EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of September
30, 2003, by and among BAM! ENTERTAINMENT, INC., a corporation organized under
the laws of the State of Delaware (the "COMPANY"), and the purchasers (the
"PURCHASERS") set forth on the execution pages hereof (the "EXECUTION PAGES").
WHEREAS:
A. The Company and each Purchaser are executing and delivering
this Agreement in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D ("REGULATION D"), as promulgated by
the United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "SECURITIES ACT").
B. Each Purchaser desires to purchase, severally and not jointly,
subject to the terms and conditions stated in this Agreement, (i) shares of the
Company's common stock, $0.001 par value (the "COMMON STOCK"), (ii) warrants in
the form attached hereto as Exhibit A (including any warrants issued in
replacement thereof, the "WARRANTS"), to acquire shares of Common Stock; and
(iii) additional investment rights in the form attached hereto as Exhibit B (the
"Additional Investment Rights"). The shares of Common Stock issuable upon
exercise of or otherwise pursuant to the Warrants are referred to herein as the
"WARRANT SHARES." The shares of Common Stock issuable upon exercise of the
Additional Investment Rights are referred to herein as the "ADDITIONAL
INVESTMENT RIGHT SHARES." The warrants issuable upon exercise of the Additional
Investment Rights are referred to herein as the "ADDITIONAL INVESTMENT RIGHT
WARRANTS." The shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Additional Investment Right Warrants are referred to herein as
the "ADDITIONAL INVESTMENT RIGHT WARRANT SHARES."
C. Contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Common Stock
Registration Rights Agreement in the form attached hereto as Exhibit C (the
"COMMON STOCK REGISTRATION RIGHTS AGREEMENT"), and a Warrant Shares Registration
Rights Agreement in the form attached hereto as Exhibit D (the "WARRANT SHARES
REGISTRATION RIGHTS AGREEMENTS" and collectively with the Common Stock
Registration Rights Agreement the "REGISTRATION RIGHTS AGREEMENTS") pursuant to
which the Company has agreed to provide certain registration rights under the
Securities Act and the rules and regulations promulgated thereunder, and
applicable state securities laws.
NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings ascribed to them as provided below:
"AFFILIATE" or "AFFILIATES" means, with respect to any Person, any
other Person that directly or indirectly controls, is controlled by, or is under
common control with, such Person.
"BUSINESS DAY" shall mean any day on which the principal United States
securities exchange or trading market on which the Common Stock is listed or
traded.
"COMMON STOCK EQUIVALENTS" means, collectively, Options and Convertible
Securities.
"CONVERTIBLE SECURITIES" means any stock or securities (other than
Options) convertible into or exercisable or exchangeable for Common Stock.
"INVESTMENT AMOUNT" shall mean the dollar amount to be invested in the
Company at the Closing pursuant to this Agreement by a Purchaser, as set forth
on the Execution Page hereto executed by such Purchaser.
"LIEN" means any lien, charge, claim, security interest, encumbrance,
right of first refusal or other restriction.
"MATERIAL ADVERSE EFFECT" shall mean an event that (i) adversely affect
the legality, validity or enforceability of any Transaction Document, (ii) have
or result in a material adverse effect on the results of operations, assets,
prospects, business or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) adversely impair the Company's ability
to perform fully on a timely basis its obligations under any of the Transaction
Document; provided, that none of the following alone shall be deemed, in and of
itself, to constitute a Material Adverse Effect: (i) a change in the market
price or trading volume of the Common Stock or (ii) changes in general economic
conditions or changes affecting the industry in which the Company operates
generally (as opposed to Company-specific changes) so long as such changes do
not have a disproportionate effect on the Company and its Subsidiaries taken as
a whole.
"OPTIONS" means any rights, warrants or options to subscribe for or
purchase Common Stock or Convertible Securities.
"PERSON" means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
"PROCEEDING" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"PRO RATA PERCENTAGE" shall mean, with respect to any Purchaser, a
percentage computed by dividing such Purchaser's Investment Amount by the
aggregate Investment Amounts of all Purchasers.
"SECURITIES" shall mean the Shares, the Warrants, the Warrant Shares,
the Additional Investment Rights, the Additional Investment Right Shares and the
Additional Investment Right Warrant Shares.
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"SHARES" means the shares of Common Stock to be issued and sold by the
Company and purchased by the Purchasers at the Closing.
"SUBSIDIARY" or "SUBSIDIARIES," when used with respect to subsidiaries
of the Company in Section 4 of this Agreement, means or includes only a
"Significant Subsidiary" as defined in Rule 405 of Regulation C under the
Securities Act.
"TRANSACTION DOCUMENTS" means this Agreement, the Warrants, the
Additional Investment Rights, the Registration Rights Agreements, the Transfer
Agent Instructions and any other documents or agreements executed in connection
with the transactions contemplated hereunder.
"TRANSFER AGENT" means American Stock Transfer & Trust Company, or any
other transfer agent selected by the Company.
"TRANSFER AGENT INSTRUCTIONS" means the Transfer Agent Instructions, in
the form of Exhibit E, executed by the Company and delivered to and acknowledged
in writing by the Transfer Agent.
2. PURCHASE AND SALE OF SHARES AND WARRANTS.
a. Generally. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section 6
and Section 7 below, each Purchaser shall purchase the number of Shares,
Warrants and Additional Investment Rights determined as provided in this Section
2, and the Company shall issue and sell such number of Shares, Warrants and
Additional Investment Rights to each Purchaser for such Purchaser's Investment
Amount as provided below. The Company's agreement with each of the Purchasers is
a separate agreement, and the sale of the Securities to each of the Purchasers
is a separate sale.
b. Number of Closing Shares and Warrants; Form of Payment;
Closing Date.
i. On the Closing Date (as defined below), the Company
shall sell and each Purchaser shall buy (A) the number of Shares as is equal to
the quotient of (I) such Purchaser's Investment Amount divided by (II) $0.96,
(B) Warrants exercisable for a number of shares of Common Stock equal to 90% of
the number of Shares referred to in subclause (A) above and (C) an Additional
Investment Right to purchase that number of Additional Investment Right Shares
and Additional Investment Rights Warrants, each as set forth on Exhibit F
hereto. On the Closing Date, each Purchaser shall pay the Company an amount
equal to such Purchaser's Investment Amount.
ii. On the Closing Date, each Purchaser shall pay its
Investment Amount by wire transfer to the Company, in accordance with the
Company's written wiring instructions against delivery of certificates
representing the Shares and duly executed Warrants and Additional Investment
Rights being purchased by such Purchaser, and the Company shall deliver such
Shares, Warrants and Additional Investment Rights against delivery of the such
Purchaser's Investment Amount.
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iii. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date and time
of the sale of the Shares, Warrants and Additional Investment Rights pursuant to
this Agreement (the "CLOSING") shall be 3:00 p.m. California time on October 1,
2003 or such other date or time as the Purchasers and the Company may mutually
agree ("CLOSING DATE"). The Closing shall occur at the Proskauer Rose LLP, or at
such other place as Purchasers and the Company may otherwise mutually agree.
