governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or entity and any court or other
tribunal).
“Guaranties”
means
the respective guaranties, dated February 28, 2006, as amended, delivered to
the
investors identified on Exhibit
A
of the
Stockholder Pledge Agreements, respectively, copies of which are included with
Exhibit
4
hereto.
“Guarantors”
means
each of Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxx and Per Xxxxxxx, each as a party to
his
respective Guaranty.
“Intercreditor
Agreement”
means
the Intercreditor Agreement, dated February 28, 2006, as amended, between the
Bridge Investors and Petrus.
“Material
Adverse Change”
shall
mean any change in the facts represented by the Company in the Agreement or
the
business, financial condition, results of operation, prospects, properties
or
operations of the Company and its Subsidiaries taken as a whole which may have
a
material adverse effect on the value of the Common Stock of the
Company.
“Material
Adverse Effect”
shall
mean a material adverse effect on the operations, assets, liabilities, financial
condition, prospects or business of the Company.
“Merger”
has
the
meaning set forth in the recitals.
“Merger
Agreement”
has
the
meaning set forth in the recitals. “Neonode
AB”
means
Neonode AB, a Swedish corporation. “Notes”
has
the
meaning set forth in the recitals.
“Own”
shall
mean own beneficially, as that term is defined in the rules and regulations
of
the SEC.
“Petrus”
means
Petrus Holdings, SA, a corporation organized under the laws of
Luxembourg.
“Person”
means
any individual, sole proprietorship, partnership, corporation, limited liability
company, business trust, unincorporated association, joint stock corporation,
trust, joint venture or other entity, any university or similar institution,
or
any government or any agency or instrumentality or political subdivision
thereof.
“Pledged
Collateral”
has
the
meaning set forth in the Stockholder Pledge Agreements, as amended, copies
of
which are included with Exhibit
3
hereto.
“Pledgors”
means
Xxxxxx XX (or its successor in interest, Athemis Limited), Iwo Jima Sari and
Wirelesstoys Sweden AB, each as a party to its respective Stockholder Pledge
Agreement.
“Proprietary
Assets”
shall
mean any: (i) patent, patent application, trademark (whether registered or
unregistered), trademark application, trade name, fictitious business name,
service xxxx (whether registered or unregistered), service xxxx application,
copyright (whether registered or unregistered), copyright application, maskwork,
maskwork application, trade secret, know-how, customer list, franchise, system,
computer software, computer program, invention, design, blueprint, engineering
drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset relating to the foregoing;
or
(ii) right to use or exploit any of the foregoing.
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“Proxy
Statement”
means
the SBE Notice of Special Meeting of Stockholders, dated July 3, 2007, as
amended.
“Required
Holders”
means
the holders of a majority of the principal amount of the Notes. “SSE”
has
the
meaning set forth in the recitals.
“SBE
Notes”
has
the
meaning set forth in the recitals.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Security
Agreement”
means
the Security Agreement, dated February 28, 2006, as amended, between the Company
and AIGH, as agent for the Bridge Investors, a copy of which is included with
Exhibit
2
hereto.
“Stockholder
Pledge Agreements”
means
the Stockholder Pledge and Security Agreements, dated February 28, 2006, as
amended, between the Bridge Investors and each of the Pledgors, respectively,
copies of which are included with Exhibit
3
hereto.
“Subsidiary”
shall
mean, immediately prior to the Closing, any corporation of which stock
or
other interest having ordinary power to elect a majority of the board of
directors (or other governing body) of such entity (regardless of whether or
not
at the time stock or interests of any other class or classes of such corporation
shall have or may have voting power by reason of the happening of any
contingency) is, immediately prior to the Closing, directly or indirectly Owned
by the Company or by one or more of its Subsidiaries.
“Transaction
Documents”
means
the Agreement, the Notes, the Security Agreement, the Stockholder Pledge
Agreement, the Guaranties, the Intercreditor Agreement and the other documents
required in connection with the transactions contemplated in the Agreement
(in
each case as amended through the Closing).
“U.S.
person”
shall
have the meaning set forth in Regulation S of the SEC.
In
consideration of the mutual covenants contained herein, the parties agree as
follows:
1. Purchase
and Sale of Notes.
1.1 Sale
and Issuance of Notes.
The
Company shall sell to the New Investors and the New Investors shall purchase
from the Company, an aggregate principal amount of up to $3,000,000 of Notes
at
par. The principal amount of Notes to be purchased by each of the New Investors
from the Company at the Closing (as defined herein) is set forth opposite the
name of each New Investor on the signature page hereof, subject to acceptance,
in whole or in part, by the Company.
