SECURITIES PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT
(the
"Agreement"),
dated
as of November 15, 2006, by and among Applied Spectrum Technologies, Inc.,
a
Delaware corporation, with headquarters located at 000X Xxxxxxxxx Xxxxxxxxx,
Xxxxx 00, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company"),
Ever
Leader Holdings, Limited, a company incorporated under the laws of Hong Kong
SAR
("Ever
Leader")
and
the investors listed on the Schedule of Buyers attached hereto (individually,
a
"Buyer"
and
collectively, the "Buyers").
WHEREAS:
A. Pursuant
to an Exchange Agreement (the "Exchange
Agreement"),
dated
as of September 7, 2006, by and among the Company, Ever Leader KI Equity
Partners III, LLC and each of the stockholders of Ever Leader, Ever Leader
will
become a wholly-owned subsidiary of the Company (the "Acquisition").
The
targeted closing date for the Acquisition is November 15,
2006, but in any event on or prior to December 15, 2006 (the “Closing
Date”).
Simultaneously with the consummation of the Acquisition, the Company shall
change its name from Applied Spectrum Technologies, Inc. to Xxxxx
Pharmaceuticals, Inc. All references herein to the Company after consummation
of
the Acquisition shall be deemed to be references to Xxxxx Pharmaceutical
Inc.
B. The
Company and each Buyer is executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Section 4(2) of
the
Securities Act of 1933, as amended (the "1933
Act"),
and
Rule 506 of Regulation D ("Regulation D")
as
promulgated by the United States Securities and Exchange Commission (the
"SEC")
under
the 1933 Act.
C. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, (i) that aggregate number of Units set
forth opposite such Buyer's name in column (3) on the Schedule of Buyers
attached hereto (which aggregate number for all Buyers shall be 480. As used
herein, a "Unit" shall consist of 54,087 shares (the shares of the Common Stock
to be issued hereunder, the "Common
Shares")
of the
Company's common stock, par value $0.001 per share (the "Common
Stock")
(the
shares of Common Stock to be issued hereunder, the "Common
Shares")
and
(ii) warrants, in substantially the form attached hereto as Exhibit
A
(the
"Warrants"),
to
acquire up to 54,087 additional shares of Common Stock (as exercised,
collectively, the " Warrant
Shares").
D. Contemporaneously
with the Closing, the parties hereto will execute and deliver a Registration
Rights Agreement, substantially in the form attached hereto as Exhibit
B
(the
"Registration
Rights Agreement"),
pursuant to which the Company will agree to provide certain registration rights
with respect to the Registrable Securities (as defined in the Registration
Rights Agreement) under the 1933 Act and the rules and regulations promulgated
thereunder, and applicable state securities laws.
E. The
Units, the Common Shares, the Warrants and the Warrant Shares collectively
are
referred to herein as the "Securities".
F. The
Company, Ever Leader, the Placement Agent (as defined below) and Xxxxxx
Street State Bank (the
“Escrow
Agent”)
have entered into an Escrow Agreement in the form attached hereto as
Exhibit
C
(the “Escrow
Agreement”)
to provide for the safekeeping of funds received (the "Escrow
Funds")
in connection with the Offering. Such
funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction of the
Company’s closing conditions.
G. The
Company and Computershare Trust Company, Inc. (the "Make
Good Escrow Agent")
will
enter into that certain Make Good Agreement by and among the Placement
Agent, the Company, its current and future subsidiaries, Ever Leader, its direct
and indirect subsidiaries, Xx. Xxxxxx Xxx, Ms. Xxx Xx and Moveup Investments
Limited in the form attached hereto as Exhibit
H
(the
"Make
Good Agreement").
H. In
connection with the Make Good Agreement, the Company, Ever Leader, its direct
and indirect subsidiaries, Xx. Xxxxxx Xxx, Ms. Xxx Xx, Moveup Investments
Limited the Placement Agent and the Make Good Escrow Agent will
enter into that certain Make Good Escrow Agreement in the form attached to
as
Exhibit
I
(the
"Make
Good Escrow Agreement").
NOW,
THEREFORE,
the
Company and each Buyer hereby agree as follows:
1. PURCHASE
AND SALE OF UNITS.
(a) Purchase
of Units.
(i) Units. Subject
to the satisfaction (or waiver) of the conditions set forth in Sections 6 and
7
below, the Company shall issue and sell to each Buyer, and each Buyer severally,
but not jointly, agrees to purchase from the Company on the Closing Date (as
defined below), a number of Units as is set forth opposite such Buyer's name
in
column (3) on the Schedule of Buyers.
(ii) Closing.
The
date and time of the Closing shall be 10:00 a.m., New York City time, on the
Closing Date (or such later date as is mutually agreed to by the Company and
each Buyer) after notification of satisfaction (or waiver) of the conditions
to
the Closing set forth in Sections 6 and 7 below, at the offices of Xxxxxxx
Xxxx
& Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(iii) Purchase
Price.
The
aggregate purchase price for the Units to be purchased by each such Buyer at
the
Closing (the "Purchase
Price")
shall
be the amount set forth opposite each Buyer's name in column (5) of the Schedule
of Buyers. Each Buyer shall pay $25,000 for each Unit to be purchased by such
Buyer at the Closing.
(b) Form
of Payment.
No
later than five (5) Business Days prior to the Closing Date, each Buyer shall
deposit with the Escrow Agent its Purchase Price for the Units to be sold by
the
Company to such Buyer, by wire transfer of immediately available funds in
accordance with the Escrow Agent's written wire instructions. On the Closing
Date, (i) the Escrow Agent shall release the Escrow Funds to the Company in
accordance with the terms of the Escrow Agreement and (ii) the Company
shall deliver to each Buyer the Common Shares and Warrants comprising the Units
(allocated in the numbers as such Buyer shall request) which such Buyer is
then
purchasing hereunder duly executed on behalf of the Company and registered
in
the name of such Buyer or its designee.
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2. BUYER'S
REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants with respect to only
itself that:
(a) No
Sale or Distribution.
Such
Buyer is acquiring the Units and the Common Shares and Warrants comprising
the
Units, and upon exercise of the Warrants (other than pursuant to a Cashless
Exercise (as defined in the Warrants)) will acquire the Warrant Shares issuable
upon exercise of the Warrants, for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution thereof,
except pursuant to sales registered or exempted under the 1933 Act; provided,
however, that by making the representations herein, such Buyer does not agree
to
hold any of 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 under the 1933 Act and
pursuant to the applicable terms of the Transaction Documents (as defined in
Section 3(b)). Such Buyer is acquiring the Securities hereunder in the ordinary
course of its business. Such Buyer does not presently have any agreement or
understanding, directly or indirectly, with any Person to distribute any of
the
Securities.
(b) Accredited
Investor Status.
Such
Buyer is an "accredited investor" as that term is defined in Rule 501(a) of
Regulation D.
(c) Reliance
on Exemptions.
Such
Buyer understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
upon the truth and accuracy of, and such Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Buyer set forth herein in order to determine the availability of such
exemptions and the eligibility of such Buyer to acquire the
Securities.
(d) Information.
Such
Buyer and its advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and materials relating
to the offer and sale of the Securities that have been requested by such Buyer.
Such Buyer and its advisors, if any, have been afforded the opportunity to
ask
questions of the Company. Neither such inquiries nor any other due diligence
investigations conducted by such Buyer or its advisors, if any, or its
representatives shall modify, amend or affect such Buyer's right to rely on
the
Company's representations and warranties contained herein. Such Buyer
understands that its investment in the Securities involves a high degree of
risk
and is able to afford a complete loss of such investment. Such Buyer has sought
such accounting, legal and tax advice as it has considered necessary to make
an
informed investment decision with respect to its acquisition of the
Securities.
(e) No
Governmental Review.
Such
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
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(f) Transfer
or Resale.
Such
Buyer understands that except as provided in the Registration Rights Agreement:
(i) the Securities have not been and are not being registered under the 1933
Act
or any state securities laws, and may not be offered for sale, sold, assigned
or
transferred unless (A) subsequently registered thereunder, (B) such Buyer shall
have delivered to the Company an opinion of counsel, in a generally acceptable
form, to the effect that such Securities to be sold, assigned or transferred
may
be sold, assigned or transferred pursuant to an exemption from such
registration, or (C) such Buyer provides the Company with reasonable assurance
that such Securities can be sold, assigned or transferred pursuant to Rule
144
or Rule 144A promulgated under the 1933 Act, as amended (or a successor rule
thereto) (collectively, "Rule
144");
(ii)
any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144 and further, if Rule 144 is not
applicable, any resale of the Securities under circumstances in which the seller
(or the Person (as defined in Section 3(s)) through whom the sale is made)
may
be deemed to be an underwriter (as that term is defined in the 0000 Xxx) may
require compliance with some other exemption under the 1933 Act or the rules
and
regulations of the SEC thereunder; and (iii) neither the Company nor any other
Person is under any obligation to register the Securities under the 1933 Act
or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder. The Securities may be pledged in connection with a bona
fide margin account or other loan or financing arrangement secured by the
Securities and such pledge of Securities shall not be deemed to be a transfer,
sale or assignment of the Securities hereunder, and no Buyer effecting a pledge
of Securities shall be required to provide the Company with any notice thereof
or otherwise make any delivery to the Company pursuant to this Agreement or
any
other Transaction Document (as defined in Section 3(b)), including, without
limitation, this Section 2(f).
(g) Legends.
Such
Buyer understands that the certificates or other instruments representing the
Common Shares and the Warrants and, until such time as the resale of the Warrant
Shares have been registered under the 1933 Act as contemplated by the
Registration Rights Agreement, the stock certificates representing the Warrant
Shares, except as set forth below, shall bear any legend as required by the
"blue sky" laws of any state and a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of
such
stock certificates):
[NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR
THE
SECURITIES INTO WHICH THESE SECURITIES ARE [EXERCISABLE]
HAVE
BEEN][THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN]
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION
OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER
SAID
ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.
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The
legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which
it is
stamped, if, unless otherwise required by state securities laws, (i) such
Securities are registered for resale under the 1933 Act, (ii) in connection
with
a sale, assignment or other transfer, such holder provides the Company with
an
opinion of a law firm reasonably acceptable to the Company (with Xxxxxxx Xxxx
& Xxxxx LLP being deemed acceptable), in a generally acceptable form, to the
effect that such sale, assignment or transfer of the Securities may be made
without registration under the applicable requirements of the 1933 Act, or
(iii)
such holder provides the Company with reasonable assurance that the Securities
can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A. If
the
Company shall fail for any reason or for no reason to issue to the holder of
the
Securities within three (3) Trading Days (as defined below) (after the
occurrence of any of (i) through (iii) above, a certificate without such legend
to the holder or to issue such Securities to such holder by electronic delivery
at the applicable balance account at DTC or if the Company fails to deliver
unlegended Securities within 3 Trading Days of the Buyer's election to receive
such unlegended Securities pursuant to clause (ii) below, and if on or after
such Trading Day the holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
holder of such Securities that the holder anticipated receiving without legend
from the Company (a "Buy-In"),
then
the Company shall, within three (3) Business Days after the holder's request
and
in the holder's discretion, either (i) pay cash to the holder in an amount
equal
to the holder's total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the "Buy-In
Price"),
at
which point the Company's obligation to deliver such unlegended Securities
shall
terminate, or (ii) promptly honor its obligation to deliver to the holder such
unlegended Securities as provided above and pay cash to the holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (A) such
number of shares of Common Stock, times (B) the Closing Bid Price (as defined
in
the Warrants) on the date of exercise.
(h) Validity;
Enforcement.