3. THE PURCHASER'S REPRESENTATIONS AND WARRANTIES.
Each Purchaser severally and not jointly represents and warrants to the
Company as follows:
a. Purchase for Own Account. The Purchaser is purchasing the
Securities for the Purchaser's own account and not with a present view towards
the distribution thereof. The Purchaser understands that the Purchaser must bear
the economic risk of this investment indefinitely, unless the Securities are
registered pursuant to the Securities Act and any applicable state securities or
blue sky laws or an exemption from such registration is available, and that the
Company has no present intention of registering any such Securities other than
as contemplated by the Registration Rights Agreements. Notwithstanding anything
in this Section 3(a) to the contrary, by making the foregoing representation,
the Purchaser does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption from
registration under the Securities Act and any applicable state securities laws;
provided, that in the case of any transfer of the Securities pursuant to an
exemption, such transfer is made in accordance with the provisions of Section
3(e).
b. Information. The Purchaser has been furnished all materials
(excluding any material nonpublic information) relating to the business,
finances and operations of the Company and its Subsidiaries and materials
relating to the offer and sale of the Securities that have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask questions of
the Company and has received what the Purchaser believes to be satisfactory
answers to any such inquiries. The Purchaser understands that its investment in
the Securities involves a high degree of risk.
c. Governmental Review. The Purchaser understands that no United
States federal or state agency or any other government or governmental agency
has passed upon or made any recommendation or endorsement of the Securities.
d. Authorization; Enforcement. The Purchaser has the requisite
power and authority to enter into and perform its obligations under this
Agreement and to purchase the Securities in accordance with the terms hereof.
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 to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
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e. Transfer or Resale. The Purchaser understands that (i) except
as provided in the Registration Rights Agreements, the Securities have not been
and are not being registered under the Securities Act or any state securities
laws, and may not be transferred unless (a) subsequently registered thereunder
or sold pursuant to Rule 144(k) under the Securities Act, or (b) the Purchaser
shall have delivered to the Company an opinion of counsel reasonably acceptable
to the Company (which opinion shall be in form, substance and scope customary
for opinions of counsel in comparable transactions) to the effect that the
Securities to be sold or transferred may be sold or transferred under an
exemption from such registration, and (ii) neither the Company nor any other
Person is under any obligation to register such Securities under the Securities
Act or any state securities laws or to comply with the terms and conditions of
any exemption thereunder, in each case, other than pursuant to the Registration
Rights Agreements.
f. Legends. The Purchaser understands that the Securities may
bear a restrictive legend in substantially the following form:
[NEITHER] THESE SECURITIES [NOR THE SECURITIES INTO WHICH
THESE SECURITIES ARE EXERCISABLE] HAVE [NOT] BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE SECURITIES REPRESENTED HEREBY MAY NOT BE
OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS
UNLESS OFFERED, SOLD OR TRANSFERRED UNDER AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS.
NOTWITHSTANDING THE FOREGOING, THESE SECURITIES [AND THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES] MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY SUCH SECURITIES.
Certificates evidencing Securities shall not be required to contain
such legend or any other legend (i) while a Registration Statement covering the
resale of such Securities is effective under the Securities Act provided the
Purchasers at the time any of the Purchasers request a removal of the Legend on
any certificate evidencing all or any portion of any of the Securities or to
transfer any of the same, it (or a broker acting on such Purchaser's behalf)
provides to the Company (or to the Transfer Agent on the Company's behalf),
reasonable written assurances to the effect that any of the Securities, sold or
to be sold by such Purchasers have been, or will be, sold in accordance with the
plan of distribution set forth in the Prospectus and in compliance with the
prospectus delivery requirements under the Securities Act., or (ii) following
any sale of such Securities pursuant to Rule 144, or (iii) if such Securities
are eligible for sale under Rule 144(k), or (iv) if such legend is not required
under applicable requirements of the Securities Act
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(including judicial interpretations and pronouncements issued by the Staff of
the SEC). The Company shall cause its counsel to issue the legal opinion
included in the Transfer Agent Instructions to the Transfer Agent on the
Effective Date. Following the Effective Date or at such earlier time as a legend
is no longer required for certain Securities, the Company will no later than
three Business Days following the delivery by a Purchaser to the Company or the
Transfer Agent of a legended certificate representing such Securities, deliver
or cause to be delivered to such Purchaser a certificate representing such
Securities that is free from all restrictive and other legends. The Company may
not make any notation on its records or give instructions to any transfer agent
of the Company that enlarge the restrictions on transfer set forth in this
Section.
The Company acknowledges and agrees that a Purchaser may from time to
time pledge or grant a security interest in some or all of the Securities in
connection with a bona fide margin agreement or other loan or financing
arrangement secured by the Securities and, if required under the terms of such
agreement, loan or arrangement, such Purchaser may transfer pledged or secured
Securities to the pledgees or secured parties. Such a pledge or transfer would
not be subject to approval of the Company and no legal opinion of the pledgee,
secured party or pledgor shall be required in connection therewith, but such
legal opinion may be required in connection with a subsequent transfer following
default by the Purchaser transferee of the pledge. Further, no notice shall be
required of such pledge. At the appropriate Purchaser's expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured
party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) of the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.
g. Investor Status. The Purchaser is an "ACCREDITED INVESTOR"
within the meaning of Rule 501 Regulation D under the Securities Act. In the
normal course of its business, it invests in or purchases securities similar to
the Securities and it has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
purchasing the Securities. The Purchaser is not a registered broker dealer or an
Affiliate of any broker or dealer registered under Section 15(a) of the Exchange
Act, or a member of the National Association of Securities Dealers, Inc. or a
Person engaged in the business of being a broker dealer.
h. Restricted Securities. The Purchaser understands that the
Securities are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances.
i. No Short Positions or Stock Ownership. Except as previously
disclosed to the Company in writing, each Purchaser has not, prior to the 30
Business Days prior to the Closing Date, entered into any Short Sales. For
purposes of this Section 3.2(i), a "SHORT SALE" by a Purchaser means a sale of
Common Stock that is marked as a short sale and that is executed at a time when
such Purchaser has no equivalent offsetting long position in the Common Stock.
For purposes of determining whether a Purchaser has an equivalent offsetting
long position in the Common Stock, all Common Stock and all Common Stock that
would be issuable upon conversion or exercise in full of all Options then held
by such Purchaser (assuming that such
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Options were then fully convertible or exercisable, notwithstanding any
provisions to the contrary, and giving effect to any conversion or exercise
price adjustments scheduled to take effect in the future) shall be deemed to be
held long by such Purchaser.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as follows:
a. Organization and Qualification. Each of the Company and its
Subsidiaries is a corporation duly organized and existing under the laws of the
jurisdiction in which it is incorporated, and has the requisite corporate power
to own its properties and to carry on its business as now being conducted. Each
of the Company and its Subsidiaries is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the nature
of the business conducted by it makes such qualification necessary and where the
failure so to qualify would have a Material Adverse Effect. The Company has no
direct or indirect Subsidiaries other than those listed in Schedule 4(a). Except
as disclosed in Schedule 4 (a), the Company owns, directly or indirectly, all of
the capital stock or comparable equity interests of each Subsidiary free and
clear of any Lien, and all the issued and outstanding shares of capital stock or
comparable equity interests of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive and similar rights.