1.2 Closing.
The
closing of the purchase and sale of up to $3,000,000 principal amount of Notes
hereunder (the “Closing”)
shall
take place within one business day after the date hereof; provided the Company
has not suffered any Material Adverse Change since the date hereof The date
on
which the Closing occurs is referred to herein as the “Closing
Date.”
The
Closing shall take place at the offices of Xxxx & Hessen LLP, the Company’s
counsel, in New York, New York, or at such other location as is mutually
acceptable to the New Investors and the Company.
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1.3 Conditions
of the Closing.
The
obligation of the New Investors to complete the purchase of the Notes at the
Closing is subject to fulfillment of the following conditions:
(a) the
Company shall have executed and delivered all documents, such as financing
statements and assignments, reasonably requested by counsel for the New
Investors;
(b) the
parties to the Transaction Documents shall have executed and delivered
amendments thereto substantially in the forms included on the exhibits to this
Agreement; and
(c) the
absence of any Material Adverse Change since the date hereof.
2. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to each of the New Investors as
follows:
2.1 Corporate
Organization; Authority; Due Authorization.
(a) The
Company (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has
the
corporate power and authority to own or lease its properties as and in the
places where such business is now conducted and to carry on its business as
now
conducted and (iii) is duly qualified and in good standing as a foreign
corporation authorized to do business in every jurisdiction where the failure
to
so qualify, individually or in the aggregate, would have a Material Adverse
Effect. Each Subsidiary is duly incorporated, and validly existing under the
laws of its jurisdiction of incorporation and is qualified to do business as
a
foreign corporation in each jurisdiction in which qualification is required,
except where failure to so qualify would not have a Material Adverse
Effect.
(b) The
Company (i) has the requisite corporate power and authority to execute, deliver
and perform this Agreement and the other Transaction Documents to which it
is a
party and to incur the obligations herein and therein and (ii) has been
authorized by all necessary corporate action to execute, deliver and perform
this Agreement and the other Transaction Documents to which it is a party and
to
consummate the transactions contemplated hereby and thereby (the “Contemplated
Transactions”).
Each
of this Agreement and the other Transaction Documents is a valid and binding
obligation of the Company enforceable in accordance with its terms except as
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting the enforcement of creditors’ rights and the availability
of equitable remedies (regardless of whether such enforceability is considered
in a proceeding at law or equity).
2.2 Capitalization.
The
authorized capital stock of the Company is 10,000,000 shares of Common Stock,
$.01 par value per share. Except as contemplated by this Agreement and as set
forth in the Proxy Statement, there are (i) no outstanding subscriptions,
warrants, options, conversion privileges or other rights or agreements
obligating the Company or Neonode AB to purchase or otherwise acquire or issue
any shares of capital stock of the Company or Neonode AB (or shares reserved
for
such purpose), (ii) no preemptive rights contained in the Company’s Certificate
of Incorporation, as amended (the “Certificate
of Incorporation”),
By-Laws of the Company or contracts to which the Company is a party (other
than
preemptive rights under the Bridge Notes, which have been waived) or rights
of
first refusal with respect to the issuance of additional shares of capital
stock
of the Company, and (iii) no commitments or understandings (oral or written)
of
the Company or Neonode AB to issue any shares, warrants, options or other
rights. Except as disclosed in the Proxy Statement, (x) all the issued and
outstanding shares of the Subsidiary’s capital stock have been duly authorized
and validly issued, are fully paid and nonassessable, have been issued in
compliance with applicable federal and state securities laws, were not issued
in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities, (y) except as disclosed in the Proxy Statement
or
this Agreement, there are no outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of the Subsidiary’s capital stock or any such options, rights,
convertible securities or obligations, and (z) the Company owns 100% of the
outstanding equity of each Subsidiary. The Proxy Statement sets forth accurately
and completely the capitalization of the Company as of the date hereof and
the
anticipated capitalization of SBE after giving effect to the Merger, but without
giving effect to the Notes.
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2.3 Validity
of Notes.
The
issuance of the Notes has been duly authorized, and the Notes, when issued,
will
be valid and binding obligations of the Company and upon Closing will be in
full
force and effect and enforceable in accordance with their respective
terms.
2.4 Private
Offering.