This
Agreement and the Registration Rights Agreement to which such Buyer is a party
have been duly and validly authorized, executed and delivered on behalf of
such
Buyer and shall constitute the legal, valid and binding obligations of such
Buyer enforceable against such Buyer in accordance with their respective terms,
except as such enforceability may be limited by general principles of equity
or
to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement
of
applicable creditors' rights and remedies.
(i) No
Conflicts.
The
execution, delivery and performance by such Buyer of this Agreement and the
Registration Rights Agreement to which such Buyer is a party and the
consummation by such Buyer of the transactions contemplated hereby and thereby
will not (i) result in a violation of the organizational documents of such
Buyer
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 such Buyer is a party, or (iii)
result in a violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws) applicable to such Buyer, except
in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the ability of
such
Buyer to perform its obligations hereunder.
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(j) Residency.
Such
Buyer is a resident of that jurisdiction specified below its address on the
Schedule of Buyers.
(k) Certain
Trading Activities.
Other
than with respect to the transactions contemplated herein, since the time that
such Buyer was first contacted by the Company, the Placement Agent (as defined
below) or any other Person regarding this investment in the Company neither
the
Buyer nor any Affiliate of such Buyer which (x) had knowledge of the
transactions contemplated hereby, (y) has or shares discretion relating to
such
Buyer's investments or trading or information concerning such Buyer's
investments and (z) is subject to such Buyer's review or input concerning such
Affiliate's investments or trading (collectively, "Trading
Affiliates")
has
directly or indirectly, nor has any Person acting on behalf of or pursuant
to
any understanding with such Buyer or Trading Affiliate, effected or agreed
to
effect any transactions in the securities of the Company. Such Buyer hereby
covenants and agrees not to, and shall cause its Trading Affiliates not to,
engage, directly or indirectly, in any transactions in the securities of the
Company or involving the Company's securities during the period from the date
hereof until such time as (i) the transactions contemplated by this Agreement
are first publicly announced as described in Section 4(i) hereof or (ii) this
Agreement is terminated in full pursuant to Section 8 hereof. Notwithstanding
the foregoing, for avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, with respect to the
identification of the availability of, or securing of, available shares to
borrow in order to effect short sales or similar transactions in the
future.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers that, as of the date
hereof and as of the Closing Date as follows (which representations and
warranties shall be deemed to apply, as appropriate, to each subsidiary of
the
Company, including, without limitation, Ever Leader assuming that the
Acquisition has been consummated as of the date hereof):
(a) Organization
and Qualification.
The
Company and its "Subsidiaries"
(which
for purposes of this Agreement means any joint venture or any entity in which
the Company, directly or indirectly, owns any of the capital stock or holds
an
equity or similar interest are entities duly organized and validly existing
and,
to the extent legally applicable, in good standing under the laws of the
jurisdiction in which they are formed, and have the requisite power and
authorization to own their properties and to carry on their business as now
being conducted. Each of the Company and its Subsidiaries is duly qualified
as a
foreign entity to do business and to the extent legally applicable, is in good
standing in every jurisdiction in which its ownership of property or the nature
of the business conducted by it makes such qualification necessary, except
to
the extent that the failure to be so qualified or be in good standing would
not
reasonably be expected to reasonably be expected to have a Material Adverse
Effect. As used in this Agreement, "Material
Adverse Effect"
means
any material adverse effect on the business, properties, assets, operations,
results of operations, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries, taken as a whole, or on the transactions
contemplated hereby and the other Transaction Documents or by the agreements
and
instruments to be entered into in connection herewith or therewith, or on the
authority or ability of the Company to perform its obligations under the
Transaction Documents (as defined below). The Company has no Subsidiaries except
as set forth on Schedule
3(a).
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(b) Authorization;
Enforcement; Validity.
The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement, the Registration Rights Agreement,
Escrow Agreement, the Irrevocable Transfer Agent Instructions (as defined in
Section 5(b)), the Warrants, the Make Good Agreement, the Make Good Escrow
Agreement and each of the other agreements entered into by the parties hereto
in
connection with the transactions contemplated by this Agreement (collectively,
the "Transaction
Documents")
and to
issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby,
including, without limitation, the issuance of the Units and the Common Share
and the Warrants comprising the Units, the reservation for issuance and the
issuance of the Common Shares and the reservation for issuance and issuance
of
Warrant Shares issuable upon exercise of the Warrants have been duly authorized
by the Company's Board of Directors and other than as set forth in Section
3(e),
no further filing, consent, or authorization is required by the Company, its
Board of Directors or its stockholders. This Agreement and the other Transaction
Documents of even date herewith have been duly executed and delivered by the
Company, and constitute the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by general principles of equity
or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or
similar laws relating to, or affecting generally, the enforcement of applicable
creditors' rights and remedies.
(c) Issuance
of Securities.
The
issuance of the Units and the Common Shares and Warrants comprising the Units,
are duly authorized and upon issuance in accordance with the terms of the
Transaction Documents shall be free from all taxes, liens and charges with
respect to the issue thereof. As of the Closing, a number of shares of Common
Stock shall have been duly authorized and reserved for issuance which equals
or
exceeds the sum of (i) 100% of the number of Common Shares issued hereunder
and
(ii) 150% of the maximum number of shares of Common Stock issuable upon exercise
of the Warrants. Upon exercise in accordance with the Warrants, the Warrant
Shares will be validly issued, fully paid and nonassessable and free from all
preemptive or similar rights, taxes, liens and charges with respect to the
issue
thereof, with the holders being entitled to all rights accorded to a holder
of
Common Stock. Assuming the accuracy of each of the representations and
warranties set forth in Section 2 of this Agreement, the offer and issuance
by
the Company of the Securities is exempt from registration under the 1933
Act.
(d) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby
and
thereby (including, without limitation, the issuance of the Units and the Common
Shares and Warrants which comprise such Units and reservation for issuance
and
issuance of the Warrant Shares) will not (i) result in a violation of any
certificate of incorporation, certificate of formation, any certificate of
designations or other constituent documents of the Company or any of its
Subsidiaries, any capital stock of the Company or any of its Subsidiaries or
bylaws of the Company or any of its Subsidiaries or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) in any respect 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 (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including foreign, federal and state securities laws and
regulations and the rules and regulations of the National Association of
Securities Dealer's OTC Bulletin Board (the "Principal
Market"))
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
in
the case of clauses (ii) and (iii) above, to the extent that such violations
conflict, default or right would not reasonably be expected to have a Material
Adverse Effect.
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(e) Consents.
Neither
the Company nor any of its Subsidiaries is required to obtain any consent,
authorization or order of, or make any filing or registration with, any court,
governmental agency or any regulatory or self-regulatory agency or any other
Person in order for it to execute, deliver or perform any of its obligations
under or contemplated by the Transaction Documents, in each case in accordance
with the terms hereof or thereof, except for the filing with the SEC of one
or
more Registration Statements in accordance with the requirements of the
Registration Rights Agreement (which is not required to be filed before the
Closing). The Company and its Subsidiaries are unaware of any facts or
circumstances that might prevent the Company from obtaining or effecting any
of
the registration, application or filings pursuant to the preceding sentence.
The
Company is not in violation of the listing requirements of the Principal Market
and has no knowledge of any facts that would reasonably lead to delisting or
suspension of the Common Stock in the foreseeable future.
(f) Acknowledgment
Regarding Buyer's Purchase of Securities.
The
Company acknowledges and agrees that each Buyer is acting solely in the capacity
of an arm's length purchaser with respect to the Transaction Documents and
the
transactions contemplated hereby and thereby and that no Buyer is (i) an officer
or director of the Company, (ii) an "affiliate" of the Company or any of its
Subsidiaries (as defined in Rule 144 of the 0000 Xxx) or (iii) to the knowledge
of the Company, a "beneficial owner" of more than 10% of the shares of Common
Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act
of
1934, as amended (the "1934
Act")).
The
Company further acknowledges that no Buyer is acting as a financial advisor
or
fiduciary of the Company or any of its Subsidiaries (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by a Buyer or any of its
representatives or agents in connection with the Transaction Documents and
the
transactions contemplated hereby and thereby is merely incidental to such
Buyer's purchase of the Securities. The Company further represents to each
Buyer
that the Company's decision to enter into the Transaction Documents has been
based solely on the independent evaluation by the Company and its
representatives.
(g) No
General Solicitation; Placement Agent's Fees.
Neither
the Company, nor any of its Subsidiaries or affiliates, nor any Person acting
on
its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with the offer
or
sale of the Securities. The Company shall be responsible for the payment of
any
placement agent's fees, financial advisory fees, or brokers' commissions (other
than for persons engaged by any Buyer or its investment advisor) relating to
or
arising out of the transactions contemplated hereby. The Company acknowledges
that Ever Leader and the Company have engaged Xxxxxxx Securities, LLC as
placement agent (the "Placement
Agent")
in
connection with the sale of the Securities. Other than the Placement Agent
and
as set forth on Schedule 3(g), neither the Company nor Ever Leader nor any
of
its Subsidiaries has engaged any placement agent or other agent in connection
with the sale of the Securities.
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(h) No
Integrated Offering.
None of
the Company, its Subsidiaries, any of their affiliates, and any Person acting
on
their behalf 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 any of the Securities under the 1933 Act or cause
this offering of the Securities to be integrated with prior offerings by the
Company for purposes of any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company
are
listed or designated. None of the Company, its Subsidiaries, their affiliates
and any Person acting on their behalf will take any action or steps referred
to
in the preceding sentence that would require registration of any of the
Securities under the 1933 Act or cause the offering of the Securities to be
integrated with other offerings.
(i) Dilutive
Effect.
The
Company understands and acknowledges that the number of Warrant Shares issuable
upon exercise of the Warrants will increase in certain circumstances. The
Company further acknowledges that its obligation to issue the Warrant Shares
upon exercise of the Warrants in accordance with this Agreement and the Warrants
is, in each case, absolute and unconditional regardless of the dilutive effect
that such issuance may have on the ownership interests of other stockholders
of
the Company.
(j) Application
of Takeover Protections; Rights Agreement.
The
Company and its board of directors have taken all necessary action, if any,
in
order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Certificate of Incorporation
(as defined in Section 3(r)) or the laws of the state of its incorporation
which
is or could become applicable to any Buyer as a result of the transactions
contemplated by this Agreement, including, without limitation, the Company's
issuance of the Securities and any Buyer's ownership of the Securities. The
Company and its board of directors have taken all necessary action, if any,
in
order to render inapplicable any stockholder rights plan or similar arrangement
relating to accumulations of beneficial ownership of Common Stock or a change
in
control of the Company.
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(k) SEC
Documents; Financial Statements.
During
the two (2) years prior to the date hereof, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it
with
the SEC pursuant to the reporting requirements of the 1934 Act (all of the
foregoing filed prior to the date hereof and all exhibits included therein
and
financial statements, notes and schedules thereto and documents incorporated
by
reference therein being hereinafter referred to as the "SEC
Documents").
The
Company has delivered to the Buyers or their respective representative true,
correct and complete copies of the SEC Documents not available on the XXXXX
system. As of their respective filing dates, the SEC Documents complied in
all
material respects with the requirements of the 1934 Act 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 the light of the circumstances under which they were made, not
misleading. As of their respective filing dates, the financial statements of
the
Company included in the SEC Documents complied as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have
been
prepared in accordance with 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 exclude
footnotes or may be condensed or summary statements) and fairly present in
all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other information provided by or on behalf of the Company
to
the Buyers which is not included in the SEC Documents, including, without
limitation, information referred to in Section 2(d) of this Agreement or in
any
disclosure schedules, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstance under which they are or were made not misleading.
(l) Absence
of Certain Changes.