b. Authorization; Enforcement. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement, the Warrants, the Additional Investment Rights, the Additional
Investment Right Warrants and the Registration Rights Agreements, to issue and
sell the Shares, the Warrants, the Additional Investment Rights, the Additional
Investment Right Shares and the Additional Investment Right Warrants in
accordance with the terms hereof and to issue the Warrant Shares and the
Additional Investment Right Warrant Shares upon exercise of the Warrants and the
Additional Investment Right Warrants, respectively, in accordance with the terms
of said warrants; (ii) the execution, delivery and performance of this
Agreement, the Warrants, the Additional Investment Rights, the Additional
Investment Right Warrants and the Registration Rights Agreements by the Company
and the consummation by it of the transactions contemplated hereby and thereby
(including, without limitation, the reservation for issuance and issuance of the
Shares and the Additional Investment Rights Shares and the issuance of the
Warrants, the Additional Investment Rights and the Additional Investments Right
Warrants and the reservation for issuance and issuance of the Warrant Shares and
the Additional Investment Right Warrants Shares) have been duly authorized by
the Company's Board of Directors and no further consent or authorization of the
Company, its Board of Directors or its shareholders is required; (iii) this
Agreement has been duly executed and delivered by the Company; and (iv) this
Agreement constitutes, and, upon execution and delivery by the Company and the
other parties thereto to the extent required of the Registration Rights
Agreements, the Warrants, the Additional Investment Rights, and the Additional
Investments Rights Warrants, such agreements will constitute, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
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c. Capitalization. The capitalization of the Company as of the
date hereof is set forth on Schedule 4(c), including the authorized capital
stock, the number of shares issued and outstanding, the number of shares
issuable and reserved for issuance pursuant to the Company's stock option plans,
the number of shares issuable and reserved for issuance pursuant to securities
exercisable for, or convertible into or exchangeable for any shares of capital
stock. All of such outstanding shares of the Company's capital stock have been,
or upon issuance will be, validly issued, fully paid and nonassessable. Except
as set forth on Schedule 4(c), no shares of capital stock of the Company
(including the Shares, the Warrant Shares, the Additional Investment Right
Shares and the Additional Investment Right Warrant Shares) or any of the
Subsidiaries are subject to preemptive rights or any other similar rights of the
shareholders of the Company or any liens or encumbrances. Except for the
Securities and as disclosed in Schedule 4(c), as of the date of this Agreement,
(i) there are no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever to which the Company or any of
its Subsidiaries is a party relating to the issuance by the Company or any of
its Subsidiaries of securities or rights convertible into or exercisable 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 such Subsidiaries, and (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 Securities Act (except the
Registration Rights Agreements). Except as set forth on Schedule 4(c), there are
no securities or instruments containing antidilution or similar provisions that
may be triggered by the issuance of the Securities in accordance with the terms
of this Agreement, the Warrants, the Additional Investment Rights, the
Additional Investment Right Warrants or the Registration Rights Agreements and
the holders of the securities and instruments listed on such Schedule 4(c) have
waived any rights they may have under such antidilution or similar provisions in
connection with the issuance of the Securities in accordance with the terms of
this Agreement, the Warrants, the Additional Investment Rights, the Additional
Investment Right Warrants or the Registration Rights Agreements. The Company has
made available to each Purchaser true and correct copies of the Company's
Certificate of Incorporation as in effect on the date hereof ("CERTIFICATE OF
INCORPORATION"), the Company's By-laws as in effect on the date hereof (the
"BY-LAWS") and all other instruments and agreements governing securities
convertible into or exercisable or exchangeable for capital stock of the
Company, except for stock options granted under any benefit plan of the Company.
d. Issuance of Shares. The Shares are duly authorized and when
issued and paid for in accordance with the terms hereof, will be validly issued,
fully paid and non-assessable, and free from all taxes and Liens (other than
those imposed through acts or omissions of the Purchaser thereof) and will not
be subject to preemptive rights or other similar rights of shareholders of the
Company. The Warrant Shares, the Additional Investment Right Shares and the
Additional Investment Rights Warrant Shares are duly authorized and reserved for
issuance, and, upon exercise of the Warrants, the Additional Investment Rights
and/or the Additional Investment Right Warrants, as the case may be, in
accordance with the terms thereof, will be validly issued, fully paid and
non-assessable and free from all taxes and Liens (other than those imposed
through acts or omissions of the Purchaser thereof) and will not be subject to
preemptive rights or other similar rights of shareholders of the Company.
e. No Conflicts. The execution, delivery and performance of this
Agreement, the Registration Rights Agreements, the Warrants and the Additional
Investment Rights by the
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Company, and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the reservation for issuance
and issuance of the Shares, the Warrant Shares, the Additional Investment Right
Shares and the Additional Investment Right Warrant Shares and the issuance of
the Warrants, the Additional Investment Rights and the Additional Investment
Right Warrants) will not (i) conflict with or result in a violation of the
Certificate of Incorporation or By-laws or (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 to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree (including (assuming the
accuracy of the representations and warranties of the Purchasers) the United
States federal and state securities laws and regulations) applicable to the
Company or any of its Subsidiaries or by which any property or asset of the
Company or any of its Subsidiaries is bound or affected (except, with respect to
clause (ii), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect). Neither the Company nor any of its
Subsidiaries is in violation of its Certificate of Incorporation, By-laws and
other organizational documents and neither the Company nor any of its
Subsidiaries is in default (and no event has occurred which, with notice or
lapse of time or both, would put the Company or any of its Subsidiaries in
default) under, nor has there occurred any event giving others (with notice or
lapse of time or both) any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its Subsidiaries is a party, except for actual or possible violations,
defaults or rights as would not, individually or in the aggregate, have a
Material Adverse Effect. The businesses of the Company and its Subsidiaries are
not being conducted in violation of any law, ordinance or regulation of any
governmental entity, except for actual or possible violations, if any, the
sanctions for which either singly or in the aggregate would not have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as
required under the Securities Act and any applicable state securities laws and
assuming the accuracy of the representations and warranties of the Purchasers,
the Company is not required to obtain any consent, approval, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self regulatory agency in order for it to execute,
deliver or perform any of its obligations under this Agreement including without
limitation the issuance and sale of the Shares, Warrants and the Additional
Investment Rights as provided hereby), the Warrants and the Additional
Investment Rights Warrants (including without limitation the issuance of the
Warrant Shares and the Additional Investment Right Warrant Shares) or the
Registration Rights Agreements, in each case in accordance with the terms hereof
or thereof. The Company is not currently in violation of the listing or
maintenance requirements of The Nasdaq Stock Market. The Company does not
reasonably anticipate that the Common Stock will be delisted by The Nasdaq Stock
Market in the twelve month period following the Closing Date based on its rules
(and interpretations thereof) as currently in effect.
f. SEC Documents; Financial Statements. Since September 1, 2002,
the Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and has filed all
registration statements and other documents required to be filed by it with the
SEC pursuant to the Securities Act (all of the foregoing filed prior to the date
hereof, and all exhibits included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being hereinafter
referred to herein as the "SEC
9
DOCUMENTS"). The Company has made available to each Purchaser via the SEC's
Electronic Data Gathering, Analysis and Retrieval (XXXXX) system true and
complete copies of the SEC Documents. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Any statements made in any such SEC Documents that are or were
required to be updated or amended under applicable law have been so updated or
amended. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
applicable with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements) and fairly present in all
material respects the consolidated financial position of the Company and its
Subsidiaries as of the dates thereof and the results of their operations and
cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments). Except as set
forth in the SEC Documents, the Company has no liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to the date of such SEC Documents and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under generally accepted accounting principles to be reflected in such
SEC Documents, which liabilities and obligations referred to in clauses (i) and
(ii), individually or in the aggregate, would not have a Material Adverse
Effect.
g. Absence of Certain Changes. Since the date of the latest
audited financial statements included within the SEC Documents, except as
specifically disclosed in the SEC Documents, (i) there has been no event,
occurrence or development that, individually or in the aggregate, has had or
that could result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company's
financial statements pursuant to generally accepted accounting principals or
required to be disclosed in filings made with the SEC, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock, and (v) the Company has not
issued any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option and stock purchase plans.
h. Absence of Litigation. Except as disclosed in the SEC
Documents, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the Company, threatened against or
affecting the Company, or any of its Subsidiaries, or any of their directors or
officers in their capacities as such which would have a Material Adverse Effect.