Neither
the Company nor anyone acting on its behalf has within the last 12 months
issued, sold or offered any security of the Company (including, without
limitation, any Notes) to any Person under circumstances that would cause the
issuance and sale of the Notes, as contemplated by this Agreement, to be subject
to the registration requirements of the Securities Act.
2.5 Brokers
and Finders.
The
Company has not retained any investment banker, broker or finder in connection
with the Contemplated Transactions. As set forth in the Proxy Statement, the
Company has retained and will compensate Xxxxxxx Securities, Inc., as an advisor
in connection with the Merger.
2.6 Financial
Statements; Absence of Certain Changes.
Each of
(a) the unaudited balance sheet of the Company as of Xxxxx 00, 0000, (x) the
unaudited statements of income, retained earnings and cash flows of the Company
for the period ended on March 31, 2007, and (c) the unaudited statements of
income, retained earnings and cash flows of the Company for the period ended
on
March 31, 2007, included in the Proxy Statement (including any related notes
and
schedules, if any), (the “Financial
Statements”)
fairly
presents, in all material respects, the financial position of the Company,
or
the results of operations, retained earnings or cash flows, as the case may
be,
of the Company as of the referenced date or for the periods set forth therein
(subject to normal year-end audit adjustments which would not be material in
amount or effect), in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may
he
noted therein and that the unaudited statements may not contain all footnotes
required by generally accepted accounting principles. Neither the Company nor
any Subsidiary has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise), including for taxes, that would
be
required to be reflected on, or reserved against in, Financial Statements,
except for (i) liabilities or obligations that were so reserved on, or reflected
in (including the notes to), the Financial Statements; and (ii) liabilities
or
obligations which would not, individually or in the aggregate, have a Material
Adverse Effect. Other than the indebtedness as set forth in the Financial
Statements or the Proxy Statement, neither the Company nor any Subsidiary has
any indebtedness other than reasonable accounts payable. Except as specifically
contemplated by this Agreement or as set forth in the Proxy Statement (including
without limitation continuing losses of the Company) and the Financial
Statements, there has not been any Material Adverse Change since March 31,
2007.
2.7 Company
Disclosure.
No
representation or warranty of the Company herein, no exhibit or schedule hereto,
and no information about the Company contained or referenced in the Proxy
Statement, when read together, contains or will contain any untrue statement
of
a material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
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3. Representations
and Warranties of the New Investors.
Each
New Investor represents and warrants to the Company as follows:
3.1 Authorization.
Such
New Investor (i) has full power and authority to execute, deliver and perform
this Agreement and the other Transaction Documents to which it is a party and
to
incur the obligations herein and therein and (ii) if applicable has been
authorized by all necessary corporate or equivalent action to execute, deliver
and perform this Agreement and the other Transaction Documents and to consummate
the Contemplated Transactions. Each of this Agreement and the other Transaction
Documents to which the New Investors are parties is a valid and binding
obligation of such New Investor enforceable in accordance with its terms, except
as limited by applicable bankruptcy, reorganization, insolvency, moratorium
or
similar laws affecting the enforcement of creditors’ rights and the availability
of equitable remedies (regardless of whether such enforceability is considered
in a proceeding at law or equity).
3.2
Brokers
and Finders.
Such
New Investor has not retained any investment banker, broker or finder in
connection with the Contemplated Transactions.
3.3
The
Notes
to be received by such New Investor will be acquired for investment for such
New
Investor’s own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof such that such New Investors would
constitute an “underwriter” under the Securities Act.
3.4
Such
New
Investor understands and acknowledges that the offering of the Notes pursuant
to
this Agreement will not be registered under the Securities Act or qualified
under any state securities laws on the grounds that the offering and sale of
the
Notes are exempt from registration and qualification, respectively, under the
Securities Act and the Blue Sky Laws.
3.5
Such
New
Investor represents that (i) such New Investor is able to fend for itself in
the
Contemplated Transactions; (ii) such New Investor has such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of such New Investor’s prospective investment in the Notes;
(iii) such New Investor recognizes that its investment in the Notes involves
a
high degree of risk which may result in the loss of the total amount of its
investment and can afford the complete loss of such investment (iv) such New
Investor recognizes that the Company has a very limited operating history upon
which an evaluation of its business and prospects can be based; (v) such New
Investor recognizes that the Company’s prospects must be considered in light of
its limited operating history, together with the expenses, difficulties,
uncertainties and delays frequently encountered in connection with the early
phases of a new business; and (vi) such New Investor recognizes that there
can
be no assurance that the Company will ever achieve any time soon or sustain
profitability.