Since
September 30, 2005, there has been no material adverse change and no material
adverse development in the business, properties, operations, condition
(financial or otherwise), results of operations or prospects of the Company
or
its Subsidiaries. Except as disclosed in Schedule
3(l),
since
September 30, 2005, the Company has not (i) declared or paid any dividends,
(ii)
sold any assets, individually or in the aggregate, in excess of $100,000 outside
of the ordinary course of business or (iii) had capital expenditures,
individually or in the aggregate, in excess of $250,000. Neither the Company
nor
any of its Subsidiaries has taken any steps to seek protection pursuant to
any
bankruptcy law nor does the Company have any knowledge or reason to believe
that
its creditors intend to initiate involuntary bankruptcy proceedings or any
actual knowledge of any fact that would reasonably lead a creditor to do so.
The
Company and its Subsidiaries, individually and on a consolidated basis, are
not
as of the date hereof, and after giving effect to the transactions contemplated
hereby to occur at the Closing, will not be Insolvent (as defined below). For
purposes of this Section 3(l), "Insolvent"
means,
with respect to any Person (as defined in Section 3(s)), (i) the present fair
saleable value of such Person's assets is less than the amount required to
pay
such Person's total Indebtedness (as defined in Section 3(s)), (ii) such Person
is unable to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured, (iii)
such
Person intends to incur or believes that it will incur debts that would be
beyond its ability to pay as such debts mature or (iv) such Person has
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be
conducted.
(m) No
Undisclosed Events, Liabilities, Developments or Circumstances.
No
event, liability, development or circumstance has occurred or exists, or is
contemplated to occur with respect to the Company, its Subsidiaries or their
respective business, properties, prospects, operations or financial condition,
that would be required to be disclosed by the Company under applicable
securities laws on a registration statement on Form S-1 filed with the SEC
relating to an issuance and sale by the Company of its Common Stock and which
has not been publicly announced.
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10 -
(n) Conduct
of Business; Regulatory Permits.
Neither
the Company nor any of its Subsidiaries is in violation of any term of or in
default under its Certificate of Incorporation, any certificate of designations
of any outstanding series of preferred stock of the Company or the Bylaws or
their organizational charter or bylaws, respectively. Neither the Company nor
any of its Subsidiaries is in violation of any judgment, decree or order or
any
statute, ordinance, rule or regulation applicable to the Company or its
Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct
its business in violation of any of the foregoing, except for possible
violations which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Without limiting the generality
of
the foregoing, the Company is not in violation of any of the rules, regulations
or requirements of the Principal Market and has no knowledge of any facts or
circumstances that would reasonably lead to delisting or suspension of the
Common Stock by the Principal Market in the foreseeable future. During the
two
(2) years prior to the date hereof, (i) the Common Stock has been designated
for
quotation on the Principal Market, (ii) trading in the Common Stock has not
been
suspended by the SEC or the Principal Market and (iii) the Company has received
no communication, written or oral, from the SEC or the Principal Market
regarding the suspension or delisting of the Common Stock from the Principal
Market. The Company and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure
to
possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and neither the
Company nor any such Subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or
permit.
(o) Foreign
Corrupt Practices.
Neither
the Company nor any of its Subsidiaries nor any director, officer, agent,
employee or other Person acting on behalf of the Company or any of its
Subsidiaries has, in the course of its actions for, or on behalf of, the Company
or any of its Subsidiaries (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign
or
domestic government official or employee.
(p) Xxxxxxxx-Xxxxx
Act.
The
Company is in compliance with any and all applicable requirements of the
Xxxxxxxx-Xxxxx Act of 2002 that are effective as of the date hereof, and any
and
all applicable rules and regulations promulgated by the SEC thereunder that
are
effective as of the date hereof.
(q) Transactions
With Affiliates.
Except
as set forth in the SEC Documents filed at least ten (10) days prior to the
date
hereof, none of the officers, directors or employees of the Company or any
of
its Subsidiaries is presently a party to any transaction with the Company or
any
of its Subsidiaries (other than for ordinary course services as employees,
officers or 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
such officer, director or employee or, to the knowledge of the Company or any
of
its Subsidiaries, any corporation, partnership, trust or other entity in which
any such officer, director, or employee has a substantial interest or is an
officer, director, trustee or partner.
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11 -
(r) Equity
Capitalization.
As of
the date hereof, the authorized capital stock of the Company consists of
150,000,000 shares of Common Stock, of which as of the date hereof,
5,354,091 are issued and outstanding and no shares are reserved for issuance
pursuant to securities (other than the aforementioned options, the Common Shares
and the Warrants) exercisable or exchangeable for, or convertible into, shares
of Common Stock. All of such outstanding shares have been, or upon issuance
will
be, validly issued and are fully paid and nonassessable. Except as disclosed
in
Schedule
3(r):
(i)
none of the Company's capital stock is subject to preemptive rights or any
other
similar rights or any liens or encumbrances suffered or permitted by the
Company; (ii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities or rights convertible into, or exercisable or exchangeable for,
any
capital stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of
its
Subsidiaries is or may become bound to issue additional capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to,
or
securities or rights convertible into, or exercisable or exchangeable for,
any
capital stock of the Company or any of its Subsidiaries; (iii) there are no
outstanding debt securities, notes, credit agreements, credit facilities or
other agreements, documents or instruments evidencing Indebtedness of the
Company or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound; (iv) there are no financing statements
securing obligations in any material amounts, either singly or in the aggregate,
filed in connection with the Company or any of its Subsidiaries; (v) there
are
no agreements or arrangements under which the Company or any of its Subsidiaries
is obligated to register the sale of any of their securities under the 1933
Act
(except pursuant to the Registration Rights Agreement); (vi) there are no
outstanding securities or instruments of the Company or any of its Subsidiaries
which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of
its
Subsidiaries is or may become bound to redeem a security of the Company or
any
of its Subsidiaries; (vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance
of
the Securities; (viii) the Company does not have any stock appreciation rights
or "phantom stock" plans or agreements or any similar plan or agreement; and
(ix) the Company and its Subsidiaries have no liabilities or obligations
required to be disclosed in the SEC Documents but not so disclosed in the SEC
Documents, other than those incurred in the ordinary course of the Company's
or
its Subsidiaries' respective businesses and which, individually or in the
aggregate, do not or would not have a Material Adverse Effect. The Company
has
furnished to the Buyers true, correct and complete copies of the Company's
Certificate of Incorporation, as amended and as in effect on the date hereof
(the "Certificate
of Incorporation"),
and
the Company's Bylaws, as amended and as in effect on the date hereof (the
"Bylaws"),
and
the terms of all securities convertible into, or exercisable or exchangeable
for, shares of Common Stock and the material rights of the holders thereof
in
respect thereto.
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12 -
(s) Indebtedness
and Other Contracts.
Except
as disclosed in Schedule
3(s),
neither
the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness
(as
defined below), (ii) is a party to any contract, agreement or instrument, the
violation of which, or default under which, by the other party(ies) to such
contract, agreement or instrument could reasonably be expected to result in
a
Material Adverse Effect, (iii) is in violation of any term of or in default
under any contract, agreement or instrument relating to any Indebtedness, except
where such violations and defaults would not result, individually or in the
aggregate, in a Material Adverse Effect, or (iv) is a party to any contract,
agreement or instrument relating to any Indebtedness, the performance of which,
in the judgment of the Company's officers, has or is expected to have a Material
Adverse Effect. Schedule
3(s)
provides
a detailed description of the material terms of any such outstanding
Indebtedness. For purposes of this Agreement: (x) "Indebtedness"
of any
Person means, without duplication (A) all indebtedness for borrowed money,
(B)
all obligations issued, undertaken or assumed as the deferred purchase price
of
property or services, including (without limitation) "capital leases" in
accordance with generally accepted accounting principles (other than trade
payables entered into in the ordinary course of business), (C) all reimbursement
or payment obligations with respect to letters of credit, surety bonds and
other
similar instruments, (D) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses, (E) all
indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect
to
any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller or bank under such agreement in
the
event of default are limited to repossession or sale of such property), (F)
all
monetary obligations under any leasing or similar arrangement which, in
connection with generally accepted accounting principles, consistently applied
for the periods covered thereby, is classified as a capital lease, (G) all
indebtedness referred to in clauses (A) through (F) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any mortgage, lien, pledge, charge, security
interest or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which
owns such assets or property has not assumed or become liable for the payment
of
such indebtedness, and (H) all Contingent Obligations in respect of indebtedness
or obligations of others of the kinds referred to in clauses (A) through (G)
above; (y) "Contingent
Obligation"
means,
as to any Person, any direct or indirect liability, contingent or otherwise,
of
that Person with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person
incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part) against loss
with respect thereto; and (z) "Person"
means
an individual, a limited liability company, a partnership, a joint venture,
a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
(t) Absence
of Litigation.
Except
as set forth in Schedule
3(t),
there
is no action, suit, proceeding, inquiry or investigation before or by the
Principal Market, 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, the Common Stock
or
any of the Company's Subsidiaries or any of the Company's or its Subsidiaries'
officers or directors.
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13 -
(u) Insurance.
The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
management of the Company believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged. Neither the Company
nor
any such Subsidiary has been refused any insurance coverage sought or applied
for and neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as
may
be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(v) Employee
Relations.
(i) Neither
the Company nor any of its Subsidiaries is a party to any collective bargaining
agreement or employs any member of a union. The Company and its Subsidiaries
believe that their relations with their employees are good. No executive officer
of the Company or any of its Subsidiaries (as defined in Rule 501(f) of the
0000
Xxx) has notified the Company or any such Subsidiary that such officer intends
to leave the Company or any such Subsidiary or otherwise terminate such
officer's employment with the Company or any such Subsidiary. No executive
officer of the Company or any of its Subsidiaries, is, or is now expected to
be,
in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement,
or
any other contract or agreement or any restrictive covenant, and the continued
employment of each such executive officer does not subject the Company or any
of
its Subsidiaries to any liability with respect to any of the foregoing
matters.
(ii) The
Company and its Subsidiaries, to their knowledge, are in compliance with all
federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of
employment and wages and hours, except where failure to be in compliance would
not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(w) Title.
The
Company and its Subsidiaries have good and marketable title in fee simple to
all
real property and good and marketable title to all personal property owned
by
them which is material to the business of the Company and its Subsidiaries,
in
each case free and clear of all liens, encumbrances and defects except such
as
are described in Schedule
3(w)
or such
as do not materially affect the value of such property and do not interfere
with
the use made and proposed to be made of such property by the Company and any
of
its Subsidiaries. Any real property and facilities held under lease by the
Company and any of its Subsidiaries are held by them under valid, subsisting
and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by
the
Company and its Subsidiaries.
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14 -
(x) Intellectual
Property Rights.
The
Company and its Subsidiaries own or possess adequate rights or licenses to
use
all trademarks, service marks and all applications and registrations therefor,
trade names, patents, patent rights, copyrights, original works of authorship,
inventions, trade secrets and other intellectual property rights ("Intellectual
Property Rights")
necessary to conduct their respective businesses as now conducted. None of
the
Company's registered, or applied for, Intellectual Property Rights have expired
or terminated or have been abandoned, or are expected to expire or terminate
or
expected to be abandoned, within three years from the date of this Agreement.
The Company does not have any knowledge of any infringement by the Company
or
its Subsidiaries of Intellectual Property Rights of others. There is no claim,
action or proceeding being made or brought, or to the knowledge of the Company,
being threatened, against the Company or its Subsidiaries regarding its
Intellectual Property Rights. Neither the Company nor any of its Subsidiaries
is
aware of any facts or circumstances which might give rise to any of the
foregoing infringements or claims, actions or proceedings. The Company and
its
Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their Intellectual Property
Rights.
(y) Environmental
Laws.
The
Company and its Subsidiaries, to their knowledge, (i) are in compliance with
any
and all Environmental Laws (as hereinafter defined), (ii) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval
where, in each of the foregoing clauses (i), (ii) and (iii), the failure to
so
comply could be reasonably expected to have, individually or in the aggregate,
a
Material Adverse Effect. The term "Environmental
Laws"
means
all federal, state, local or foreign laws relating to pollution or protection
of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, "Hazardous
Materials") into
the
environment, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations issued, entered, promulgated or approved
thereunder.
(z) Subsidiary
Rights.
The
Company or one of its Subsidiaries has the unrestricted right to vote, and
(subject to limitations imposed by applicable law) to receive dividends and
distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.
(aa) Tax
Status.
The
Company and each of its Subsidiaries (i) has made or filed all foreign, federal
and state income and all other tax returns, reports and declarations required
by
any jurisdiction to which it is subject, (ii) 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 (iii) has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to
the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority
of
any jurisdiction, and the officers of the Company know of no basis for any
such
claim.
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15 -
(bb) Internal
Accounting and Disclosure Controls.
The
Company and each of its 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 and liability accountability, (iii) access to assets or
incurrence of liabilities is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability for
assets and liabilities is compared with the existing assets and liabilities
at
reasonable intervals and appropriate action is taken with respect to any
difference. The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the 0000 Xxx) that are effective in
ensuring that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the
SEC, including, without limitation, controls and procedures designed in to
ensure that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is accumulated and communicated
to
the Company's management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure. During the twelve months prior to
the
date hereof neither the Company nor any of its Subsidiaries have received any
notice or correspondence from any accountant relating to any potential material
weakness in any part of the system of internal accounting controls of the
Company or any of its Subsidiaries.
(cc) Off
Balance Sheet Arrangements.
There
is no transaction, arrangement, or other relationship between the Company and
an
unconsolidated or other off balance sheet entity that is required to be
disclosed by the Company in its 1934 Act filings and is not so disclosed or
that
otherwise would be reasonably likely to have a Material Adverse
Effect.
(dd) Investment
Company Status.
The
Company is not, and upon consummation of the sale of the Securities will not
be,
an "investment company," a company controlled by an "investment company" or
an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company" as such terms are defined in the Investment Company Act
of
1940, as amended.
(ee) Transfer
Taxes.
On the
Closing Date, all stock transfer or other taxes (other than income or similar
taxes) which are required to be paid in connection with the sale and transfer
of
the Securities to be sold to each Buyer hereunder will be, or will have been,
fully paid or provided for by the Company, and all laws imposing such taxes
will
be or will have been complied with.
(ff) Manipulation
of Price.
The
Company has not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in
the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) other than the
Placement Agent, sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities, or (iii) other than the
Placement Agent, paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
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16 -
(gg) Disclosure.
The
Company confirms that neither it nor any other Person acting on its behalf
has
provided any of the Buyers or their agents or counsel with any information
that
constitutes or could reasonably be expected to constitute material, nonpublic
information. The Company understands and confirms that each of the Buyers will
rely on the foregoing representations in effecting transactions in securities
of
the Company. All disclosure provided to the Buyers regarding the Company or
any
of its Subsidiaries, their business and the transactions contemplated hereby,
including the Schedules to this Agreement, furnished by or on behalf of the
Company is true and correct and does 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. Each press release issued by the Company or any of its
Subsidiaries during the twelve (12) months preceding the date of this Agreement
did not at the time of release contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in
order to make the statements 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.
(hh) Acknowledgement
Regarding Buyers' Trading Activity.
Anything in this Agreement or elsewhere herein to the contrary notwithstanding,
but subject to compliance by the Buyers with applicable law and the provisions
of Section 2(k) hereto, it is understood and acknowledged by the Company (i)
that none of the Buyers have been asked by the Company or its Subsidiaries
to
agree, nor has any Buyer agreed with the Company or its Subsidiaries, to desist
from purchasing or selling, long and/or short, securities of the Company, or
"derivative" securities based on securities issued by the Company or to hold
the
Securities for any specified term; (ii) that past or future open market or
other
transactions by any Buyer, including, without limitation, short sales or
"derivative" transactions, before or after the closing of this or future private
placement transactions, may negatively impact the market price of the Company's
publicly-traded securities; (iii) that any Buyer, and counter parties in
"derivative" transactions to which any such Buyer is a party, directly or
indirectly, presently may have a "short" position in the Common Stock, and
(iv)
that each Buyer shall not be deemed to have any affiliation with or control
over
any arm's length counter-party in any "derivative" transaction. The Company
further understands and acknowledges that (a) one or more Buyers may engage
in
hedging and/or trading activities at various times during the period that the
Securities are outstanding, including, without limitation, during the periods
that the value of the Warrant Shares deliverable with respect to Securities
are
being determined and (b) such hedging and/or trading activities (if any) could
reduce the value of the existing stockholders' equity interests in the Company
at and after the time that the hedging and/or trading activities are being
conducted.
(ii) U.S.
Real Property Holding Corporation.
The
Company is not, nor has it ever been, a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as
amended, and the Company shall so certify upon any Buyer's request.
(jj) Representations
Incorporated by Reference.
In
addition to the representations and warranties otherwise set forth herein,
all
representations and warranties of the Company and Ever Leader contained in
(i)
that certain Placement Agreement dated as of October 17, 2006, by and among
the
Company, Ever Leader and Xxxxxxx Securities, LLC and (ii) the Exchange Agreement
are hereby incorporated by reference for the benefit of the Buyers as if such
representations and warranties were repeated herein and addressed to the
Buyers.
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17 -
(kk) Exchange
Agreement.
The
Exchange Agreement has not been amended in any way and no provisions thereof
have been waived.
4. COVENANTS.
(a) Best
Efforts.
Each
party shall use its best efforts timely to satisfy each of the conditions to
be
satisfied by it as provided in Sections 6 and 7 of this Agreement.
(b) Form
D
and Blue Sky.
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 Buyer promptly after such
filing. The Company shall, on or before the Closing Date, take such action
as
the Company shall reasonably determine is necessary in order to obtain an
exemption for or to qualify the Securities for sale to the Buyers at the Closing
pursuant to this Agreement under applicable securities or "Blue Sky" laws of
the
states of the United States (or to obtain an exemption from such qualification),
and shall provide evidence of any such action so taken to the Buyers on or
prior
to the Closing Date. The Company shall make all filings and reports relating
to
the offer and sale of the Securities required under applicable securities or
"Blue Sky" laws of the states of the United States following the Closing Date.
(c) Reporting
Status.
Until
the date on which the Investors (as defined in the Registration Rights
Agreement) shall have sold all the Common Shares and Warrant Shares and
none
of the Warrants is outstanding, (the "Reporting
Period"),
the
Company shall timely file all reports required to be filed with the SEC pursuant
to the 1934 Act, and the Company shall not terminate its status as an issuer
required to file reports under the 1934 Act even if the 1934 Act or the rules
and regulations thereunder would permit such termination.
(d) Use
of
Proceeds.
The
Company will use the proceeds from the sale of the Securities as set forth
on
Schedule
4(d),
and not
for any other purposes.
(e) Financial
Information.
The
Company agrees to send the following to each Investor (as defined in the
Registration Rights Agreement) during the Reporting Period (i) unless the
following are filed with the SEC through XXXXX and are available to the public
through the XXXXX system, within one (1) Business Day after the filing thereof
with the SEC, a copy of its Annual Reports and Quarterly Reports on Form 10-K,
10-KSB, 10-Q or 10-QSB, any interim reports or any consolidated balance sheets,
income statements, stockholders' equity statements and/or cash flow statements
for any period other than annual, any Current Reports on Form 8-K and any
registration statements (other than on Form S-8) or amendments filed pursuant
to
the 1933 Act, (ii) on the same day as the release thereof, facsimile or e-mailed
copies of all press releases issued by the Company or any of its Subsidiaries,
and (iii) copies of any notices and other information made available or given
to
the stockholders of the Company generally, contemporaneously with the making
available or giving thereof to the stockholders. As used herein, "Business
Day"
means
any day other than Saturday, Sunday or other day on which commercial banks
in
The City of New York are authorized or required by law to remain
closed.
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18 -
(f) Listing.
The
Company shall promptly secure the listing of all of the Registrable Securities
(as defined in the Registration Rights Agreement) upon each national securities
exchange and automated quotation system, if any, upon which the Common Stock
is
then listed (subject to official notice of issuance) and shall maintain, in
accordance with the Warrants, such listing of all Registrable Securities from
time to time issuable under the terms of the Transaction Documents. The Company
shall maintain the Common Stocks' authorization for quotation on the Principal
Market. Neither the Company nor any of its Subsidiaries shall take any action
which would be reasonably expected to result in the delisting or suspension
of
the Common Stock on the Principal Market. The Company shall pay all fees and
expenses in connection with satisfying its obligations under this Section
4(f).
(g) Fees.
The
Company shall be responsible for the payment of any placement agent's fees,
financial advisory fees, or broker's commissions relating to or arising out
of
the transactions contemplated hereby, including, without limitation, any fees
payable to the Placement Agent. The Company and Ever Leader shall pay, and
hold
each Buyer harmless against, any liability, loss or expense (including, without
limitation, reasonable attorney's fees and out-of-pocket expenses) arising
in
connection with any claim relating to any such payment.
(h) Pledge
of Securities.
The
Company acknowledges and agrees that the Securities may be pledged by an
Investor (as defined in the Registration Rights Agreement) in connection with
a
bona fide margin agreement or other loan or financing arrangement that is
secured by the Securities. The pledge of Securities shall not be deemed to
be a
transfer, sale or assignment of the Securities hereunder, and no Investor
effecting a pledge of Securities shall be required to provide the Company with
any notice thereof or otherwise make any delivery to the Company pursuant to
this Agreement or any other Transaction Document, including, without limitation,
Section 2(f) hereof; provided that an Investor and its pledgee shall be required
to comply with the provisions of Section 2(f) hereof in order to effect a sale,
transfer or assignment of Securities to such pledgee. The Company hereby agrees
to execute and deliver such documentation as a pledgee of the Securities may
reasonably request in connection with a pledge of the Securities to such pledgee
by an Investor.
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19 -
(i) Disclosure
of Transactions and Other Material Information.
On or
before 8:30 a.m., New York City time, on the first Business Day following the
Closing Date, the Company shall issue a press release and file a Current Report
on Form 8-K describing the terms of the transactions contemplated by the
Transaction Documents and the Exchange Agreement in the form required by the
1934 Act and attaching the material Transaction Documents (including, without
limitation, this Agreement, the form of Warrant, the form of Escrow Agreement,
the form of Make Good Agreement, the form of Make Good Escrow Agreement and
the
form of the Registration Rights Agreement and such financial statements and
other information as required in connection with the Exchange Agreement) as
exhibits to such filing (including all attachments, the "8-K
Filing").
From
and after the filing of the 8-K Filing with the SEC, no Buyer shall be in
possession of any material, nonpublic information received from the Company,
any
of its Subsidiaries or any of their respective officers, directors, employees
or
agents that is not disclosed in the 8-K Filing. 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 Buyer with any material,
nonpublic information regarding the Company or any of its Subsidiaries from
and
after the filing of the 8-K Filing with the SEC without the express written
consent of such Buyer. If a Buyer has, or believes it has, received any such
material, nonpublic information regarding the Company or any of its
Subsidiaries, it shall provide the Company with written notice thereof. The
Company shall, within five (5) Trading Days (as defined in the Warrants) of
receipt of such notice, make public disclosure of such material, nonpublic
information. In the event of a breach of the foregoing covenant by the Company,
any of its Subsidiaries, or any of its or their respective officers, directors,
employees and agents, in addition to any other remedy provided herein or in
the
Transaction Documents, a Buyer shall have the right to make a public disclosure,
in the form of a press release, public advertisement or otherwise, of such
material, nonpublic information without the prior approval by the Company,
its
Subsidiaries, or any of its or their respective officers, directors, employees
or agents. No Buyer 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, its Subsidiaries nor any Buyer 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 Buyer, 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) each Buyer shall be
consulted by the Company in connection with any such press release or other
public disclosure prior to its release). Without the prior written consent
of
any applicable Buyer, neither the Company nor any of its Subsidiaries or
affiliates shall disclose the name of such Buyer in any filing, announcement,
release or otherwise, unless required by law.
(j) Variable
Securities; Dilutive Issuances.
So long
as any Buyer beneficially owns any Warrants, the Company will not issue any
other securities that would cause a breach or default under the Warrants. For
so
long as any Warrants remain outstanding, the Company shall not, in any manner,
issue or sell any rights, warrants or options to subscribe for or purchase
Common Stock or directly or indirectly convertible into or exchangeable or
exercisable for Common Stock at a price which varies or may vary with the market
price of the Common Stock, including by way of one or more reset(s) to any
fixed
price unless the conversion, exchange or exercise price of any such security
cannot be less than the then applicable Exercise Price (as defined in the
Warrants) with respect to the Common Stock into which any Warrant is
exercisable. For so long as any Warrants remain outstanding, the Company shall
not, in any manner, enter into or affect any Dilutive Issuances (as defined
in
the Warrants) if the effect of such Dilutive Issuance is to cause the Company
to
be required to issue upon exercise of any Warrant any shares of Common Stock
in
excess of that number of shares of Common Stock which the Company may issue
upon
exercise of the Warrants without breaching the Company's obligations under
the
rules or regulations of the Principal Market.
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20 -
(k) Corporate
Existence.
So long
as any Buyer beneficially owns any Securities, the Company shall not be party
to
any Fundamental Transaction (as defined in the Warrants) unless the Company
is
in compliance with the applicable provisions governing Fundamental Transactions
set forth in the Warrants.
(l) Reservation
of Shares.
The
Company shall take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, no less than (i) 100% of the number of
Common Shares issuable hereunder and (ii) 150% of the maximum number of shares
of Common Stock issuable upon exercise of the Warrants issued at the Closing
(without taking into account any limitations on the exercise of the Warrants
set
forth in the Warrants).
(m) Conduct
of Business.
The
business of the Company and its Subsidiaries shall not be conducted in violation
of any law, ordinance or regulation of any governmental entity, except where
such violations would not result, either individually or in the aggregate,
in a
Material Adverse Effect.
(n) Additional
Issuances of Securities.
(i) For
purposes of this Section 4(n), the following definitions shall
apply.
(1) "Convertible
Securities"
means
any stock or securities (other than Options) convertible into or exercisable
or
exchangeable for shares of Common
Stock.
(2) "Options"
means
any rights, warrants or options to subscribe for or purchase shares of
Common
Stock or
Convertible Securities.
(3) "Common
Stock Equivalents"
means,
collectively, Options and Convertible Securities.
(ii) From
the
date hereof until the date that is one hundred and eighty (180) Trading Days
(as
defined in the Warrants) following the Effective Date (as defined in the
Registration Rights Agreement) (the "Trigger
Date"),
the
Company will not, directly or indirectly, file any registration statement with
the SEC other than the Registration Statement (as defined in the Registration
Rights Agreement). From the date hereof until the Trigger Date, 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 its 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
shares of Common Stock or Common Stock Equivalents (any such offer, sale, grant,
disposition or announcement being referred to as a "Subsequent
Placement").
(iii) From
the
Trigger Date until the second anniversary of the Closing Date, the Company
will
not, directly or indirectly, effect any Subsequent Placement unless the Company
shall have first complied with this Section 4(n)(iii).
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21 -
(1) The
Company shall deliver to each Buyer an irrevocable written notice
(the "Offer
Notice")
of any
proposed or intended issuance or sale or exchange (the "Offer")
of the
securities being offered (the "Offered
Securities")
in a
Subsequent Placement, which Offer Notice 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 such Buyers the Offered Securities, allocated among such Buyers
(a) based on such Buyer's pro rata portion of the number of Common Shares
purchased hereunder (the "Basic
Amount"),
and
(b) with respect to each Buyer that elects to purchase its Basic Amount, any
additional portion of the Offered Securities attributable to the Basic Amounts
of other Buyers as such Buyer shall indicate it will purchase or acquire should
the other Buyers subscribe for less than their Basic Amounts (the "Undersubscription
Amount"),
which
process shall be repeated until the Buyers shall have an opportunity to
subscribe for any remaining Undersubscription Amount.
(2) To
accept
an Offer, in whole or in part, such Buyer must deliver a written notice to
the
Company prior to the end of the tenth (10th)
Business Day after such Buyer's receipt of the Offer Notice (the "Offer
Period"),
setting forth the portion of such Buyer's Basic Amount that such Buyer elects
to
purchase and, if such Buyer shall elect to purchase all of its Basic Amount,
the
Undersubscription Amount, if any, that such Buyer elects to purchase (in either
case, the "Notice
of Acceptance");
provided,
however,
that
such Buyers may not accept an Offer by electing to purchase less than 5% of
the
Offered Securities on an aggregate basis. If the Basic Amounts subscribed for
by
all Buyers are less than the total of all of the Basic Amounts, then each Buyer
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
Buyer who has subscribed for any Undersubscription Amount shall be entitled
to
purchase only that portion of the Available Undersubscription Amount as the
Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that
have subscribed for Undersubscription Amounts, subject to rounding by the
Company to the extent its deems reasonably necessary.
(3) The
Company shall have fifteen (15) Business Days from the expiration of the Offer
Period above to offer, 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 Buyers
(the "Refused
Securities"),
but
only to the offerees described in the Offer Notice (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 Notice and
(ii) to publicly announce (a) the execution of such Subsequent Placement
Agreement, and (b) either (x) the consummation of the transactions contemplated
by such Subsequent Placement Agreement or (y) the termination of such Subsequent
Placement Agreement, which shall be filed with the SEC on a Current Report
on
Form 8-K with such Subsequent Placement Agreement and any documents contemplated
therein filed as exhibits thereto.
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22 -
(4) 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
4(n)(iii)(3) above), then each Buyer 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 such Buyer elected to purchase pursuant
to
Section 4(n)(iii)(2) 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 Buyers pursuant to Section 4(n)(iii)(3) 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 Buyer 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 Buyers in accordance with Section 4(n)(iii)(1)
above.
(5) Upon
the
closing of the issuance, sale or exchange of all or less than all of the Refused
Securities, the Buyers shall acquire from the Company, and the Company shall
issue to the Buyers, the number or amount of Offered Securities specified in
the
Notices of Acceptance, as reduced pursuant to Section 4(p)(iii)(3) above if
the
Buyers have so elected, upon the terms and conditions specified in the Offer.
Notwithstanding anything to the contrary contained in this Agreement, if the
Company does not consummate the closing of the issuance, sale or exchange of
all
or less than all of the Refused Securities within fifteen (15) Business Days
of
the expiration of the Offer Period, the Company shall issue to the Buyers the
number or amount of Offered Securities specified in the Notices of Acceptance,
as reduced pursuant to Section 4(n)(iii)(4) above if the Buyers have so elected,
upon the terms and conditions specified in the Offer. The purchase by the Buyers
of any Offered Securities is subject in all cases to the preparation, execution
and delivery by the Company and the Buyers of a purchase agreement relating
to
such Offered Securities reasonably satisfactory in form and substance to the
Buyers and their respective counsel.
(6) Any
Offered Securities not acquired by the Buyers or other persons in accordance
with Section 4(o)(iii)(3) above may not be issued, sold or exchanged until
they
are again offered to the Buyers under the procedures specified in this
Agreement.
(7) The
Company and the Buyers agree that if any Buyer elects to participate in the
Offer, (x) neither the Subsequent Placement Agreement with respect to such
Offer
nor any other transaction documents related thereto (collectively, the
"Subsequent
Placement Documents")
shall
include any term or provisions whereby any Buyer shall be required to agree
to
any restrictions in trading as to any securities of the Company owned by such
Buyer prior to such Subsequent Placement, and (y) any registration rights set
forth in such Subsequent Placement Documents shall be similar in all material
respects to the registration rights contained in the Registration Rights
Agreement.
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23 -
(8) Notwithstanding
anything to the contrary in this Section 4(o) and unless otherwise agreed to
by
the Buyers, the Company shall either confirm in writing to the Buyers that
the
transaction with respect to the Subsequent Placement has been abandoned or
shall
publicly disclose its intention to issue the Offered Securities, in either
case
in such a manner such that the Buyers will not be in possession of material
non-public information, by the fifteen (15th)
Business Day following delivery of the Offer Notice. If by the fifteen
(15th)
following delivery of the Offer Notice no public disclosure regarding a
transaction with respect to the Offered Securities has been made, and no notice
regarding the abandonment of such transaction has been received by the Buyers,
such transaction shall be deemed to have been abandoned and the Buyers shall
not
be deemed to be in possession of any material, non-public information with
respect to the Company. Should the Company decide to pursue such transaction
with respect to the Offered Securities, the Company shall provide each Buyer
with another Offer Notice and each Buyer will again have the right of
participation set forth in this Section 4(n)(iii). The Company shall not be
permitted to deliver more than one such Offer Notice to the Buyers in any 60
day
period.
(iv) The
restrictions contained in subsections (ii) and (iii) of this Section 4(n) shall
not apply in connection with the issuance of any Excluded Securities (as defined
in the Warrants).
(o) Exchange
Agreement.
Neither
the Company nor Ever Leader may amend or waive any provision of the Exchange
Agreement without the consent of the Buyers holding at least a majority of
the
number of Registrable Securities issued and issuable hereunder.
(p) D&O
Insurance; Corporate Governance.
As soon
as practicable, but in no event later than 90 days after the Closing Date,
the
Company shall (i) obtain directors and officers insurance coverage for its
directors and officers in coverage and amounts determined reasonably sufficient
by the Company's Board of Directors, consistent with other similarly situated
companies in the same industry and (ii) institute corporate governance
procedures necessary to effect the listing of the Company's Common Stock on
The
NASDAQ Capital Market.
(q) Listing
on The NASDAQ Capital Market.
As soon
as practicable, but in no event later than 120 days after the Closing Date,
the
Company shall file a listing application with The NASDAQ Capital Market with
respect to the Company's Common Stock and all of the Registrable Securities,
and
the Company shall use its best efforts to cause such securities to be listed
on
The NASDAQ Capital Market as soon as practicable thereafter.
(r) Audited
Financial Statements.
On or
prior to the date which is sixty (60) days after the Closing Date (the
"Audited
Financial Statement Delivery Deadline"),
the
Company shall deliver to the Buyers its financial statements for the years
ending December 31, 2004 and December 31, 2005, audited by Xxxxxxxxx &
Company, LP, prepared in accordance with generally accepted accounting
principles, consistently applied, during each year involved (except as may
be
otherwise indicated in such financial statements or the notes thereto) and
fairly presenting in all material respects the financial position of the Company
as of the dates thereof and the results of its operations and cash flows for
each such year then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments).
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24 -
5. REGISTER;
TRANSFER AGENT INSTRUCTIONS.
(a) Register.
The
Company shall maintain at its principal executive offices (or such other office
or agency of the Company as it may designate by notice to each holder of
Securities), a register for the Units and the Common Shares and the Warrants
that comprise the Units in which the Company shall record the name and address
of the Person in whose name the Units, Common Shares and Warrants
have been issued (including the name and address of each transferee) and the
number of Warrant Shares issuable upon exercise of the Warrants held by such
Person. The Company shall keep the register open and available at all times
during business hours for inspection of any Buyer or its legal
representatives.
(b) Transfer
Agent Instructions.
The
Company shall issue irrevocable instructions to its transfer agent, and any
subsequent transfer agent, to issue certificates or credit shares to the
applicable balance accounts at The Depository Trust Company ("DTC"),
registered in the name of each Buyer or its respective nominee(s), for the
Warrant Shares issued upon exercise of the Warrants in such amounts as specified
from time to time by each Buyer to the Company upon exercise of the Warrants
in
the form of Exhibit
D
attached
hereto (the "Irrevocable
Transfer Agent Instructions").
The
Company warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 5(b), and stop transfer instructions
to
give effect to Section 2(g) hereof, will be given by the Company to its transfer
agent, and that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this Agreement
and the other Transaction Documents. If a Buyer effects a sale, assignment
or
transfer of the Securities in accordance with Section 2(f), the Company shall
permit the transfer and shall promptly instruct its transfer agent to issue
one
or more certificates or credit shares to the applicable balance accounts at
DTC
in such name and in such denominations as specified by such Buyer to effect
such
sale, transfer or assignment. In the event that such sale, assignment or
transfer involves Warrant Shares sold, assigned or transferred pursuant to
an
effective registration statement or pursuant to Rule 144, the transfer agent
shall issue such Securities to the Buyer, assignee or transferee, as the case
may be, without any restrictive legend.
(c) Breach.
The
Company acknowledges that a breach by it of its obligations hereunder will
cause
irreparable harm to a Buyer. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Section 5 will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 5, that a Buyer shall be entitled,
in
addition to all other available remedies, to an order and/or injunction
restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security
being required.
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25 -
(d) Additional
Relief.
If the
Company shall fail for any reason or for no reason to issue to such holder
unlegended certificates within three (3) Business Days of receipt of documents
necessary for the removal of legend set forth above (the "Deadline
Date"),
then,
in addition to all other remedies available to the holder, if on or after the
Trading Day (as defined in the Warrant) immediately following such three
Business Day period, the holder purchases (in an open market transaction or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
holder of shares of Common Stock that the holder anticipated receiving from
the
Company (a "Buy-In"),
then
the Company shall, within three Business Days after the holder's request and
in
the holder's discretion, either (i) pay cash to the holder in an amount equal
to
the holder's total purchase price (including brokerage commissions, if any)
for
the shares of Common Stock so purchased (the "Buy-In
Price"),
at
which point the Company's obligation to deliver such certificate (and to issue
such shares of Common Stock) shall terminate, or (ii) promptly honor its
obligation to deliver to the holder a certificate or certificates representing
such shares of Common Stock and pay cash to the holder in an amount equal to
the
excess (if any) of the Buy-In Price over the product of (A) such number of
shares of Common Stock, times (B) the Closing Bid Price on the Deadline Date.
"Closing
Bid Price"
means,
for any security as of any date, the last closing price for such security on
the
Principal Market, as reported by Bloomberg, or, if the Principal Market begins
to operate on an extended hours basis and does not designate the closing bid
price then the last bid price of such security prior to 4:00:00 p.m., New York
Time, as reported by Bloomberg, or, if the Principal Market is not the principal
securities exchange or trading market for such security, the last closing price
of such security on the principal securities exchange or trading market where
such security is listed or traded as reported by Bloomberg, or if the foregoing
do not apply, the last closing price of such security in the over-the-counter
market on the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price is reported for such security by
Bloomberg, the average of the bid prices of any market makers for such security
as reported in the "pink sheets" by Pink Sheets LLC (formerly the National
Quotation Bureau, Inc.). If the Closing Bid Price cannot be calculated for
a
security on a particular date on any of the foregoing bases, the Closing Bid
Price of such security on such date shall be the fair market value as mutually
determined by the Company and the holder. If the Company and the holder are
unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 12 of the Warrants. All such
determinations to be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during the applicable calculation
period.
6. CONDITIONS
TO THE COMPANY'S OBLIGATION TO SELL.
The
obligation of the Company hereunder to issue and sell the Units to each Buyer
at
the Closing is subject to the satisfaction, at or before the Closing Date,
of
each of the following conditions, provided that these conditions are for the
Company's sole benefit and may be waived by the Company at any time in its
sole
discretion by providing each Buyer with prior written notice
thereof:
(i) Such
Buyer shall have executed each of the Transaction Documents to which it is
a
party and delivered the same to the Company.
(ii) Such
Buyer and each other Buyer shall have delivered to the Escrow Agent the Purchase
Price for the Units being purchased by such Buyer at the Closing by wire
transfer of immediately available funds pursuant to the wire instructions
provided by the Company.
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26 -
(iii) The
representations and warranties of such Buyer shall be true and correct in all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all 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 shall be true and correct as of such specified
date), and such Buyer 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 such Buyer at or prior
to the Closing Date.
(iv) Contemporaneously
with the Closing, the transactions contemplated in the Exchange Agreement shall
have been consummated.
(v) Buyers
shall have purchased Units representing not less than $10 million of the
aggregate Purchase Price.
7. CONDITIONS
TO EACH BUYER'S OBLIGATION TO PURCHASE.
The
obligation of each Buyer hereunder to purchase the Units at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for each Buyer's sole
benefit and may be waived by such Buyer at any time in its sole discretion
by
providing the Company with prior written notice thereof:
(i) The
Company shall have duly executed and delivered to such Buyer (i) each of the
Transaction Documents and (ii) the Common Shares (allocated in such number
as
such Buyer shall request), being purchased by such Buyer at the Closing pursuant
to this Agreement, and (iii) the related Warrants (allocated in such amounts
as
such Buyer shall request) being purchased by such Buyer at the Closing pursuant
to this Agreement.
(ii) Such
Buyer shall have received the opinion of Xxxxxx & Xxxxxx, LLP, Ever Leader's
outside counsel, dated as of the Closing Date, in substantially the form of
Exhibit E
attached
hereto.
(iii) The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer
Agent Instructions, in the form of Exhibit D
attached
hereto, which instructions shall have been delivered to and acknowledged in
writing by the Company's transfer agent.
(iv) The
Company shall have delivered to such Buyer a certificate evidencing the
formation and good standing of the Company and each of its Subsidiaries in
such
entity's jurisdiction of formation issued by the Secretary of State (or
comparable office) of such jurisdiction, as of a date within 10 days of the
Closing Date.
(v) The
Company shall have delivered to such Buyer a certificate evidencing the
Company's qualification as a foreign corporation and good standing issued by
the
Secretary of State (or comparable office) of each jurisdiction in which the
Company conducts business, as of a date within 10 days of the Closing
Date.
-
27 -
(vi) The
Company shall have delivered to such Buyer a certified copy of the Certificate
of Incorporation as certified by the Secretary of State of the State of Delaware
within ten (10) days of the Closing Date.
(vii) The
Company shall have delivered to such Buyer a certificate, executed by the
Secretary of the Company and dated as of the Closing Date, as to (i) the
resolutions consistent with Section 3(b) as adopted by the Company's Board
of
Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate
of
Incorporation and (iii) the Bylaws, each as in effect at the Closing, in the
form attached hereto as Exhibit F.
(viii) The
representations and warranties of the Company shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all 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 shall be true and correct as of such specified
date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by
the
Transaction Documents to be performed, satisfied or complied with by the Company
at or prior to the Closing Date. Such Buyer shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as of the Closing
Date, to the foregoing effect and as to such other matters as may be reasonably
requested by such Buyer in the form attached hereto as Exhibit
G.
(ix) The
Company shall have delivered to such Buyer a letter from the Company's transfer
agent certifying the number of shares of Common Stock outstanding as of a date
within five days of the Closing Date.
(x) The
Common Stock (I) shall be designated for quotation or listed on the Principal
Market and (II) shall not have been suspended, as of the Closing Date, by the
SEC or the Principal Market from trading on the Principal Market nor shall
suspension by the SEC or the Principal Market have been threatened, as of the
Closing Date, either (A) in writing by the SEC or the Principal Market or (B)
by
falling below the minimum listing maintenance requirements of the Principal
Market, if any.
(xi) The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the sale of the Securities.
(xii) The
Company shall have executed and delivered to such Buyer a fully executed copy
of
the Make Good Agreement and the Make Good Escrow Agreement.
(xiii) Each
of
Xx. Xxxxxx Xxx, Ms. Xxx Xx and Moveup Investments Limited shall have entered
into a Lock-Up Agreement in the form attached hereto as Exhibit
J
(the
"Lock-Up
Agreements").
(xiv) Prior
to
the Closing, the transactions contemplated by the Exchange Agreement shall
have
been consummated and none of the conditions to closing contained in the Exchange
Agreement shall have been waived or amended unless the Buyers holding at least
a
majority of the number of Registrable Securities issued and issuable hereunder
shall have approved such waiver or amendment.
-
28 -
(xv) Buyers
shall have purchased Units representing not less than $10 million of the
aggregate Purchase Price.
(xvi) Contemporaneously
with the Closing, the Company shall file with the SEC a Current Report on Form
8-K, which shall include financial statements of the Company and its
Subsidiaries for the period ending September 30, 2006, which have been reviewed
by Xxxxxxxxx & Company, LP and have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary statements)
and
which fairly present in all material respects the financial position of the
Company as of September 30, 2006 and the results of its operations and cash
flows for the period ended September 30, 2006, subject to normal year-end audit
adjustments.
(xvii) The
Company shall have delivered to such Buyer such other documents relating to
the
transactions contemplated by this Agreement as such Buyer or its counsel may
reasonably request.
8. TERMINATION.
In
the
event that the Closing shall not have occurred with respect to a Buyer on or
before five (5) Business Days from the date hereof due to the Company's or
such
Buyer's failure to satisfy the conditions set forth in Sections 6 and 7 above
(and the nonbreaching party's failure to waive such unsatisfied condition(s)),
the nonbreaching party shall have the option to terminate this Agreement with
respect to such breaching party at the close of business on such date without
liability of any party to any other party; provided,
however,
that if
this Agreement is terminated pursuant to this Section 8, Ever Leader and the
Company shall remain obligated to reimburse the non-breaching Buyers for the
expenses described in Section 4(g) above.
9. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits 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 hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of 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 to such party at the address for such 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.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
-
29 -
(b) Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
(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 in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Entire
Agreement; Amendments.
This
Agreement and the other Transaction Documents supersede all other prior oral
or
written agreements between the Buyers, the Company, their affiliates and Persons
acting on their behalf with respect to the matters discussed herein, and this
Agreement, the other Transaction Documents and the instruments referenced herein
and therein 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 any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision
of
this Agreement may be amended other than by an instrument in writing signed
by
the Company and the holders of at least a majority of the aggregate number
of
Registrable Securities issued and issuable hereunder, and any amendment to
this
Agreement made in conformity with the provisions of this Section 9(e) shall
be
binding on all Buyers and holders of Securities as applicable. No provision
hereof may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought. No such amendment shall be effective to
the
extent that it applies to less than all of the holders of the applicable
Securities then outstanding. No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of
any
of the Transaction Documents unless the same consideration also is offered
to
all of the parties to the Transaction Documents, and the holders of the
Warrants. The Company has not, directly or indirectly, made any agreements
with
any Buyers relating to the terms or conditions of the transactions contemplated
by the Transaction Documents except as set forth in the Transaction Documents.
Without limiting the foregoing, the Company confirms that, except as set forth
in this Agreement, no Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company or otherwise.
-
30 -
(f) Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with an overnight courier service,
in
each case properly addressed to the party to receive the same. The addresses
and
facsimile numbers for such communications shall be:
If
to
Company (prior to consummation of the transactions contemplated by the Exchange
Agreement):
Applied
Spectrum Technologies, Inc.,
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention:
Xxxxx
Xxxxxxx, President
and
If
to the
Company or Ever Leader (after consummation of the transactions contemplated
by
the Exchange Agreement):
00/X,
Xxxxxxxxxx Xxxxx, 0 Xxxxxxxx Xx
Xxxxx
000000, P.R. China
Telephone: x0
(00
00) 0000-0000
Facsimile: x0
(00
00) 0000-0000
Attention:
Xxxxxx
Xxx
with
a
copy to:
Xxxxxx
& Jaclin, LLP
000
Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Attention:
Xxxxxxx
X. Xxxxxx, Esq.
If
to a
Buyer, to its address and facsimile number set forth on the Schedule of Buyers,
with copies to such Buyer's representatives as set forth on the Schedule of
Buyers,
-
31 -
with
a
copy (for informational purposes only) to:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
X. Xxxxx, Esq.
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
(g) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, including any purchasers of the Common
Shares or the Warrants. The Company shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the holders
of at least a majority of the aggregate number of Registrable Securities issued
and issuable hereunder, including by way of a Fundamental Transaction (unless
the Company is in compliance with the applicable provisions governing
Fundamental Transactions set forth in the Warrants). A Buyer may assign some
or
all of its rights hereunder without the consent of the Company, in which event
such assignee shall be deemed to be a Buyer hereunder with respect to such
assigned rights
(h) No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
(i) Survival.
Unless
this Agreement is terminated under Section 8, the representations and warranties
of the Company and the Buyers contained in Sections 2 and 3, and the agreements
and covenants set forth in Sections 4, 5 and 9 shall survive the Closing. Each
Buyer shall be responsible only for its own representations, warranties,
agreements and covenants hereunder.
(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 any 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.
-
32 -
(k) Indemnification.
In
consideration of each Buyer's execution and delivery of the Transaction
Documents and acquiring the Securities thereunder and in addition to all of
the
Company's other obligations under the Transaction Documents, the Company shall
defend, protect, indemnify and hold harmless each Buyer and each other holder
of
the Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing
Persons' agents or other representatives (including, without limitation, those
retained in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees")
from
and against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys' fees
and disbursements (the "Indemnified
Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to
(a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents
or
any other certificate, instrument or document contemplated hereby or thereby
or
(c) any cause of action, suit or claim brought or made against such Indemnitee
by a third party (including for these purposes a derivative action brought
on
behalf of the Company) and arising out of or resulting from (i) the execution,
delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (ii) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Securities, (iii) any
disclosure made by such Buyer pursuant to Section 4(i), or (iv) the status
of
such Buyer or holder of the Securities as an investor in the Company pursuant
to
the transactions contemplated by the Transaction Documents. To the extent that
the foregoing undertaking by the Company may be unenforceable for any reason,
the Company shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities that is permissible under applicable
law.
Except as otherwise set forth herein, the mechanics and procedures with respect
to the rights and obligations under this Section 9(k) shall be the same as
those
set forth in Section 6 of the Registration Rights Agreement.
(l) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
(m) Remedies.
Each
Buyer and each holder of the Securities shall have all rights and remedies
set
forth in the Transaction Documents and all rights and remedies which such
holders have been granted at any time under any other agreement or contract
and
all of the rights which such holders have under any law. Any Person having
any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it fails to perform, observe, or discharge any or all
of
its obligations under the Transaction Documents, any remedy at law may prove
to
be inadequate relief to the Buyers. The Company therefore agrees that the Buyers
shall be entitled to seek temporary and permanent injunctive relief in any
such
case without the necessity of proving actual damages and without posting a
bond
or other security.
(n) Rescission
and
Withdrawal Right.
Notwithstanding anything to the contrary contained in (and without limiting
any
similar provisions of) the Transaction Documents, whenever any Buyer 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 Buyer 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.
-
33 -
(o) Payment
Set Aside.
To the
extent that the Company makes a payment or payments to the Buyers hereunder
or
pursuant to any of the other Transaction Documents or the Buyers enforce or
exercise their 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, a trustee, receiver or any other Person under any
law
(including, without limitation, any bankruptcy law, foreign, 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.
(p) Independent
Nature of Buyers' Obligations and Rights.
The
obligations of each Buyer under any Transaction Document are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible
in any way for the performance of the obligations of any other Buyer under
any
Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Buyer pursuant hereto or thereto, shall
be
deemed to constitute the Buyers as, and the Company acknowledges that the Buyers
do not so constitute, a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Buyers are in any way
acting in concert or as a group, and the Company will not assert any such claim
with respect to such obligations or the transactions contemplated by the
Transaction Documents and the Company acknowledges that the Buyers are not
acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. The Company acknowledges
and each Buyer confirms that it has independently participated in the
negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Each Buyer shall be entitled to independently protect
and
enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of any other Transaction Documents, and it shall not
be
necessary for any other Buyer to be joined as an additional party in any
proceeding for such purpose.
(q) Agent
for Service of Process (i)
Each
of the Company and Ever Leader (the "Foreign
Parties")
hereby
irrevocably appoints National Corporate Research, Ltd., of 000
Xxxx
00xx
Xxxxxx,
Xxxxx 000, Xxx Xxxx, X.X. 00000, X.X.X. ("NCR")
as its
agent for the receipt of service of process in the United States. Each Foreign
Party agrees that any document may be effectively served on it in connection
with any action, suit or proceeding in the United States by service on its
agents. Each of the Buyers consents and agrees that each Foreign Party may,
in
its reasonable discretion, irrevocably appoint a substitute agent for the
receipt of service of process located within the Untied States, and that upon
such appointment, the appointment of NCR may be revoked.
(ii)
Any
document shall be deemed to have been duly served if marked for the attention
of
the agent at its address as set forth in this Section 9(q) or such other address
in the United States as may be notified to the party wishing to serve the
document and (a) left at the specified address if its receipt is acknowledged
in
writing; or (b) sent to the specified address by post, registered mail return
receipt requested. In the case of (a), the document will be deemed to have
been
duly served when it is left and signed for. In the case of (b), the document
shall be deemed to have been duly served when received and
acknowledged.
-
34 -
(iii)
If
any Foreign Party's agent at any time ceases for any reason to act as such,
such
Foreign Party shall promptly appoint a replacement agent having an address
for
service in the United States and shall promptly notify the each holder of Common
Shares at such time of the name and address of the replacement agent. Failing
such appointment and notification, the holders of a majority of the Common
Shares at such time shall be entitled by notice to such Foreign Party to appoint
a replacement agent to act on such Foreign Party's behalf. The provisions of
this Section 9(q) applying to service on an agent apply equally to service
on a
replacement agent.
(r) Currency.
As used
herein, "Dollar", "US Dollar" and "$" each mean the lawful money of the United
States.
[Signature
Page Follows]
-
35 -
IN
WITNESS WHEREOF,
each
Buyer, Ever Leader and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first
written above.
|
COMPANY:
|
|
|
APPLIED
SPECTRUM TECHNOLOGIES, INC.
By: /s/
Xxxxxx
Xxx
Name:
Xxxxxx Xxx
Title:
Vice President
|
|
|
EVER
LEADER:
|
|
|
EVER
LEADER HOLDINGS LIMITED
By: /s/
Xxxxxx
Xxx
Name:
Xxxxxx Xxx
Title:
Chief Executive Officer
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
ACCELERA
VENTURES LIMITED
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxx Thai
Xxxxx
Name: Xxxxxx
Xxx Thai Xxxxx
Title:
Director
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
X. XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx X.
Xxxxxxxx
Name:
Xxxx X. Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
ANIMA
S.G.R.P.A. RUBRICA - ANIMA ASIA
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxx
Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Fund
Manager
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
ANIMA
S.G.R.P.A. RUBRICA - ANIMA EMERGING MARKETS
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxx
Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: Fund
Manager
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
BANCA
GESFID
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxx
Deli
Name:
Xxxxxxxx Deli
Title: Director
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
X. XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx X.
Xxxxxxxx
Name:
Xxxxxx X. Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
BH
CAPITAL INVESTMENTS LP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: President
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
X. XXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
X. XXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx X.
Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
EXCALIBER
LIMITED PARTNERSHIP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
President & General Partner
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
EXCALIBER
LIMITED PARTNERSHIP II
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title:
President & General Partner
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
F
XXXXXX CO LP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxxx
Xxxxxx
Name: Xxxxxxxxx
Xxxxxx, GP
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
X. XXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
X. XXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
X. XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
X.
Xxxxxxxx
Name: Xxxxxx
X. Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
XXXXXX XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/Xxxxx
Xxxxxx
Xxxxx
Name: Xxxxx
Xxxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
HALTER
XXXX USX CHINA FUND
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
X.
Xxxx
Name: Xxxxxxx
X. Xxxx
Title: President
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
XXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
HEDGE
CAPITAL PARTNERS LLC
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title: Managing
Member
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
AND XXXXXX XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx and Xxxxxx
Xxxxxxxx
Name: Xxxx
and Xxxxxx Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
X. XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
X.
Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
JAYHAWK
PRIVATE EQUITY FUND, L.P.
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx X.
Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title: CFO
of GP
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
X. XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx X.
Xxxxx
Name: Xxxx
X. Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
XXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxx
Name: Xxxxx
Xxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
X. LAVISH
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/ Xxxxx
X.
Lavish
Name: Xxxxx
X. Lavish
Title:
Chief Operating Officer; Director
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
XXXXX & XXXXXX XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx Xxxxx & Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx & Xxxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
XXXXXXX XXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
|
|
IN
IN WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXXXXXX
XXXXXXX & XXXXXXXX XXXX XXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxxxxx XxXxxxx & Xxxxxxxx Xxxx
XxXxxxx
Name: Xxxxxxxxxxx
XxXxxxx & Xxxxxxxx Xxxx XxXxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
MCF
NAVIGATOR MASTER FUND, LTD.
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Title: Chief
Executive Officer
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
X. XXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXX
XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXX
& XXXXXXXX XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx & Xxxxxxxx
Xxxxx
Name: Xxxxxxx
& Xxxxxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
MIDSOUTH
INVESTOR FUND LP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
NITE
CAPITAL LP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
Manager
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXX
X. X’XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx X.
X’Xxxxxxxx
Name: Xxxxxxx
X. X’Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXX
X. XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXX
X. XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx X.
Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
INVESTMENTS LLC
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title:
President, Manager
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
PROFESSIONAL
OFFSHORE OPPORTUNITY FUND, LTD.
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Title:
Manager
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
X. XXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
RFJM
PARTNERS LLC
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Managing
Member
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
ROCK
ASSOCIATES
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxxxxxxx
Name: Xxxxxx
Xxxxxxxx
Title: Vice
President
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
XXXXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxxxxxxxxx
Name: Xxxxxx
Xxxxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXX
XXXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxx
Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXX
XXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxx
Xxxxxxx
Name: Xxx
Xxxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
SILVER
ROCK I, LTD.
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Ruria
Salam
Name:
Ruria Salam
Title: Director
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
SILICON
PRAIRIE PARTNERS
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Managing
Director
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
SIMGEST
SPA
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxx
Xxxxxxxx
Name: Xxxxx
Xxxxxxxx
Title: President
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXX
XXXX XXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/ Xxxxxxx
Xxxx
Xxxxxx
Name: Xxxxxxx
Xxxx Xxxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXXXXXX
XXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
Xxxxx
Title:
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
WHITE
SAND INVESTOR GROUP
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/
Xxxxxxx
Xxxxxxxxx
XX
Name: Xxxxxxx
Xxxxxxxxx XX
Title: President;
Corporate GP
|
|
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Securities Purchase Agreement to be duly executed as of the date first written
above.
|
BUYERS:
|
|
|
XXXX
X. XXXXXX & XXXXXX XXXXXXXX
|
|
|
Print
Name of Investor(s)
|
|
|
By: /s/ Xxxx
X. Xxxxxx & Xxxxxx
Xxxxxxxx
Name: Xxxx
X. Xxxxxx & Xxxxxx Xxxxxxxx
Title:
|
|
SCHEDULE
OF BUYERS
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Accelera
Ventures Limited
|
East
Asia Xxxxxxxx
P.O.
Box 901
Road
Town, Tortola
B.V.I.
Attention:
Xxxxxx Xxx Thai Xxxxx
Facsimile:
(000) 0000 0000
Telephone:
(000) 0000 0000
Residence:
Hong Kong
|
6
|
$150,000
|
N/A
|
|
Xxxx
X. Xxxxxxxx
|
0000
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
Anima
S.G.R.p.A. Rubrica - Anima Asia
|
Xxx
Xxxxx, 00
Xxxxxx,
XX, 00000
Xxxxx
Attention:
Xxxxxxxx Xxxxxxxxx
Facsimile:
00 00 000000
Telephone:
00 00 00000000
Residence:
Italy
|
20
|
$500,000
|
N/A
|
|
Anima
S.G.R.p.A. Rubrica - Anima Emerging Markets
|
Xxx
Xxxxx, 00
Xxxxxx,
XX, 00000
Xxxxx
Attention:
Xxxxxxxx Xxxxxxxxx
Facsimile:
00 00 000000
Telephone:
00 00 00000000
Residence:
Italy
|
12
|
$300,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Banca
Gesfid
|
Xxx
Xxxxxxx 00x
Xxxxxxx
Xxxxxxx 0000
6901,
CH, Lugano
Attention:
Xxxxxxxx Deli
Facsimile:
00 00 000 0000
Telephone:
00 00 000 0000
Residence:
Switzerland
|
48
|
$1,200,000
|
N/A
|
|
Xxxxxx
X. Xxxxxxxx
|
000
Xxxxxxxx Xxxxx
Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
BH
Capital Investments LP
|
X/X
Xxxxxxxx Xxxxxxxxxxxxx
000
Xxxxx Xxxxxx Xxxx
Xxxxx
Xxxxx, 0xx Floor
Toronto,
Ontario M4W 3RB
Attention:
Xxxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Canada
|
8
|
$200,000
|
N/A
|
|
Xxxxx
X. Xxxxxx
|
0000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Texas
|
1
|
$25,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxxx
X. Xxxxxxx Xx. & Xxxx X. Xxxxxxx
|
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx Xx.
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Connecticut
|
6
|
$150,000
|
N/A
|
|
Excalibur
Limited Partnership
|
00
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxxx Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Canada
|
24
|
$600,000
|
N/A
|
|
Excalibur
Limited Partnership II
|
00
Xxxxxx Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxxx Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Canada
|
12
|
$300,000
|
N/X
|
|
X
Xxxxxx Co LP
|
000
Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxxxx Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
3
|
$75,000
|
N/A
|
|
Xxxxxx
X. Xxxxxx
|
000
Xxxx Xxx Xxxxxx, Xxxxxxxxx 0X
Xxx
Xxxx, XX 00000
Attention:
Xxxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
2
|
$50,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxx
X. Xxxxxx
|
0000
Xxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
Xxxxxx
X. Xxxxxxxx
|
0000
Xxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Texas
|
1
|
$25,000
|
N/A
|
|
Xxxxx
Xxxxxx Xxxxx
|
0000
Xxx Xxxxx Xxxxx
Xxxxxxx
Xxxxx, XX 00000
Attention:
Xxxxx Xxxxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
Halter
Xxxx USX China Fund
|
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Tennessee
|
4
|
$100,000
|
N/A
|
|
Xxxxx
Xxxxxxx
|
000
Xxxxx Xxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxx Xxxxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
Canada
|
3
|
$75,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Hedge
Capital Partners LLC
|
00
Xxxxxxxxxx Xxxx
Xxxxx
000 Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
3
|
$75,000
|
N/A
|
|
Xxxx
and Xxxxxx Xxxxxxxx as Tenants by the Entirety
|
0000
Xxxx Xxx Xxxx
Xxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Florida
|
1
|
$25,000
|
N/A
|
|
Xxxx
X. Xxxxxxxx
|
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxxx, XX 00000
Attention:
Xxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Texas
|
1
|
$25,000
|
N/A
|
|
Jayhawk
Private Equity Fund, L.P.
|
C/O
Jayhawk Capital Management, LLC
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx
Xxxxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Kansas
|
26
|
$650,000
|
N/A
|
|
Xxxx
X. Xxxxx
|
X.X.
Xxx 0000
Xxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Tennessee
|
1
|
$25,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxx
Xxxx
|
0000
0xx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxx Xxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
LKCM
Private Discipline Master Fund, SPC
|
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx
Xxxxx, XX 00000
Attention:
Xxxxx X. Lavish
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Cayman Islands
|
4
|
$100,000
|
N/A
|
|
Xxxxxx
Xxxxx & Xxxxxx Xxxxx
|
00
Xxxxxx Xxxxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Xxxxxx Xxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Canada
|
2
|
$50,000
|
N/A
|
|
Xxxx
Xxxxxxx XXX
|
000
Xxxxx Xxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attention:
Xxxx Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Connecticut
|
1
|
$25,000
|
N/A
|
|
Xxxxxxxxxxx
XxXxxxx & Xxxxxxxx Xxxx XxXxxxx
|
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxxxxxxx XxXxxxx
Telephone:
(000) 000-0000
Residence:
Connecticut
|
1
|
$25,000
|
N/A
|
|
MCF
Navigator Master Fund, Ltd.
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Cayman Islands
|
4
|
$100,000
|
Xxxxxxxx
Curhan Ford & Co. 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxxxxxx Xxxxxxx
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxxx
X. Xxxxxxx
|
000
X. 00xx Xxxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Colorado
|
2
|
$50,000
|
N/A
|
|
Xxxxxxx
Xxxxx
|
0000
Xxx Xxxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
Xxxx
Xxxxx
|
0000
Xxx Xxxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
California
|
2
|
$50,000
|
N/A
|
|
Xxxxxx
Xxxxx
|
0000
Xxx Xxxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxxxx
& Xxxxxxxx Xxxxx JTWROS
|
0000
X. 000xx Xxxxxx
Xxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
Nebraska
|
1
|
$25,000
|
N/A
|
|
Xxxxx
Xxxxx
|
0000
Xxx Xxxxxx Xxxxx
Xxxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx
Telephone:
(000) 000-0000
Residence:
California
|
1
|
$25,000
|
N/A
|
|
MidSouth
Investor Fund LP
|
0000
Xxxxxxxxx Xx. XX, Xxxxx 000 Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Tennessee
|
12
|
$300,000
|
N/A
|
|
Nite
Capital LP
|
000
Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Illinois
|
10
|
$250,000
|
N/A
|
|
Xxxxxxx
X. X'Xxxxxxxx
|
00
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx X. X'Xxxxxxxx
Telephone:
(000) 000-0000
Residence:
Massachusetts
|
1
|
$25,000
|
N/A
|
|
Xxxxxxx
X. Xxxxx
|
00
Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Maine
|
1
|
$25,000
|
N/A
|
|
Xxxxx
X. Xxxxxxxx
|
00
Xxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Colorado
|
2
|
$50,000
|
N/A
|
|
Xxxx
Investments LLC
|
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Tennessee
|
166
|
$4,150,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Professional
Offshore Opportunity Fund, Ltd.
|
0000
Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
British Virgin Islands
|
14
|
$350,000
|
N/A
|
|
Xxxxxx
X. Xxxxxx
|
000
Xxxxxxx Xxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Texas
|
1
|
$25,000
|
N/A
|
|
RFJM
Partners LLC
|
000
Xxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
2
|
$50,000
|
N/A
|
|
Rock
Associates
|
00
Xxxxxx Xxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
2
|
$50,000
|
N/A
|
|
Xxxxxx
Xxxxxxxxxx
|
0000
Xxxxx Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx X00 0X0
Attention:
Xxxxxx Xxxxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Canada
|
1
|
$25,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxxx
Xxxxxxxxx
|
00
Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
New York
|
1
|
$25,000
|
N/A
|
|
Xxx
Xxxxxxx
|
0
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxx Xxxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
South Carolina
|
1
|
$25,000
|
N/A
|
|
Silver
Rock I, Ltd.
|
Nagilo
Building Xxxx Xxxxxx X.X. Xxx 000
Xxxx
Xxxx, Xxxxxxx
B.V.I
Attention:
Xxxxx Xxxxxx
Facsimile:
Telephone:
0000 00000000
Residence:
British Virgin Islands
|
12
|
$300,000
|
N/A
|
|
Silicon
Prairie Partners
|
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
4
|
$100,000
|
N/A
|
|
Simgest
SpA
|
Xxx
Xxxxxxx 00
00000
- Xxxxxxx
Xxxxx
Attention:
Xxxxx Xxxxxxxx
Facsimile:
00 0000000000
Telephone:
00 0000000000
Residence:
Italy
|
30
|
$750,000
|
N/A
|
|
(1)
|
(2)
|
(3)
|
(4)
|
(5)
|
|
Buyer
|
Address
and
Facsimile
Number
|
Number
of Units
|
Purchase
Price
|
Legal
Representative's Address and Facsimile
Number
|
|
Xxxxxxx
Xxxx Xxxxxx
|
0000
Xxxx Xxxxxx, #000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxx Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
Texas
|
1
|
$25,000
|
N/A
|
|
Xxxxxxxx
Xxxxx
|
0
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxx
Facsimile:
Telephone:
(000) 000-0000
Residence:
New York
|
4
|
$100,000
|
N/A
|
|
White
Sand Investor Group, LP
|
000
Xxxxxxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxxxx XX
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
6
|
$150,000
|
N/A
|
|
Xxxxxx
Xxxxxxxx & Xxxx Xxxxxx JTWROS
|
0000
Xxxxxxxx Xxxxx
Xxxx
Xxxx, XX 00000
Attention:
Xxxx Xxxxxx
Facsimile:
(000) 000-0000
Telephone:
(000) 000-0000
Residence:
California
|
2
|
$50,000
|
N/A
|
EXHIBITS
|
Exhibit
A
|
Form
of Warrant
|
|
Exhibit
B
|
Form
of Registration Rights Agreement
|
|
Exhibit
C
|
Form
of Escrow Agreement
|
|
Exhibit
D
|
Form
of Irrevocable Transfer Agent Instructions
|
|
Exhibit
E-1
|
Form
of Opinion of Company’s Counsel
|
|
Exhibit
E-2
|
Form
of Opinion of Ever Leader’s Counsel
|
|
Exhibit
F
|
Form
of Secretary's Certificate
|
|
Exhibit
G
|
Form
of Officers Certificate
|
|
Exhibit
H
|
Form
of Make Good Agreement
|
|
Exhibit
I
|
Form
of Make Good Escrow Agreement
|
|
Exhibit
J
|
Form
of Lock-Up Agreement
|
SCHEDULES
|
Schedule
3(a)
|
Subsidiaries
|
|
Schedule
3(g)
|
Agents
|
|
Schedule
3(l)
|
Absence
of Certain Changes
|
|
Schedule
3(r)
|
Equity
Capitalization
|
|
Schedule
3(s)
|
Indebtedness
and Other Contracts
|
|
Schedule
3(t)
|
Absence
of Litigation
|
|
Schedule
3(w)
|
Title
|
|
Schedule
4(d)
|
Use
of Proceeds
|