10
i. Intellectual Property. The Company and each of its
Subsidiaries owns or is licensed to use all patents, patent applications,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, permits, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) and other similar rights and proprietary knowledge
(collectively, "INTANGIBLES") necessary for the conduct of its business as now
being conducted and as proposed to be conducted. Except as disclosed in the SEC
Documents, neither the Company nor any of its Subsidiaries has received written
notice that it is infringing upon or in conflict with any third party
Intangibles. Except as disclosed in the SEC Documents, neither the Company nor
any of its Subsidiaries has entered into any consent, indemnification,
forbearance to xxx or settlement agreements with respect to the validity of the
Company's or such Subsidiary's ownership or right to use its Intangibles. The
Intangibles are valid and enforceable, and, without the Company intending to
allow such result, no registration relating thereto has lapsed, expired or been
abandoned or canceled or is the subject of cancellation or other adversarial
proceedings, and all applications therefor are pending and in good standing. The
Company has complied with its contractual obligations relating to the protection
of the Intangibles used pursuant to licenses with such exceptions that would not
and will not have a Material Adverse Effect. To the Company's knowledge, no
Person is infringing on or violating the Intangibles owned or used by the
Company.
j. Environment. Except as disclosed in the SEC Documents (i)
there is no environmental liability, nor factors likely to give rise to any
environmental liability, affecting any of the properties of the Company or any
of its Subsidiaries that, individually or in the aggregate, would have a
Material Adverse Effect and (ii) neither the Company nor any of its Subsidiaries
has violated any environmental law applicable to it now or previously in effect,
other than such violations or infringements that, individually or in the
aggregate, have not had and will not have a Material Adverse Effect.
k. Title. The Company and each of its Subsidiaries has good title
in fee simple to all real property and good title to all personal property owned
by it which is material to its business, free and clear of all liens,
encumbrances and defects except for such defects in title that, individually or
in the aggregate, would not have a Material Adverse Effect. Any real property
and facilities held under lease by the Company or any of its Subsidiaries are
held by the Company or such Subsidiary under valid, subsisting and enforceable
leases with such exceptions which have not had and will not have a Material
Adverse Effect.
l. Insurance. Except as disclosed in the SEC Documents, the
Company and its Subsidiaries maintain such insurance relating to their business,
operations, assets, key-employees and officers and directors as is appropriate
to their business, assets and operations, in such amounts and against such risks
as are customarily carried and insured against by owners of comparable
businesses, assets and operations, and such insurance coverages will be
continued in full force and effect to and including the Closing Date other than
those insurance coverages in respect of which the failure to continue in full
force and effect would not reasonably be expected to have a Material Adverse
Effect.
m. Acknowledgment Regarding the Purchasers' Purchase of the
Securities. The Company acknowledges and agrees that no Purchaser is acting as a
financial advisor or is acting
11
as a fiduciary of the Company (or in any similar capacity) with respect to this
Agreement or the transactions contemplated hereby, and the relationship between
the Company and the Purchasers is "arms length" and that any statement made by
any Purchaser or any of its Affiliates, representatives or agents in connection
with this Agreement and the transactions contemplated hereby is not advice or a
recommendation and is merely incidental to such Purchaser's purchase of
Securities and has not been relied upon by the Company, its officers or
directors in any way except for the Purchaser's representations and warranties
in Section 3 hereof. The Company further represents to the Purchaser that the
Company's decision to enter into this Agreement has been based solely on an
independent evaluation by the Company and its representatives.
n. No Brokers. Except as described in Schedule 4(n), all of which
are payable at the Closing, to the knowledge of the Company, to registered
broker-dealers, no brokerage or finder's fees or commissions are or will be
payable by the Company to any broker, financial advisor or consultant, finder,
placement agent, investment banker, bank or other Person with respect to the
transactions contemplated by this Agreement, and the Company has not taken any
action that would cause any Purchaser to be liable for any such fees or
commissions.
o. Tax Status. The Company and each of its Subsidiaries has made
or filed all material federal, state and local 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 or the applicable Subsidiary has
set aside on its books provisions 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 adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no material unpaid taxes claimed to be due by the
taxing authority of any jurisdiction. The Company has not executed a waiver with
respect to any statute of limitations relating to the assessment or collection
of any federal, state or local tax. None of the Company's tax returns have been
or is being audited by any taxing authority.
p. No General Solicitation. Neither the Company nor to the
knowledge of the Company any Person participating on the Company's behalf in the
transactions contemplated hereby has conducted any "general solicitation" or
"general advertising" as such terms are used in Regulation D, with respect to
any of the Securities being offered hereby; provided, however, that the Company
makes no representation or warranty with respect to the activities of any of the
placement agents or any Affiliate of any of them engaged by the Company in
connection with the transactions contemplated by this Agreement (collectively
the "PLACEMENT AGENTS").
q. Securities Laws. Neither the Company, nor any Affiliate of the
Company, nor any Person acting on its behalf or on behalf of such Affiliate,
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security under circumstances that would require
registration of the Securities being offered hereby under the Securities Act or
cause this offering of Securities to be integrated with any prior offering of
securities of the Company for purposes of the Securities Act provided, however,
that the Company makes no representation or warranty with respect to the
activities of any of the Placement Agents or any of Affiliate of any of them.
Assuming the truth and accuracy of the Purchasers' representations and
warranties, the offer, sale and delivery of shares of Common Stock upon exercise
of the Warrants will be exempt from the registration requirements of Section 5
of the Securities Act.
12
r. Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the Securities Act. The Company is not aware of any facts or circumstances
(including without limitation any required approvals or waivers of any
circumstances that may delay or prevent the obtaining of accountant's consents)
that would prohibit or delay the preparation and filing of a registration
statement on Form S-3 with respect to the Registrable Securities (as defined in
the Registration Rights Agreements) provided that such registration is not
deemed a "primary offering" in which case the Company could face potential
qualification problems regarding the requirement of having an aggregate market
value held by non-affiliates of $75 million or more.
s. Disclosure. The Company confirms that neither it nor any other
Person acting on its behalf has provided any of the Purchasers or their agents
or counsel with any information that constitutes or might constitute material,
nonpublic information. The Company understands and confirms that each of the
Purchasers will rely on the foregoing representations in effecting transactions
in securities of the Company. All disclosure provided to the Purchasers
regarding the Company, its business and the transactions contemplated hereby,
including the Schedules to this Agreement, furnished by or on behalf of the
Company are true and correct and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. No event or circumstance has occurred or information
exists with respect to the Company or any of its Subsidiaries or its or their
business, properties, prospects, operations or financial conditions, which,
under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed, except, until such time as the press release is issued as
contemplated by Section 5(i), the execution of this Agreement. The Company
acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than
those specifically set forth in Section 3.
t. Solvency. Based on the financial condition of the Company as
of the Closing Date, (i) the Company's fair saleable value of its assets exceeds
the amount that will be required to be paid on or in respect of the Company's
existing debts and other liabilities (including known contingent liabilities) as
they mature; (ii) the Company's assets do not constitute unreasonably small
capital to carry on its business for the current fiscal year as now conducted
and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company,
and projected capital requirements and capital availability thereof; and (iii)
the current cash flow of the Company, together with the proceeds the Company
would receive, were it to liquidate all of its assets, after taking into account
all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its debt when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they
mature (taking into account the timing and amounts of cash to be payable on or
in respect of its debt).
u. Internal Accounting Controls. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability,
13
(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.
v. Transactions With Affiliates and Employees. Except as set
forth on Schedule 4(v), none of the officers or directors of the Company and, to
the knowledge of the Company, none of the employees of the Company is presently
a party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
5. COVENANTS AND OTHER AGREEMENTS.
a. Satisfaction of Conditions. The parties shall use their
reasonable efforts to satisfy in a timely manner each of the conditions set
forth in Section 6 and Section 7 of this Agreement.
b. Form D; Blue Sky Laws. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D and to provide a
copy thereof to each Purchaser promptly after such filing. The Company shall, on
or before the Closing Date, take such action as the Company shall reasonably
determine is necessary to qualify the Securities for sale to the Purchasers
pursuant to this Agreement under applicable securities or "blue sky" laws of the
states of the United States or obtain exemption therefrom, and shall provide
evidence of any such action so taken to each Purchaser on or prior to the
Closing Date.
c. Reporting Status. So long as a Purchaser beneficially owns any
Securities or has the right to acquire any Securities pursuant to this
Agreement, the Company shall use its reasonable efforts to timely file all
reports required to be filed with the SEC pursuant to the Exchange Act, and
shall not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder
would permit such termination.
d. Use of Proceeds. The Company shall use the net proceeds from
the sale of the Shares, the Warrants and the Additional Investment Rights,
including proceeds received upon exercise of the Additional Investment Rights,
for general corporate purposes and working capital, but in no event shall the
Company use such net proceeds to repurchase any outstanding securities of the
Company.
e. Financial Information. For the Registration Period (as defined
in the Registration Rights Agreements), the Company agrees to send to each
Purchaser within ten days after the filing with the SEC, to the extent not
available through the SEC's XXXXX system, a copy of its Annual Report on Form
10-K, its Quarterly Reports on Form 10-Q, its proxy and information statements
and any Current Reports on Form 8-K.
f. Reservation of Shares. The Company has and shall at all times
have authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to
14
provide for the issuance of the Shares as provided in Section 2 hereof, and the
full exercise of the Warrants, the Additional Investment Rights and the
Additional Investment Right Warrants and the issuance of the Warrant Shares, the
Additional Investment Right Shares and the Additional Investment Right Warrants
Shares in connection therewith and as otherwise required hereby and thereby. The
Company shall not reduce the number of shares of Common Stock reserved for
issuance under this Agreement (except as a result of the issuance of the Shares
hereunder), the Warrants (except as a result of the issuance of the Warrant
Shares upon the exercise of the Warrants), the Additional Investment Rights
(except as a result of the issuance of Additional Investment Right Shares upon
exercise of the Additional Investment Rights and except as a result of the
issuance of the Additional Investment Right Warrant Shares upon the exercise of
the Additional Investment Right Warrants) or the Registration Rights Agreements,
without the consent of the Purchasers.
g. Listing. The Company will apply for the listing of the Shares,
Warrant Shares, the Additional Investment Right Shares and the Additional
Investment Right Warrants Shares, in each case, upon each national securities
exchange and automated quotation system, if any, upon which shares of Common
Stock are then listed or quoted and shall maintain, so long as any other shares
of Common Stock shall be so listed, such listing of all Shares and Additional
Investment Rights Shares from time to time issuable hereunder and under the
Additional Investment Rights, respectively, and all Warrant Shares and
Additional Investment Right Warrant Shares from time to time issuable upon
exercise of the Warrants and the Additional Investment Right Warrants,
respectively. The Company shall use its reasonable efforts to include its shares
of Common Stock in The Nasdaq Stock Market at the earliest practical date and,
in any event, by the date the first registration statement covering the resale
of the Shares is declared effective by the SEC and will comply in all respects
with the Company's reporting, filing and other obligations under the bylaws or
rules of The Nasdaq Stock Market.
h. No Integrated Offerings. The Company shall not make any offers
or sales of any security (other than the Securities) under circumstances that
would require registration of the Securities being offered or sold hereunder
under the Securities Act or cause this offering of Securities to be integrated
with any other non-exempt offering of securities other than the Additional
Investment Rights and securities issuable thereunder, warrants issuable to any
of the Placement Agents in connection with the transactions contemplated by this
Agreement and the shares of common stock issuable upon exercise of such
warrants.
i. Securities Laws Disclosure; Publicity. The Company shall, on
or before 9:30 a.m., Eastern Standard Time, on September 30, issue a press
release reasonably acceptable to the Purchasers disclosing the transactions
contemplated hereby. No later than the first Business Day following the Closing
Date, the Company shall file a Current Report on Form 8-K with the SEC (the "8-K
FILING") describing the transactions contemplated by the Transaction Documents
and including as exhibits to such Current Report on Form 8-K this Agreement and
the form of Warrants, in the form required by the Exchange Act. Thereafter, the
Company shall timely make any filings and notices required by the SEC or
applicable law with respect to the transactions contemplated hereby and provide
copies thereof to the Purchasers promptly after filing. Except with respect to
the 8-K Filing and the press release referenced above (a copy of which will be
provided to the Purchasers for their review as early as practicable prior to its
filing), the Company shall, at least two Business Days prior to the filing or
dissemination of any disclosure required by this paragraph, provide a copy
thereof to the Purchasers for their review. The
15
Company and the Purchasers shall consult with each other in issuing any press
releases or otherwise making public statements or filings and other
communications with the SEC or any regulatory agency or The Nasdaq Stock Market
with respect to the transactions contemplated hereby, and neither party shall
issue any such press release or otherwise make any such public statement, filing
or other communication without the prior consent of the other, except if such
disclosure is required by law, in which case the disclosing party shall promptly
provide the other party with prior notice of such public statement, filing or
other communication. Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the SEC or any regulatory agency or The Nasdaq
Stock Market, without the prior written consent of such Purchaser, except to the
extent such disclosure (but not any disclosure as to the controlling Persons
thereof) is required by law or The Nasdaq Stock Market regulations, in which
case the Company shall provide the Purchasers with prior notice of such
disclosure. The Company shall not, and shall cause each of its Subsidiaries and
its and each of their respective officers, directors, employees and agents not
to, provide any Purchaser with any material nonpublic information regarding the
Company or any of its Subsidiaries from and after the filing of the 8-K Filing
without the express written consent of such Purchaser. No Purchaser shall have
any liability to the Company, its Subsidiaries, or any of its or their
respective officers, directors, employees, stockholders or agents for any such
disclosure. Subject to the foregoing, neither the Company nor any Purchaser
shall issue any press releases or any other public statements with respect to
the transactions contemplated hereby; provided, however, that the Company shall
be entitled, without the prior approval of any Purchaser, to make any press
release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith and
(ii) as is required by applicable law and regulations (provided that in the case
of clause (i) the Purchasers shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its release).
Each press release disseminated in the United States to the public generally
during the 12 months preceding the date of this Agreement did not at the time of
release contain any untrue statement of a material fact.
j. Furnishing of Information. As long as any Purchaser owns
Securities, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company after the date hereof pursuant to the
Securities and Exchange Act of 1933, as amended (the "EXCHANGE ACT"). Upon the
request of any Purchaser, the Company shall deliver to such Purchaser a written
certification of a duly authorized officer as to whether it has complied with
the preceding sentence. During the earlier of (i) the date two years from the
Closing Date or (ii) as long as any Purchaser owns Securities, if the Company is
not required to file reports pursuant to such laws, it will prepare and furnish
to the Purchasers and make publicly available in accordance with paragraph (c)
of Rule 144 such information as is required for the Purchasers to sell the
Securities under Rule 144. The Company further covenants that it will take such
further action as any holder of Securities may reasonably request to satisfy the
provisions of Rule 144 applicable to the issuer of securities relating to
transactions for the sale of securities pursuant to Rule 144.
k. Integration. The Company shall not, and shall use its best
efforts to ensure that no Affiliate of the Company shall, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in Section 2 of the Securities Act) that would be integrated with the
offer or sale of the Securities in a manner that would require the registration
under the Securities Act of the sale of the Securities to the Purchasers, or
that would be integrated with the
16
offer or sale of the Securities for purposes of the rules and regulations of The
Nasdaq Stock Market.
l. Subsequent Placements.
(1) From the date hereof until the Registration Statement (as
defined in the Registration Rights Agreements) is declared effective by the SEC
(the "BLOCKOUT PERIOD"), the Company will not, directly or indirectly, offer,
sell, grant any option to purchase, or otherwise dispose of (or announce any
offer, sale, grant or any option to purchase or other disposition of) any of its
or the Subsidiaries' equity or equity equivalent securities, including without
limitation any debt, preferred stock or other instrument or security that is, at
any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for Common Stock or Common Stock Equivalents (any
such offer, sale, grant, disposition or announcement being referred to as a
"SUBSEQUENT PLACEMENT"). The restrictions contained in this Section 5(1) shall
not apply to Excluded Stock (as defined below).
(2) From the end of the Blockout Period until the one year
anniversary thereof, the Company will not, directly or indirectly, effect any
Subsequent Placement unless the Company shall have first complied with this
Section 5(1)(2).
(i) The Company shall deliver to each Purchaser a written notice
(the "OFFER") of any proposed or intended issuance or sale or exchange of the
securities being offered (the "OFFERED SECURITIES") in a Subsequent Placement,
which Offer shall (w) identify and describe the Offered Securities, (x) describe
the price and other terms upon which they are to be issued, sold or exchanged,
and the number or amount of the Offered Securities to be issued, sold or
exchanged, (y) identify the Persons or entities (if known) to which or with
which the Offered Securities are to be offered, issued, sold or exchanged and
(z) offer to issue and sell to or exchange with each Purchaser the Offered
Securities, based on such Purchaser's pro rata portion of the aggregate purchase
price paid by the Purchasers for all of the Shares purchased hereunder (the
"BASIC AMOUNT"), and with respect to each Purchaser that elects to purchase its
Basic Amount, any additional portion of the Offered Securities attributable to
the Basic Amounts of other Purchasers as such Purchaser shall indicate it will
purchase or acquire should the other Purchasers subscribe for less than their
Basic Amounts (the "UNDERSUBSCRIPTION AMOUNT").
(ii) To accept an Offer, in whole or in part, a Purchaser must
deliver a written notice to the Company prior to the end of the five (5)
Business Day period of the Offer, setting forth the portion of the Purchaser's
Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall
elect to purchase all of its Basic Amount, the Undersubscription Amount, if any,
that such Purchaser elects to purchase (in either case, the "NOTICE OF
ACCEPTANCE"). If the Basic Amounts subscribed for by all Purchasers are less
than the total of all of the Basic Amounts, then each Purchaser who has set
forth an Undersubscription Amount in its Notice of Acceptance shall be entitled
to purchase, in addition to the Basic Amounts subscribed for, the
Undersubscription Amount it has subscribed for; provided, however, that if the
Undersubscription Amounts subscribed for exceed the difference between the total
of all the Basic Amounts and the Basic Amounts subscribed for (the "AVAILABLE
UNDERSUBSCRIPTION AMOUNT"), each Purchaser who has subscribed for any
Undersubscription Amount shall be entitled to purchase on that portion of the
Available Undersubscription Amount as the Basic Amount of such Purchaser bears
to the
17
total Basic Amounts of all Purchasers that have subscribed for Undersubscription
Amounts, subject to rounding by the Board of Directors to the extent its deems
reasonably necessary
(iii) The Company shall have ten (10) Business Days from the
expiration of the period set forth in Section 5(1)(2)(ii) above to issue, sell
or exchange all or any part of such Offered Securities as to which a Notice of
Acceptance has not been given by the Purchasers (the "REFUSED SECURITIES"), but
only to the offerees described in the Offer (if so described therein) and only
upon terms and conditions (including, without limitation, unit prices and
interest rates) that are not more favorable to the acquiring Person or Persons
or less favorable to the Company than those set forth in the Offer.
(iv) In the event the Company shall propose to sell less than all
the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 5(1)(2)(iii) above), then each Purchaser may, at its sole
option and in its sole discretion, reduce the number or amount of the Offered
Securities specified in its Notice of Acceptance to an amount that shall be not
less than the number or amount of the Offered Securities that the Purchaser
elected to purchase pursuant to Section 5(l)(2) (ii) above multiplied by a
fraction, (i) the numerator of which shall be the number or amount of Offered
Securities the Company actually proposes to issue, sell or exchange (including
Offered Securities to be issued or sold to Purchasers pursuant to Section
5(1)(2) (ii) above prior to such reduction) and (ii) the denominator of which
shall be the original amount of the Offered Securities. In the event that any
Purchaser so elects to reduce the number or amount of Offered Securities
specified in its Notice of Acceptance, the Company may not issue, sell or
exchange more than the reduced number or amount of the Offered Securities unless
and until such securities have again been offered to the Purchasers in
accordance with Section 5(l)(2)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or
less than all of the Refused Securities, the Purchasers shall acquire from the
Company, and the Company shall issue to the Purchasers, the number or amount of
Offered Securities specified in the Notices of Acceptance, as reduced pursuant
to Section 5(1)(2)(iv) above if the Purchasers have so elected, upon the terms
and conditions specified in the Offer. The purchase by the Purchasers of any
Offered Securities is subject in all cases to the preparation, execution and
delivery by the Company and the Purchasers of a purchase agreement relating to
such Offered Securities reasonably satisfactory in form and substance to the
Purchasers and their respective counsel.
(vi) Any Offered Securities not acquired by the Purchasers or other
Persons in accordance with Section 5(1)(2)(iii) above may not be issued, sold or
exchanged until they are again offered to the Purchasers under the procedures
specified in this Agreement.
(vii) The restrictions contained in paragraphs 5(1)(1) and (2) of
this Section shall not apply to any of the following "EXCLUDED SECURITIES:" (A)
the Shares, (B) the Warrants, (C) the Additional Investment Rights, (D) the
Additional Investment Right Warrants, (E) any warrants issued to any of the
Placement Agents, (F) any shares of Common Stock issued upon exercise of the
Warrants, the Additional Investment Rights, the Additional Investment Right
Warrants or any warrants issued to any of the Placement Agents or (G) any Common
Stock issued (1) upon exercise or conversion of any options or other securities
described in Schedule 4(c) (provided that such exercise or conversion occurs in
accordance with the terms thereof, without amendment or modification, and that
the applicable exercise or conversion price or ratio is described in such
18
schedule), (2) in connection with any grant of options, warrants or the issuance
of additional securities to employees, officers, directors or consultants of the
Company pursuant to a stock option plan or stock purchase plan duly adopted by
the Company's board of directors or in respect of the issuance of Common Stock
upon exercise of any such options or warrants, (C) pursuant to a bona fide firm
commitment underwritten public offering through any investment banker (excluding
any equity line) in an aggregate offering amount greater than $5,000,000, or (D)
in connection with a bona fide joint venture or development agreement or
strategic partnership or to an independent Person, the primary purpose of which
is not to raise equity capital.
m. Reimbursement. If any Purchaser or any of its Affiliates or
any officer, director, partner, controlling Person, employee or agent of a
Purchaser or any of its Affiliates (a "RELATED PERSON") becomes involved in any
capacity in any Proceeding brought by or against any Person in connection with
or as a result of any misrepresentation, breach or inaccuracy of any
representation, warranty, covenant or agreement made by the Company in any
Transaction Documents, the Company will indemnify and hold harmless such
Purchaser or Related Person for its reasonable legal and other expenses
(including the costs of any investigation, preparation and travel) and for any
Losses incurred in connection therewith, as such expenses or Losses are
incurred, excluding only Losses that result directly from such Purchaser's or
Related Person's gross negligence or willful misconduct. The conduct of any
Proceedings for which indemnification is available under this paragraph shall be
governed by Section 6 of the Registration Rights Agreements. The indemnification
obligations of the Company under this paragraph shall be in addition to any
liability that the Company may otherwise have and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Purchasers and any such Related Persons. The Company also
agrees that neither the Purchasers nor any Related Persons shall have any
liability to the Company or any Person asserting claims on behalf of or in right
of the Company in connection with or as a result of the transactions
contemplated by the Transaction Documents, except to the extent that any Losses
incurred by the Company result from the gross negligence or willful misconduct
of the applicable Purchaser or Related Person in connection with such
transactions. If the Company breaches its obligations under any Transaction
Document, then, in addition to any other liabilities the Company may have under
any Transaction Document or applicable law, the Company shall pay or reimburse
the Purchasers on demand for all costs of collection and enforcement (including
reasonable attorneys fees and expenses). Without limiting the generality of the
foregoing, the Company specifically agrees to reimburse the Purchasers on demand
for all costs of enforcing the indemnification obligations in this paragraph.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell Shares,
Warrants and Additional Investment Rights to a Purchaser at the Closing
hereunder is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions thereto; provided, however, that these conditions
are for the Company's sole benefit and may be waived by the Company at any time
in its sole discretion.
a. The applicable Purchaser shall have executed the signature
page to this Agreement and the Registration Rights Agreements, and delivered the
same to the Company.
19
b. The applicable Purchaser shall have delivered such Purchaser's
Investment Amount in accordance with Section 2(b) above.
c. The representations and warranties of the applicable Purchaser
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 that speak as of a specific date, which representations and
warranties shall be true and correct as of such date), and the applicable
Purchaser shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the applicable Purchaser at or prior to
the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE SHARES AND
WARRANTS.
The obligation of each Purchaser hereunder to purchase Shares, Warrants
and Additional Investment Rights to be purchased by it hereunder is subject to
the satisfaction, at or before the Closing Date, of each of the following
conditions, provided, however, that these conditions are for such Purchaser's
sole benefit and may be waived by such Purchaser at any time in such Purchaser's
sole discretion:
a. The Company shall have executed the signature pages to this
Agreement and the Registration Rights Agreements, and delivered the same to the
Purchaser.
b. The Company shall have delivered to the Purchaser duly
executed certificates representing the number of Shares, duly executed Warrants
and duly executed Additional Investment Rights as provided in Section 2(b)
above.
c. 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 that speak as of a specific date, which representations and
warranties shall be true and correct as of such date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing Date. The Purchaser
shall have received a certificate, executed on behalf of the Company by its
Chief Executive Officer or Chief Financial Officer, dated as of the Closing
Date, to the foregoing effect and attaching true and correct copies of the
resolutions adopted by the Company's Board of Directors authorizing the
execution, delivery and performance by the Company of its obligations under this
Agreement, the Warrants, the Additional Investment Rights and the Registration
Rights Agreements.
20
d. No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
e. From the date of this Agreement through the Closing Date,
there shall not have occurred any Material Adverse Effect.
f. The Purchasers shall have received an opinion of the Company's
counsel, dated as of the Closing Date, relating to the matters set forth in
Exhibit F attached hereto.
g. The Company shall have delivered a duly executed Transfer
Agent Instructions acknowledged by the Transfer Agent.
8. GOVERNING LAW MISCELLANEOUS.
a. Governing Law; Venue; Waiver Of Jury Trail. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE COMPANY AND PURCHASERS HEREBY IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE
BROUGHT BY THE COMPANY OR ANY PURCHASER HEREUNDER, IN CONNECTION HEREWITH OR
WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH
RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS), AND HEREBY
IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY OR ANY PURCHASER, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR
PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND PURCHASERS HEREBY WAIVE ALL
RIGHTS TO A TRIAL BY JURY.
b. Counterparts. This Agreement may be executed in two or more
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. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission
21
of a copy of this Agreement bearing the signature of the party so delivering
this Agreement. In the event any signature is delivered by facsimile
transmission, the party using such means of delivery shall cause the manually
executed Execution Page(s) hereof to be physically delivered to the other party
within five (5) days of the execution hereof.
c. Headings. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. 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 or the validity or enforceability of this Agreement
in any other jurisdiction.
e. Entire Agreement; Amendments; Waiver. 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 Purchasers
make any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Company and, by the Purchasers as
provided in Section 8(m) hereof. Notwithstanding the preceding sentence, the
parties hereto recognize that certain amendments may be requested by the Nasdaq
Trading and Market Services in order that the Shares and Warrant Shares issued
hereunder be accepted for listing on The Nasdaq Stock Market and agree that
approval for such amendments shall be given. Any waiver by the Purchasers, on
the one hand, or the Company, on the other hand, of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision of or any breach of any other provision of this
Agreement. The failure of the Purchasers, on the one hand, or the Company, on
the other hand to insist upon strict adherence to any term of this Agreement on
one or more occasions shall not be considered a waiver or deprive that party of
the right thereafter to insist upon strict adherence to that term or any other
term of this Agreement.
f. Notices. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
If to the Company:
BAM! Entertainment, Inc.
000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
President
22
With a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
00000 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone (000) 000-0000
Fax (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Purchaser, to the address set forth under the Purchaser's name on the
Execution Page hereto executed by such Purchaser.
Each party hereto may from time to time change its address or facsimile number
for notices under this Section 8(f) by giving at least ten (10) days' prior
written notice of such changed address or facsimile number, in the case of the
Purchasers to the Company, and in the case of the Company to all of the
Purchasers.
g. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Purchasers. Any Purchaser may
assign its rights under this Agreement to any Person to whom such Purchaser
assigns or transfers any Securities, provided such transferee agrees in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the "Purchasers." Notwithstanding anything to the contrary
herein, Securities may be assigned to any Person in connection with a bona fide
margin account or other loan or financing arrangement secured by such
Securities.
h. Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person, except that each Related Person is an intended third party
beneficiary and (in each case) may enforce the indemnity provisions directly
against the parties with obligations thereunder.
i. Survival. The representations and warranties of the Company
and the agreements and covenants of the Company shall survive the Closing
notwithstanding any due diligence investigation conducted by or on behalf of the
Purchasers. Moreover, none of the representations and warranties made by the
Company herein shall act as a waiver of any rights or remedies a Purchaser may
have under applicable federal or state securities laws.
j. 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.
k. Termination. In the event that the Closing Date shall not have
occurred on or before October 4, 2003, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date. Notwithstanding
any termination of this Agreement, any party
23
not in breach of this Agreement shall preserve all rights and remedies it may
have against another party hereto for a breach of this Agreement prior to or
relating to the termination hereof.
l. Joint Participation in Drafting. Each party to this Agreement
has participated in the negotiation and drafting of this Agreement, the
Registration Rights Agreements and the Warrants. As such, the language used
herein and therein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement, the Registration Rights
Agreements or the Warrants.
m. Determinations. All consents, approvals and other
determinations to be made by the Purchasers pursuant to this Agreement and all
waivers and amendments to or of any provisions in this Agreement prior to the
Closing Date to be binding upon a Purchaser shall be made by such Purchaser and
except as otherwise expressly provided herein, all consents, approvals and other
determinations to be made by the Purchasers pursuant to this Agreement and all
waivers and amendments to or of any provisions in this Agreement after the
Closing Date shall be made by Purchasers that have invested more than fifty-one
percent (51%) of the aggregate Investment Amounts invested by all Purchasers.
n.iii Fees and Expenses. At the Closing, the Company shall pay to
Vertical Ventures, LLC an aggregate of $20,000 for their legal fees and expenses
incurred in connection with the preparation and negotiation of the Transaction
Documents. In lieu of the foregoing payment, Vertical Ventures, LLC may retain
such amount at the Closing or require the Company to pay such amount directly to
Proskauer Rose LLP. Except as expressly set forth in the Transaction Documents
to the contrary, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and
performance of this Agreement. The Company shall pay all transfer agent fees,
stamp taxes and other taxes and duties levied in connection with the issuance of
the Securities.
o. Rescission and Withdrawal Right. Notwithstanding anything to
the contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Purchaser exercises a right, election,
demand or option under a Transaction Document and the Company does not timely
perform its related obligations within the periods therein provided, then such
Purchaser may rescind or withdraw, in its sole discretion from time to time upon
written notice to the Company, any relevant notice, demand or election in whole
or in part without prejudice to its future actions and rights.
p. Replacement of Securities. If any certificate or instrument
evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested. The applicants for a new certificate or instrument
under such circumstances shall also pay any reasonable third-party costs
associated with the issuance of such replacement Securities.
24
q. Remedies. In addition to being entitled to exercise all rights
provided herein or granted by law, including recovery of damages, each of the
Purchasers and the Company will be entitled to specific performance under the
Transaction Documents. The parties agree that monetary damages may not be
adequate compensation for any loss incurred by reason of any breach of
obligations described in the foregoing sentence and hereby agrees to waive in
any action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
r. Payment Set Aside. To the extent that the Company makes a
payment or payments to any Purchaser hereunder or pursuant to the Warrants or
any Purchaser enforces or exercises its rights hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, recovered from, disgorged by or are required to be refunded, repaid
or otherwise restored to the Company by a trustee, receiver or any other Person
under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent of any
such restoration the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
s. Adjustments in Share Numbers and Prices. In the event of any
stock split, subdivision, dividend or distribution payable in shares of Common
Stock (or other securities or rights convertible into, or entitling the holder
thereof to receive directly or indirectly shares of Common Stock), combination
or other similar recapitalization or event occurring after the date hereof, each
reference in any Transaction Document to a number of shares or a price per share
shall be amended to appropriately account for such event.
t. Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under any Transaction Document. The decision of each Purchaser to
purchase Shares pursuant to this Agreement has been made by such Purchaser
independently of any other Purchaser and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or of the Subsidiary which may have been
made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser or any of its agents or employees shall have any
liability to any other Purchaser (or any other Person) relating to or arising
from any such information, materials, statements or opinions. Nothing contained
herein or in any Transaction Document, and no action taken by any Purchaser
pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser acknowledges that no other Purchaser has
acted as agent for such Purchaser in connection with making its investment
hereunder and that no other Purchaser will be acting as agent of such Purchaser
in connection with monitoring its investment hereunder. Each Purchaser shall be
entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not
25
be necessary for any other Purchasers to be joined as an additional party in any
proceeding for such purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
IN WITNESS WHEREOF, the undersigned Purchasers and the Company have
caused this Agreement to be duly executed as of the date first above written.
COMPANY:
BAM! ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CEO
27
THE PURCHASERS: VERTICAL VENTURES, LLC
By: /s/ XXXXXX XXXXXXXXX
-----------------------------------
Name: XXXXXX XXXXXXXXX
Title: Partner
Investment Amount: $ 758,000
Residence: 000, XXXXXXXXX XXXXXX, 00xx XX.
XX, XX 00000
Address:
-------------------------------
---------------------------------------
---------------------------------------
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
Attention: XXXXXX XXXXXXXXX
Email Address:
-------------------------
27
THE PURCHASERS:
CRESCENT INTERNATIONAL LTD
By: /s/ MAXI BREZZI
-----------------------------------
Name: MAXI BREZZI
Title: AUTHORIZED SIGNATORY
Investment Amount: $315,000
Residence: BERMUDA
Address: X/X XXXXXXXXXX(XXXXXXXXXXX)XX
00 XX.XXXXX-XXXXX
XX 0000 XXXXXXXX, XXXXXX
XXXXXXXXXXX
Telephone No.: ( )x0000 0000000
Telecopy No.: ( )x0000 00000000
Attention: MCRAW/M.BREZZI
Email Address: XXXXXXX@XXXXXXXX.XXX
with copies of all notices to:
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
Telephone No.: ( )
--------------------
Telecopy No.: ( )
--------------------
Attention:
-----------------------------
Email Address:
-------------------------
THE PURCHASERS:
SMITHFIELD FIDUCIARY LLC
By: /s/ Xxxx X.Chill
-------------------------------------
Name : Xxxx X.Chill
Title: Authorized Signatory
Investment Amount: $225,000.00
Residence: Cayman Islands
Address: c/o Highbridge Capital
Management, LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
Attention: Xxx X. Xxxxxx / Xxxx X. Chill
Email Address: xxx.xxxxxx@xxxxx.xxx
xxxx.xxxxx@xxxxx.xxx
28
THE PURCHASERS:
Truk Opportunity Fund, LLC
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Principal
Investment Amount: $ 22,080
Residence: ----------------
---------------------------
---------------------------
Address: 00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, X.X. 00000
---------------------------
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Email Address:---------------
with copies of all notices to:
Xxxx Xxxx
XXxxx@XXXXxxxxxx.xxx
----------------------------
----------------------------
Telephone No.: (000)000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxx
Email Address: XXxxx@XXXXxxxxxx.xxx
29
THE PURCHASERS:
XXX Securities, LLC
By: XXX Securities, LLC
------------------
Name: Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
Title: CFO
Investment Amount: $ 85,440=89,000 Shares
Residence:
000 Xxxxxxxx, 0xx Xxxxx
XX, XX 00000
Address:
000 Xxxxxxxx, 0xx Xxxxx
XX, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Email Address: xxxxxxx@xxx.xxx
with copies of all notices to:
XXX Securities, LLC
000 Xxxxxxxx, 0xx Xxxxx
XX, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Email Address: xxxxxxx@xxx.xxx
30
THE PURCHASERS:
AIG DKR SOUNDSHORE PRIVATE
INVESTORS HOLDING FUND LTD.
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: Alternate Director
Investment Amount: $ 96,000
Address: 0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
Email Address: xxxxxxx@xxxxxxxxxx.xxx
with copies of all notices to:
Xxxx Xxxxxxxxxx
(same address as above)
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
31
THE PURCHASERS:
OTARE Investments LLC
By: /s/ [ILLEGIBLE]
------------------
Name:
-----------------
Title: General Counsel
Investment Amount: $ 300,000-288,000 Shares
Residence:------------------
----------------------------
----------------------------
Address: Xxx Xxxxxxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxxx/Xxxx Xxxxxxx
Email Address: Xxxx.Xxxxxx@xx.xxx
Xxxx.Xxxxxxx@xx.xxx
with copies of all notices to:
----------------------------
----------------------------
----------------------------
----------------------------
Telephone No.: ( ) -------
Telecopy No.: ( ) -------
Attention: -----------------
Email Address:--------------
32