3.6
Such
New
Investor received a copy of the Proxy Statement prior to the date hereof. Such
New Investor has read and had the opportunity to discuss with management of
the
Company: (i) this Agreement, (ii) the Merger and (iii) the Proxy Statement,
including without limitation the risk factors set forth therein.
3.7
If
the
New Investor is a U.S. person, (i) such New Investor qualifies as an “accredited
investor” as such term is defined under Rule 501 promulgated under the
Securities Act, and (ii) such New Investor, if it is a corporation, a
partnership, a limited liability company, a trust or other business entity,
has
not been organized for the purpose of purchasing the Notes.
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3.8
If
the
New Investor is a non U.S. person (each, a “Non-U.S.
Purchaser”),
(i)
such Non-U.S. Purchaser is not a U.S. person; (ii) such Non-U.S. Purchaser
was
outside the United States at the time the offer to sell the Notes was made
and
at the time the buy order for the Notes was originated; (iii) such Non-U.S.
Purchaser will not offer or sell the Notes, or any securities of the Company
received in respect thereof, to a U.S. person or for the account or benefit
of a
U.S. person (other than a distributor), for a period of one year commencing
on
the Closing.
3.9
Such
New
Investor acknowledges that (i) the SBE Notes maybe paid prior to the Notes
and
(ii) the Bridge Notes, which are generally on a par with the Notes, bear
interest at 4% per annum, will be converted in event the Merger occurs on
different terms than the Notes may be converted and have different conversion
rights in the event the Merger is not completed.
4.
Securities
Laws; Certain Covenants of New Investors.
4.1
Each
New
Investor agrees that the Notes and any securities of the Company received in
respect of the foregoing held by it may not be sold by such New Investor without
registration under the Securities Act or an exemption therefrom, and therefore
such New Investor may be required to hold such securities for an indeterminate
period.
4.2
Each
New
Investor agrees that the obligations under the Notes shall be subject to the
Security Agreement, Stockholder Pledge Agreement and the Intercreditor
Agreement, each as amended as contemplated herein. AIGH shall have no duty
to
the New Investor arising out of its actions or failure to act under the Security
Agreement, Stockholder Pledge Agreement, the Intercreditor Agreement or
Guaranties, each as amended as contemplated herein, provided that AIGH shall
apply the same standard of care as it would use in determining whether to act
under such agreements in its capacity as a Bridge Investor.
4.3
Each
New
Investor agrees to indemnify AIGH from and against any and all reasonable
claims, losses, and liabilities (including, without limitation, reasonable
attorney fees) arising out of or resulting from the Notes, Security Agreement,
Stockholder Pledge Agreement, the Intercreditor Agreement or Guaranties, except
claims, losses, or liabilities resulting from the gross negligence or willful
misconduct of AIGH.
4.4
Each
New
Investor will upon demand pay the amount of any and all reasonable expenses,
including, without limitation, the reasonable fees and expenses of counsel
and
of any experts and agents, which AIGH may incur in connection with (i) the
preparation and administration of the Security Agreement, Stockholder Pledge
Agreement, the Intercreditor Agreement or Guaranties, each as amended as
contemplated herein; (ii) the exercise or enforcement of any of the rights
of
AIGH or the New Investor thereunder; or (iii) the failure by the New Investor
to
perform or observe any of the provisions hereof or thereof.
4.5
Each
New
Investor hereby waives any and all preemptive rights or other rights to acquire
any securities of the Company or any of its Subsidiaries relating to or in
connection with the offering or sale of the Notes or the Merger.
4.6
Each
New
Investor hereby appoints AIGH as its agent under the Security Agreement with
respect to the Collateral and the creation, perfection, priority, preservation,
protection and enforcement of a security interest therein in accordance with
the
terms of the Security Agreement. Each New Investor hereby authorizes AIGH to
take such actions with respect to the Collateral, for the pro-rata benefit
of
the New Investors and the Bridge Investors in accordance with Section 9 of
the
Security Agreement, as AIGH determines to take in its sole discretion, and
each
New Investor agrees to indemnify and hold harmless AIGH for all costs, claims
or
expenses (including without limitation attorneys’ fees and expenses) in
connection with such actions taken or omitted to be taken, except to the extent
resulting from the gross negligence or willful misconduct of AIGH. AIGH shall
provide prompt notice of any material action under the Security Agreement to
the
New Investors.
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4.7
Each
New
Investor hereby appoints AIGH as its agent under the Stockholder Pledge
Agreements with respect to the Pledged Collateral and the creation, perfection,
priority, preservation, protection and enforcement of a security interest
therein in accordance with the terms of the Stockholder Pledge Agreements.
Each
New Investor hereby authorizes AIGH to take such actions with respect to the
Pledged Collateral, for the pro-rata benefit of the New Investors and the Bridge
Investors in accordance with Section 9 of the Stockholder Pledge Agreements,
as
AIGH determines to take in its sole discretion, and each New Investor agrees
to
indemnify and hold harmless AIGH for all costs, claims or expenses (including
without limitation attorneys’ fees and expenses) in connection with such actions
taken or omitted to be taken, except to the extent resulting from the gross
negligence or willful misconduct of AIGH. AIGH shall provide prompt notice
of
any material action under the Stockholder Pledge Agreements to the New
Investors.
5.
Additional
Covenants of the Company.
5.1
Form
D.
As soon
as is practicable following the Closing, the Company shall prepare and file
with
the SEC a Form D concerning the sale of the Notes.
5.2
Financial
Reports and Tax Returns.
Until
the Company is a public company required to file financial reports with the
U.S.
Securities and Exchange Commission, the Company will furnish or will cause
to be
furnished to each New Investor:
(a)
within
90
days after the end of each fiscal quarter and fiscal year of the Company,
respectively, financial statements (including income statement and balance
sheet) in accordance with generally accepted accounting standards (except that
interim financial statements need not contain footnotes or normal year-end
adjustments); and
(b)
within
90
days after the end of each fiscal year of the Company, an independent certified
audit of financial statements for such fiscal year.
6.
Miscellaneous.
6.1
Entire
Agreement; Successors and Assigns.
This
Agreement and the other Transaction Documents constitute the entire contract
between the parties relative to the subject matter hereof and thereof, and
no
party shall be liable or bound to the other in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
This Agreement and the other Transaction Documents supersede any previous
agreement among the parties with respect to the Notes. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective executors, administrators, heirs, successors and assigns of the
parties. Except as expressly provided herein, nothing in this Agreement,
expressed or implied, is intended to confer upon any party, other than the
parties hereto, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
6.2
Survival
of Representations and Warranties.
All
representations and warranties of the Company shall survive the execution and
delivery of this Agreement and the Closing hereunder and shall continue in
full
force and effect for one year after the Closing. The covenants of the Company
set forth in Section 5 shall remain in effect as set forth therein.
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6.3
Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts of law. Each party
hereby irrevocably consents and submits to the jurisdiction of any New York
State or United States Federal Court sitting in the State of New York, County
of
New York, over any action or proceeding arising out of or relating to this
Agreement and irrevocably consents to the service of any and all process in
any
such action or proceeding by registered mail addressed to such party at its
address specified in Section 6.6 (or as otherwise noticed to the other party).
Each party further waives any objection to venue in New York and any objection
to an action or proceeding in such state and county on the basis of forum non
conveniens. Each party also waives any right to trial by jury.
6.4
Counterparts.
This
Agreement maybe executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
6.5
Headings.
The
headings of the sections of this Agreement are for convenience and shall not
by
themselves determine the interpretation of this Agreement.
6.6
Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon (i) personal delivery, (ii) delivery by fax (with
answer back confirmed) or (iii) delivery by electronic mail (with reception
confirmed), addressed to a party at its address or sent to the fax number or
e-mail address shown below or at such other address, fax number or e-mail
address as such party may designate by three days advance notice to the other
party.
Any
notice to New Investors shall be sent to the addresses set forth on the
signature pages hereof.
Any
notice to the Company shall be sent to:
Neonode
Inc.
Xxxxxxxxxxxxxxx
00
X
000 00
Xxxxxxxxx, Xxxxxx
Attention:
President
Fax
Number: +46-8-678 1 S 51
with
a
copy to:
Xxxx
& Hessen LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxx, Esq.
Fax
Number: (000) 000-0000
6.7
Rights
of Transferees.
Any and
all rights and obligations of the New Investor herein incident to the ownership
of Notes shall pass successively to all subsequent transferees of such
securities until extinguished pursuant to the terms hereof.
6.8
Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be deemed prohibited or invalid under such applicable
law, such provision shall be ineffective to the extent of such prohibition
or
invalidity, and such prohibition or invalidity shall not invalidate the
remainder of such provision or any other provision of this
Agreement.
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9
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6.9
Expenses.
Irrespective of whether the Closing is effected, the Company shall pay all
costs
and expenses that it incurs with respect to the negotiation, execution, delivery
and performance of this Agreement. Each New Investor shall he responsible for
all costs incurred by such New Investor in connection with the negotiation,
execution, delivery and performance of this Agreement including, but not limited
to, legal fees and expenses.
6.10
Amendments
and Waivers.
Unless
a particular provision or section of this Agreement requires otherwise
explicitly in a particular instance, any provision of this Agreement maybe
amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders. Any amendment or waiver effected in accordance with this Section 6.10
shall be binding upon each holder of any Notes at the time outstanding
(including securities into which such Notes are convertible), each future holder
of all such Notes, and the Company.
6.11
Conflicts.
The
Company and each New Investor (i) acknowledge that Xxxx & Hessen LLP,
counsel to the Company in the Contemplated Transactions and the Merger, has
acted, and from time to time continues to act, as counsel to (A) certain of
the
Bridge Investors, or affiliates thereof, in connection with the Notes, and
(B)
AIGH in connection with the Notes, the Security Agreement, the Pledge
Agreements, investments in SBE, and in unrelated matters, (ii) consent to the
representation of the Company and such other representation of certain of the
Bridge Investors, or affiliates thereof, by Xxxx & Hessen LLP, (iii)
acknowledge that partners of Xxxx & Hessen LLP own securities of SBE
constituting less than 0.2% of outstanding stock of SBE and $15,000 in principal
amount of Bridge Notes, and (iv) waive any conflicts of interest claim which
may
arise from any or all of the foregoing.
[signature
page follows]
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10
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SIGNATURE
PAGE
TO
NEONODE
INC.
Dated
July 31, 2007
IF
the
PURCHASER is an INDIVIDUAL, please complete the following:
IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the ____
day
of July, 2007, and execution of this Agreement shall constitute consent to
joinder as a party to, subject to, or beneficiary of the applicable Stockholder
Pledge Agreement, Guaranties, and Security Agreement, each as
amended.
Amount
of
Subscription:
$
principal amount of Notes
Print
Name
|
|
Signature
of New Investor
|
|
Social
Security Number
|
|
Address
and Fax Number
|
|
E-mail
Address
|
ACCEPTED
AND AGREED:
|
|
NEONODE
INC.
|
|
By:
|
|
Dated:
|
SIGNATURE
PAGE
TO
NEONODE
INC.
Dated
July 31, 2007
IF
the
PURCHASER is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, TRUST or
OTHER ENTITY, please complete the following:
IN
WITNESS WHEREOF, the undersigned has executed this Agreement as of the _____
day
of July, 2007, and execution of this Agreement shall constitute consent to
joinder as a party to, subject to or beneficiary of the applicable Stockholder
Pledge Agreement, Guaranties, Intercreditor Agreement and Security Agreement,
each as amended.
Amount
of
Subscription:
$
principal amount of Notes
Print
Full Legal Name of Partnership, Company,
Limited
Liability Company, Trust or Other Entity
|
|
By:
|
|
(Authorized
Signatory)
|
Name: |
Title: |
Address and Fax Number: | |
Taxpayer Identification Number: |
Date and State of Incorporation or Organization: |
Date on which Taxable Year Ends: |
E-mail Address: |
ACCEPTED
AND AGREED:
NEONODE
INC.
EXHIBITS
TO
THE
NOTE PURCHASE AGREEMENT
Exhibit 1: |
Form
of Notes
|
Exhibit 2: |
Form
of Amendment No. 4 to Security Agreement, Amendment No. 3 to Security
Agreement, Amendment No. 2 to Security Agreement, Amendment No. 1
to
Security Agreement, and Security
Agreement
|
Exhibit 3: |
Form
of Amendment No. 4 to Stockholder Pledge Agreement, Amendment No.
3 to
Stockholder Pledge Agreement, Amendment No. 2 to Stockholder Pledge
Agreement, Amendment No. 1 to Stockholder Pledge Agreement, and
Stockholder Pledge Agreement for each
of:
|
Iwojima
Sari
Athemis
Limited
Wirelesstoys
Sweden AB
Exhibit 4: |
Form
of Amendment No. 4 to Guaranty, Amendment No. 3 to Guaranty, Amendment
No.
2 to Guaranty, Amendment No. 1 to Guaranty, and Guaranty for each
of:
|
Per
Xxxxxxx
Xxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxx