Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of
October 17, 2001, by and among RSA Security Inc., a Delaware corporation, with
headquarters located at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Company"), and the investors listed on the Schedule of Buyers attached hereto
(individually, a "Buyer" and collectively, the "Buyers").
WHEREAS:
A. The Company and the Buyers are executing and
delivering this Agreement in reliance upon the exemption from securities
registration afforded by Rule 506 of Regulation D ("Regulation D") as
promulgated by the United States Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended (the "1933 Act").
B. The Company has authorized the issuance of up to $50
million principal amount of its 7% Convertible Debentures due October 17, 2004
(collectively, the "Debentures"), which shall be convertible into shares of the
Company's common stock, par value $0.01 per share (the "Common Stock") (as
converted, the "Conversion Shares"), in accordance with the terms of the
Debentures.
C. The Buyers severally wish to purchase, upon the terms
and conditions stated in this Agreement, (i) an aggregate of up to $50 million
principal amount of Debentures on the Closing Date (as defined below), such
Debentures to be in the form attached hereto as Exhibit A (the "Debentures") in
the respective amounts set forth opposite each Buyer's name on the Schedule of
Buyers and (ii) warrants (the "Warrants") to purchase shares of Common Stock (as
exercised collectively, the "Warrant Shares"), such Warrants to be substantially
in the form attached hereto as Exhibit B.
D. Contemporaneously with the execution and delivery of
this Agreement, the parties hereto are executing and delivering a Registration
Rights Agreement substantially in the form attached hereto as Exhibit C (the
"Registration Rights Agreement") pursuant to which the Company has agreed to
provide the Buyers with the benefit of certain registration rights under the
1933 Act and the rules and regulations promulgated thereunder, and applicable
state securities laws, on the terms and subject to the conditions set forth
therein.
E. The location of defined terms in this Agreement is
set forth on the Index of Terms attached hereto.
NOW THEREFORE, the Company and the Buyers hereby agree as
follows:
1. PURCHASE AND SALE OF DEBENTURES AND WARRANTS.
a. Purchase of Debentures and Warrants. 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
agrees to purchase from the Company, the respective principal amount of
Debentures, together with the related Warrants, set forth opposite such Buyer's
name on the Schedule of Buyers (the "Closing").
b. The Closing. The date and time of the
Closing (the "Closing Date") shall be 10:00 a.m., New York City time, on October
17, 2001, subject to the satisfaction (or waiver) of the conditions set forth in
Sections 6 and 7. The Closing shall occur on the Closing Date at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
c. Form of Payment. On the Closing Date, (A)
each Buyer shall pay the Company for the Debentures and the related Warrants to
be issued and sold to such Buyer on the Closing Date, by wire transfer of
immediately available funds in accordance with the Company's written wire
instructions, less any amount withheld at the Closing for expenses pursuant to
Section 4(k), and (B) the Company shall deliver to each Buyer Debentures (in the
denominations as such Buyer shall reasonably request) representing the principal
amount of Debentures which such Buyer is then purchasing hereunder, along with
warrants representing the related Warrants, duly executed on behalf of the
Company and registered in the name of such Buyer.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
Each Buyer represents and warrants with respect to only itself
that:
a. Investment Purpose. Such Buyer (i) is
acquiring the Debentures and the Warrants, (ii) upon conversion of the
Debentures owned by it, will acquire the Conversion Shares then issuable, and
(iii) upon exercise of the Warrants held by it, will acquire the Warrant Shares
issuable upon exercise thereof (the Debentures, the Conversion Shares, the
Warrants and the Warrant Shares collectively are referred to herein as the
"Securities") for its own account for investment only 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, provided
further, however, that such disposition shall be in accordance with or pursuant
to a registration statement or an exemption under the 1933 Act.
b. Accredited Investor Status. Such Buyer is an
"accredited investor" as that term is defined in Rule 501(a)(3) of Regulation D
under the 1933 Act and was not organized for the specific purpose of acquiring
the Securities.
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 the United States
federal and state securities laws and that the Company is relying 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 and in the applicable Debenture or Warrant in order to determine
the availability of such exemptions and the eligibility of such Buyer to acquire
the Securities.
d. Information. Such Buyer (i) has been
furnished with or has had full access to all of the information that it
considers necessary or appropriate to make an informed investment decision with
respect to the Debentures, the Warrants, the Conversion
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Shares and the Warrant Shares and that it has requested from the Company, (ii)
has had an opportunity to discuss with management of the Company the business
and financial affairs of the Company and to obtain information (to the extent
the Company possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to it or to
which it had access, (iii) can bear the economic risk of a total loss of its
investment in the Debentures and the Warrants and (iv) has such knowledge and
experience in business and financial matters so as to enable it to understand
the risks of and form an investment decision with respect to its investment in
the Debentures, the Warrants, the Conversion Shares and the Warrant Shares and
to protect its interest in connection with such investment. 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
in this Agreement.
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.
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, or (B) such Buyer shall have
delivered to the Company an opinion of counsel in the form attached hereto as
Exhibit H, 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, (ii) any sale of the Securities made in reliance on Rule 144
promulgated under the 1933 Act (or a successor rule thereto) ("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 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 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
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, this Section 2(f); provided that in order to make any sale, transfer
or assignment of Securities, such Investor and its pledgee makes such
disposition in accordance with or pursuant to a registration statement or an
exemption under the 1933 Act.
g. Legends. Such Buyer understands that the
Debentures and Warrants, except as set forth below, shall bear a restrictive
legend in substantially the following form (and a stop-transfer order may be
placed against transfer of such Debentures and Warrants):
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THE SECURITIES REPRESENTED HEREBY 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 IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF
COUNSEL, IN THE FORM ATTACHED AS EXHIBIT H TO THE
SECURITIES PURCHASE AGREEMENT DATED OCTOBER 17, 2001
(A COPY OF WHICH IS ON FILE AT THE COMPANY'S
OFFICES), THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY THE
SECURITIES.
Such Buyer further understands that until such time
as the Conversion Shares and the Warrant Shares have been sold pursuant to the
registration statement contemplated by the Registration Rights Agreement, the
stock certificates representing the Conversion Shares and the Warrant Shares,
except as set forth below, shall bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of such
stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THEY MAY NOT BE OFFERED OR TRANSFERRED BY
SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNLESS (I) A
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE
ACT IS IN EFFECT OR (II) THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL, WHICH IS SATISFACTORY TO THE
COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT.
The legends set forth above shall be removed and the Company shall issue the
relevant securities without such legend to the holder of the Securities upon
which it is stamped, if, (i) such Securities are registered for resale under the
1933 Act and are transferred or sold pursuant to such registration or (ii) in
connection with a sale transaction, such holder provides the Company with an
opinion of counsel, in the form attached hereto as Exhibit H, to the effect that
a public
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sale, assignment or transfer of the Securities may be made without registration
under the 1933 Act.
h. Authorization; Enforcement; Validity. This
Agreement and the Registration Rights Agreement have been duly and validly
authorized, executed and delivered on behalf of such Buyer and are valid and
binding agreements of such Buyer enforceable against such Buyer in accordance
with their terms, subject as to enforceability to general principles of equity
and to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the
enforcement of applicable creditors' rights and remedies.
i. Residency. Such Buyer is a resident of that
country or state specified in its address on the Schedule of Buyers.
j. No Conflicts. The execution and performance
of this Agreement and the Registration Rights Agreement do not conflict with any
agreement to which such Buyer is a party or is bound thereby, any court order or
judgment addressed to such Buyer, or the constituent documents of such Buyer.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Buyers that
as of the date hereof:
a. Organization and Qualification. The Company
and its "Subsidiaries" (which for purposes of this Agreement means any entity in
which the Company, directly or indirectly, owns 25% or more of the capital stock
or other equity or similar interests or owns capital stock or holds an equity or
similar interest which ownership entitles the Company to elect 25% or more of
the board of directors or similar governing body of such entity) are
corporations, partnerships or limited liability companies duly organized and
validly existing in good standing (to the extent such concepts are applicable)
under the laws of the jurisdiction in which they are incorporated or organized,
and have the requisite corporate, limited liability company or partnership 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 corporation, partnership or limited liability company to do business and
is in good standing (to the extent such concepts are applicable) 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 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, prospects or condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole, or on the transactions contemplated
hereby or by the agreements and instruments to be entered into in connection
herewith, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents (as defined below). A complete list
of Subsidiaries is 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 Debentures, the Warrants, the
Registration Rights Agreement, the Irrevocable Transfer Agent Instructions (as
defined in Section 5) 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 it
of the transactions contemplated hereby and thereby, including, without
limitation, the issuance of the Debentures, the reservation for issuance and the
issuance of the Conversion Shares issuable upon conversion thereof, the issuance
of the Warrants and the reservation for issuance and the issuance of the Warrant
Shares issuable upon exercise of the Warrants, have been duly authorized by the
Company's Board of Directors and no further consent or authorization is required
of the Company's Board of Directors or stockholders (except to the extent that
stockholder approval may be required pursuant to the rules of the NASD for the
issuance of a number of Conversion Shares and Warrant Shares greater in the
aggregate than 19.99% of the number of shares of Common Stock outstanding
immediately prior to the Closing Date (the "19.99% Rule")). The Transaction
Documents have been duly executed and delivered by the Company. The Transaction
Documents constitute the valid and binding obligations of the Company
enforceable against the Company in accordance with their 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 creditors' rights and
remedies.
c. Capitalization. As of October 17, 2001, the
authorized capital stock of the Company consists of 300,000,000 shares of Common
Stock, of which as of such date, 56,191,048 shares are issued and outstanding,
5,951,938 shares are held in treasury (including 2,801,344 shares of treasury
stock that have been pledged as collateral to secure indebtedness of the Company
in the amount of $44.8 million), 40,351,886 shares are reserved for issuance
pursuant to the Company's stock option and purchase plans (including pursuant to
options outstanding as of such date as well as options granted thereafter), and
no other shares are issuable and reserved for issuance pursuant to securities
(other than the Debentures 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(c), (A) no shares of the
Company's capital stock are subject to preemptive rights or any other similar
rights (arising under Delaware law, Massachusetts law, the Company's Certificate
of Incorporation or By-laws or any agreement or instrument to which the Company
is a party) or any liens or encumbrances granted or created by the Company; (B)
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, any shares of 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 shares of 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, any
shares of capital stock of the Company or any of its Subsidiaries (other than
any such options, warrants, scrip, rights, calls, commitments, securities,
understandings and arrangement outstanding under plans disclosed in the SEC
Documents); (C) there are no outstanding debt securities, notes, credit
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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; (D) there are no
amounts outstanding under, and there will be no amounts due upon termination of,
any credit agreement or credit facility; (E) there are no financing statements
securing obligations in any amounts greater than $100,000, singly, or $2,500,000
in the aggregate, filed in connection with the Company or any of its
Subsidiaries; (F) 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 the Registration Rights Agreement);
(G) 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; (H) there are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities as described in this Agreement; (I)
the Company does not have any stock appreciation rights or "phantom" stock plans
or agreements or any similar plan or agreement; (J) to the Company's knowledge,
(i) no current or former officer or director who individually owns 1% or more of
the Company's outstanding capital stock or (ii) other beneficial owner of 5% or
more of the Company's outstanding capital stock, has pledged shares of the
Company's capital stock in connection with a margin account or other loan
secured by such capital stock; and (K) the Company and its Subsidiaries have no
liabilities or obligations required to be disclosed in the SEC Documents (as
defined herein) 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 on the Company and its Subsidiaries taken as a whole.
The Company has made available to each Buyer true and correct 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 By-laws, as
amended and as in effect on the date hereof (the "By-laws"), and the terms of
all securities convertible into or exercisable or exchangeable for Common Stock
and the material rights of the holders thereof in respect thereto except for
stock options granted under any benefit plan or stock option plan of the Company
approved by the Board of Directors of the Company.
d. Issuance of Securities. The Securities are
duly authorized and, upon issuance in accordance with the terms of the
applicable Transaction Documents, shall be (i) validly issued, fully paid and
non-assessable and (ii) free from all taxes, liens and charges with respect to
the issuance thereof (other than any such taxes, liens and charges created by
any Buyer or assignee or transferee), and shall not be subject to preemptive
rights or other similar rights of shareholders of the Company. As of the
Closing, at least 4,392,506 shares of Common Stock (subject to adjustment
pursuant to the Company's covenant set forth in Section 4(f) below) will have
been duly authorized and reserved for issuance upon conversion of the Debentures
and exercise of the Warrants. Upon conversion or issuance in accordance with the
Debentures or the Warrants, as applicable, the Conversion Shares and the Warrant
Shares, as the case may be, will be validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof (other than any such taxes, liens and charges created by any Buyer
or any assignee or transferee), with the holders being entitled to all rights
accorded to a holder of Common Stock. Based, in part, on reliance on the
representations and warranties of each of the
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Buyers in the Transaction Documents, the issuance by the Company of the
Securities is exempt from registration under the 1933 Act.
e. 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 reservation for issuance and issuance of the Conversion
Shares and the Warrant Shares) will not (i) result in a violation of the
Certificate of Incorporation or the By-laws; (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 material agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations as would not, individually or in the aggregate, to have a Material
Adverse Effect); or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations and the rules and regulations of the Principal Market (as defined
below)) 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. Neither the Company nor its Subsidiaries is in violation of any term
of or in default under its Certificate of Incorporation, By-laws or their
organizational charter or by-laws, respectively. Neither the Company nor any of
its Subsidiaries is in violation of any term of or in default under any
contract, agreement, mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any statute, rule or regulation applicable to the Company or
its Subsidiaries, except where such violations and defaults would not result,
either individually or in the aggregate, in a Material Adverse Effect. The
business of the Company and its Subsidiaries is not being 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. Except as specifically contemplated by this Agreement,
as required under the 1933 Act, as required by Blue Sky filings or as required
by the 19.99% Rule, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency or any regulatory or self-regulatory agency in order for it
to execute, deliver or perform any of its obligations under or contemplated by
the Transaction Documents. Except as disclosed in Schedule 3(e), all consents,
authorizations, orders, filings and registrations which the Company is required
to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the date hereof. The Company and its Subsidiaries are currently
unaware of any facts or circumstances which might give rise to any of the
foregoing events set forth in this paragraph. The Company is not in violation of
the listing requirements of the Principal Market, and has no actual knowledge of
any facts which would reasonably lead to delisting or suspension of the Common
Stock by the Principal Market in the foreseeable future.
f. SEC Documents; Financial Statements. Since
January 1, 2001, 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 Securities Exchange Act of 1934, as amended (the
"1934 Act") (all of the foregoing filed prior to or on the date hereof and all
exhibits included therein and financial statements and schedules thereto and
documents incorporated by reference therein being hereinafter referred to as the
"SEC Documents"). As of the date of filing of such SEC Documents, each such SEC
Document, as it may have been subsequently amended by filings made by the
Company with the SEC prior to the date hereof,
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complied in all material respects with the requirements of the 1934 Act and the
rules and regulations of the SEC promulgated thereunder applicable to such SEC
Document. None of the SEC Documents, as of the date filed and as they may have
been subsequently amended by filings made by the Company with the SEC prior to
the date hereof, 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 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 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 written 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), 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 circumstances under
which they are or were made, not misleading. Neither the Company nor any of its
Subsidiaries nor any of their officers, directors, employees or agents have
provided the Buyers with any material, nonpublic information. As of the date
hereof, the Company meets the requirements for use of Form S-3 for registration
of the resale of Registrable Securities (as defined in the Registration Rights
Agreement) and does not have any knowledge or reason to believe that it does not
meet such requirements or any actual knowledge of any fact which would
reasonably result in its not meeting such requirements. The Company is not
required to file and will not be required to file any agreement, note, lease,
mortgage, deed or other instrument entered into prior to the date hereof and to
which the Company is a party or by which the Company is bound which has not been
previously filed as an exhibit to its reports filed with the SEC under the 1934
Act. Except for the issuance of the Debentures and the Warrants contemplated by
this Agreement, no event, liability, development or circumstance has occurred or
exists, or is currently contemplated to occur, with respect to the Company or
its Subsidiaries or their respective business, properties, operations or
financial condition, that would be required to be disclosed by the Company under
applicable securities laws and which has not been publicly disclosed.
g. Absence of Certain Changes. Except as disclosed in
the SEC Documents available on the XXXXX system, since December 31, 2000, there
has been no change or development that has had or could reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect. The
Company has not taken any steps, and does not currently expect to take any
steps, to seek protection pursuant to any bankruptcy law nor does the Company or
any of its Subsidiaries have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy proceedings or any actual
knowledge of any fact which would reasonably lead a creditor to do so. Except as
disclosed in the SEC Documents available on the XXXXX system, since December 31,
2000, (i) the Company has not declared or paid any dividends, and (ii) as of the
date hereof, has not sold any assets, individually or in the
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aggregate, in excess of $5,000,000 outside of the ordinary course of business or
had capital expenditures, individually or in the aggregate, in excess of
$10,000,000.
h. Absence of Litigation. Except as disclosed in the
section titled "Legal Proceedings" in the Company's Quarterly Report on Form
10-Q for the period ended September 30, 2001, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the
knowledge of the Company or any of its Subsidiaries, threatened in writing
against the Company or any of the Company's Subsidiaries or any of the Company's
or the Company's Subsidiaries' officers or directors in their capacities as
such, that would reasonably be expected to result in a Material Adverse Effect.
i. No Integrated Offering. Neither the Company, nor any
of its affiliates, nor any person acting on its or 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 cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
the 1933 Act or 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, nor will the Company or any of its Subsidiaries take any action or
steps that would cause the offering of the Securities to be integrated with
other offerings.
j. Employment Matters; ERISA Matters. (i) Neither the
Company nor any of its Subsidiaries is involved in any material union labor
dispute nor, to the knowledge of the Company or any of its Subsidiaries, is any
such dispute threatened. None of the Company's or its Subsidiaries' U.S.
employees is a member of a union which relates to such employee's relationship
with the Company. Neither the Company nor any of its Subsidiaries is a party to
a collective bargaining agreement. No executive officer (as defined in Rule
501(f) of the 0000 Xxx) has notified the Company in writing that such officer
intends to leave the Company or otherwise terminate such officer's employment
with the Company.
(ii) The Company and its Subsidiaries are in
compliance with all federal, state, local and foreign laws and
regulations respecting employment and employment practices,
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.
k. Intellectual Property Rights. Except as
disclosed in the section titled "Legal Proceedings" in the Company's Quarterly
Report on Form 10-Q for the period ended September 30, 2001, the Company and its
Subsidiaries own or possess adequate rights or licenses to use (i) all
trademarks, trade names, trade dress, service marks, service xxxx registrations,
service names, patents, patent rights, copyrights, inventions, technology
licenses, approvals, governmental authorizations, trade secrets, and other
intellectual property rights (collectively, "Intellectual Property") necessary
to conduct their respective businesses as now conducted and as currently
contemplated to be conducted, except where the failure to own, possess or
protect such rights would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. Except as
disclosed in the section titled
-10-
"Proprietary Rights" in the Company's Current Report on Form 8-K filed with the
SEC on October 17, 2001, none of the Company's or its Subsidiaries' Intellectual
Property rights have expired or terminated, or are expected to expire or
terminate within two years from the date of this Agreement, except where such
expiration or termination would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. Except as would
not reasonably be expected to result in a Material Adverse Effect and except as
disclosed in the section titled "Legal Proceedings" in the Company's Quarterly
Report on Form 10-Q for the period ended September 30, 2001, the Company and its
Subsidiaries do not have any knowledge of any infringement by the Company or its
Subsidiaries of Intellectual Property rights of others, or of any development of
similar or identical trade secrets or technical information by others and except
as would not reasonably be expected to result in a Material Adverse Effect,
there is no claim, action or proceeding being made by or brought against, or to
the knowledge of the Company and except as disclosed in the section titled
"Legal Proceedings" in the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 2001, currently threatened in writing by or against,
the Company or its Subsidiaries regarding the Intellectual Property rights of or
the use of any Intellectual Property by the Company or its Subsidiaries or any
third party.
l. 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 taken as a whole, in each case free
and clear of all liens, encumbrances and defects except such as (i) constitute
purchase money security interests, (ii) are described in Schedule 3(l) or (iii)
such as do not materially affect the value of such property and do not
materially 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 facilities by the Company and its Subsidiaries.
m. Environmental Laws. The Company and its
Subsidiaries (A) are in compliance with any and all Environmental Laws, (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, and (C)
are in compliance with all terms and conditions of any such permit, license or
approval, except in each case where the failure of the Company and its
subsidiaries would not, either individually or in the aggregate, reasonably be
expected to result in 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 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.
-11-
n. 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.
o. Regulatory Permits. Except for Permits (as
defined below) the absence of which would not, either individually or in the
aggregate, result in a Material Adverse Effect, the Company and its Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses as currently conducted (the "Permits"), and neither the
Company nor any such Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any such Permit.
p. No Materially Adverse Contracts, Etc.
Neither the Company nor any of its Subsidiaries is subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation which in the judgment of the Company's officers has or is currently
expected in the future to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is a party to any contract or agreement which in the
judgment of the Company's officers has or is currently expected to have a
Material Adverse Effect.
q. Tax Status. Except as could reasonably
be expected to have a Material Adverse Effect, the Company and each of its
Subsidiaries (i) has made or filed all 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 due with respect to the periods covered by such returns, reports and
declarations, except those being contested in good faith and for which the
Company has made appropriate reserves on its books, and (iii) has paid or set
aside on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations (referred to in clause (i) above) apply. There are no unpaid taxes
that are individually or in the aggregate material in 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.
r. Transactions With Affiliates. Except as set
forth on Schedule 3(r) and in the SEC Documents, and other than the grant of
stock options described on Schedule 3(c), none of the officers, directors or
employees of the Company is presently a party to any transaction with the
Company or any of its Subsidiaries (other than in connection with the provision
of services as employees, officers and directors and payment of ordinary course
of business expenses for employees and other expenditures on behalf of employees
in an aggregate amount for all employees not in excess of $500,000), 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,
-12-
director or employee or, to the knowledge of the Company, 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.
s. Application of Takeover Protections. 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,
the laws of the state of its incorporation or the laws of any other state which
is or could become applicable to the Buyers as a result of the transactions
contemplated by this Agreement, including, without limitation, the Company's
issuance of the Securities and the Buyers' ownership of the Securities.
t. Foreign Corrupt Practices. Neither the
Company nor any of its Subsidiaries, nor any director, officer, agent, employee
or other person acting on behalf of the Company or any Subsidiary has, in the
course of his actions for, or on behalf of, the Company or any Subsidiary used
any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expenses relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment to any foreign or domestic
government official or employee.
4. COVENANTS.
a. Best Efforts. Each party shall use its
reasonable best efforts to timely 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 (to the extent such action is required by applicable law). 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. Other than pursuant to a
Change of Control (as defined in the Debentures), until the earlier of (i) the
date which is one year after the date as of which the Investors (as that term is
defined in the Registration Rights Agreement) may sell all of the Conversion
Shares and the Warrant Shares without restriction pursuant to Rule 144(k)
promulgated under the 1933 Act (or successor thereto) and (ii) the date on which
(A) the Investors shall have sold all the Conversion Shares and the Warrant
Shares and (B) none of the
-13-
Debentures or 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 otherwise permit such termination.
d. Use of Proceeds. The Company will use the
proceeds from the sale of the Debentures and the Warrants to repay outstanding
indebtedness of approximately $44.8 million, to repay amounts under put option
obligations outstanding on the date hereof, to fund working capital and for
general corporate purposes.
e. Financial Information. The Company agrees to
send the following to each Investor during the Reporting Period: (i) within ten
(10) days after the filing thereof with the SEC, a copy of its Annual Reports on
Form 10-K, its Quarterly Reports on Form 10-Q, any Current Reports on Form 8-K
and any registration statements (other than on Form S-8) or amendments thereto
filed pursuant to the 1933 Act, provided that if any such report is filed with
the SEC through XXXXX and is available to the Buyers via XXXXX then no such
deliveries shall be required; (ii) using its reasonable efforts, on the same day
as the release thereof, facsimile copies of all press releases issued by the
Company relating to the Company's quarterly operating results 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.
f. 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 105% of the number of shares of Common Stock
(the "Reservation Amount") needed to provide for the issuance of the Conversion
Shares upon conversion of all of the Debentures and the Warrant Shares upon
exercise of all of the Warrants (without regard to any limitations on
conversions or exercise).
g. 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 shares of Common Stock are then listed (subject to
official notice of issuance) and, shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all Registrable Securities from
time to time issuable under the terms of the Transaction Documents. So long as
any Securities are outstanding, the Company shall maintain the Common Stock's
authorization for quotation on listing on The New York Stock Exchange, Inc. (the
"NYSE"), the American Stock Exchange, Inc. ("AMEX") or The Nasdaq National
Market ("NASDAQ") (as applicable, the "Principal Market"). The Company shall pay
all fees and expenses in connection with satisfying its obligations under this
Section 4(g).
h. Filing of Form 8-K. On the Business Day
following the Closing Date, the Company shall file a Current Report on Form 8-K
with the SEC describing the terms of the transactions contemplated by the
Transaction Documents and including as exhibits to such Current Report on Form
8-K this Agreement, the form of Debenture, the form of Warrants and the
Registration Rights Agreement in the form required by the 0000 Xxx. "Business
Day" means
-14-
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.
i. Proxy Statement. If the Company, at any time
determines that in connection with the issuance of the Securities, Stockholder
Approval is required by the Principal Market in connection with the 19.99% Rule,
the Company shall provide each stockholder entitled to vote at the next meeting
of stockholders of the Company, which meeting shall occur on or before ninety
days from the date of such determination (the "Stockholder Meeting Deadline"), a
proxy statement, which has been previously reviewed by the Buyers and a counsel
of their choice, soliciting each such stockholder's affirmative vote at such
stockholder meeting for approval of the Company's issuance of all of the
Securities as described in the Transaction Documents in accordance with
applicable law and the rules and regulations of the Principal Market (such
affirmative approval being referred to herein as the "Stockholder Approval"),
and the Company shall use its best efforts to solicit its stockholders' approval
of such issuance of the Securities and to cause the Board of Directors of the
Company to recommend to the stockholders that they approve such proposal. If the
Company fails to obtain the Stockholder Approval by the Stockholder Meeting
Deadline, then, as partial relief (which remedy shall not be exclusive of any
other remedies available at law or in equity), each holder of Debentures shall
notify the Company by facsimile within three (3) Business Days of the
Stockholder Meeting Deadline (a "Delisting Notice" ) as to whether such holder
is requiring the Company to delist the Common Stock from the Principal Market.
If so directed in one or more Delisting Notices by the holders of 60% of the
Outstanding Principal Amount of all Debentures then outstanding, the Company
shall, as promptly as practicable, but in no event more than five (5) Business
Days after the Company's first receipt of a Delisting Notice, delist the Common
Stock from the Principal Market so that the 19.99% Rule no longer applies and is
of no force and effect after such fifth Business Day and have the Common Stock,
at such holders' option, traded on the electronic bulletin board or the "pink
sheets."
j. Pledge of Securities. The Company
acknowledges and agrees that the Securities may be pledged in compliance with
applicable securities laws by an Investor in connection with a bona fide margin
agreement or other loan 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) of this Agreement; provided that in
order to make any sale, transfer or assignment of Securities, such Investor and
its pledgee makes such disposition in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act. The Company hereby
agrees to execute and deliver such reasonable documentation as a pledgee of the
Securities may reasonably request in connection with a pledge of the Securities
to such pledgee by an Investor.
k. Expenses. Subject to Section 9(l) below, at
the Closing, the Company shall reimburse the Buyers for the Buyers' reasonable,
documented out-of-pocket expenses incurred in connection with the consummation
of the transactions contemplated by this Agreement, up to a maximum of $50,000,
which amount shall be withheld by the Buyers from its Purchase Price to be paid
at the Closing.
-15-
l. Good Standing. At the Closing, the Company
shall deliver a good standing certificate to each of the Buyers, certifying the
Company's qualification to do business and its good standing in the State of
Delaware and the Commonwealth of Massachusetts as certified by the Secretary of
State of the State of Delaware and the Secretary of State of the Commonwealth of
Massachusetts, respectively.
m. Additional Debentures. For so long as any
Buyer beneficially owns any Securities, the Company will not issue any
Debentures other than to the Buyers as contemplated hereby and the Company shall
not issue any other securities that would cause a breach or default under the
Debentures; provided, however, that the Company may issue up to an additional
$25 million principal amount of additional Debentures ("Additional Debentures")
within five (5) Business Days after the Closing Date on terms and conditions
which are no more favorable, either individually or in the aggregate, than the
terms and conditions set forth in the Transaction Documents and provided further
that (X) the market price for the Common Stock is less than the Conversion Price
and (Y) to no more than three (3) additional investors who are approved by the
initial Buyers, such approval not to be unreasonably withheld. The parties
hereto agree to amend the Transaction Documents as is reasonably necessary to
provide solely for the issuance of the Additional Debentures.
n. Tax Matters. For United States Federal
income tax purposes, the Company and each Buyer agree (i) to treat the
Debentures as indebtedness, (ii) that $2,046,198.75 of the aggregate purchase
price for the securities issued by the Company to the Buyers hereunder is
attributable to the purchase of the Warrants, and (iii) to treat the Debentures
as having been issued for an aggregate purchase price of $47,953,801.25, such
that the aggregate original issue discount that will accrue over the term of the
Debentures is $2,046,198.75. If the Company shall be required to withhold or
deduct any tax or other governmental charge from any payment made hereunder or
under any Debenture to any Buyer, then, subject to the last sentence of this
Section 4(n), the Company will pay to such Buyer such additional amounts as are
necessary such that such Buyer actually receives the amount such Buyer would
have received if no such withholding or deduction had been required. If any
Buyer is organized under the laws of a jurisdiction other than the United
States, any State thereof or the District of Columbia (a "Non-U.S. Buyer"), it
shall deliver to the Company either (a) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or (b) in the case of a Non-U.S.
Buyer claiming exemption from U.S. Federal withholding tax under Section 871(h)
or 881(c) of the Internal Revenue Code of 1986, as amended (the "Code") with
respect to payments of "portfolio interest", a certificate in form and substance
reasonably acceptable to the Company representing that such Non-U.S. Buyer is
not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code), together with Internal
Revenue Service Form W-8 or W-9, as applicable, in all cases such forms and
other documents being properly completed and duly executed by such Non-U.S.
Buyer claiming complete exemption from U.S. Federal withholding tax on payments
of interest by the Company (or accruals of original issue discount) under the
Debentures. In addition, each Buyer that is not otherwise exempt from "back-up
withholding" shall deliver to the Company properly completed and duly executed
Internal Revenue Service Form W-8 or W-9 indicating that such Buyer is not
subject to "back-up withholding" for U.S. Federal income tax purposes. The forms
and other documents required to be delivered pursuant to the two preceding
sentences
-16-
shall be delivered within 10 days after the Closing Date. The Company shall not
be required to pay any additional amounts (x) to any Non-U.S. Buyer in respect
of United States Federal withholding tax or (y) to any Buyer in respect of U.S.
Federal "back-up withholding" tax to the extent that the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Buyer or Buyer, as the case may be, to comply with the provisions of this
Section 4(n).
o. 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.
p. 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 can not
be less than the then applicable Conversion Price (as defined in the Debentures)
under any Debenture.
5. TRANSFER AGENT INSTRUCTIONS.
The Company shall issue irrevocable instructions to its
transfer agents, and any subsequent transfer agent, to issue certificates or
credit shares to the applicable balance accounts at DTC, registered in the name
of each Buyer or its respective nominee(s), for the Conversion Shares and
Warrant Shares in such amounts as specified from time to time by each Buyer to
the Company upon conversion of the Debentures or exercise of the Warrants, as
applicable and in accordance with their respective terms (the "Irrevocable
Transfer Agent Instructions"), a form of which is attached as Exhibit D hereto.
Prior to transfer or sale pursuant to a registration statement or Rule 144 under
the 1933 Act of the Conversion Shares and the Warrant Shares, all such
certificates shall bear the restrictive legend specified in Section 2(g) of this
Agreement. The Company warrants that no instruction inconsistent with the
Irrevocable Transfer Agent Instructions referred to in this Section 5 and stop
transfer instructions to give effect to Section 2(f) hereof (in the case of the
Conversion Shares and the Warrant Shares, prior to registration of the
Conversion Shares and the Warrant Shares under the 0000 Xxx) 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, the Debentures, the Warrants and the Registration
Rights Agreement. If a Buyer provides the Company with an opinion of counsel, in
generally acceptable form, to the effect that a public sale, assignment or
transfer of Securities may be made without registration under the 1933 Act or
that the Securities can be sold pursuant to Rule 144 without any restriction as
to the number of securities acquired as of a particular date that can then be
immediately sold, the Company shall permit the transfer, and, in the case of the
Conversion Shares and the Warrant Shares, promptly instruct its transfer agent
to issue one or more certificates, or credit shares to one or more balance
accounts at DTC, in such name and in such denominations as specified by such
Buyer and without any restrictive legend. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Buyers by
vitiating the intent and purpose of the
-17-
transaction contemplated hereby. 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 the Buyers 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.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company to issue and sell the Debentures
and the Warrants 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 shall have delivered to the Company
the purchase price (less any amounts withheld pursuant to
Section 4(k)) for the Debentures and the Warrants being
purchased by such Buyer at the Closing, by wire transfer of
immediately available funds pursuant to the wire instructions
provided by the Company.
(iii) The representations and warranties of such
Buyer shall be true and correct in all material respects
(except to the extent that any of such representations and
warranties is already qualified as to materiality in Section 2
above, in which case such representations and warranties shall
be true and correct without further qualification) 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 date)), and such Buyer shall have performed,
satisfied and complied with in all material respects the
covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied
with by such Buyer at or prior to the Closing Date.
7. CONDITIONS TO EACH BUYER'S OBLIGATION TO PURCHASE.
The obligation of each Buyer hereunder to purchase the
Debentures and the Warrants from the Company 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 executed each of
the Transaction Documents and delivered the same to such Buyer.
(ii) The Common Stock (x) shall be
designated for quotation or listed on the Principal Market and (y)
shall not have been suspended by the SEC or the Principal Market from
trading on the Principal Market nor shall suspension by the SEC or
-18-
the Principal Market have been threatened 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; and the Conversion
Shares issuable upon conversion of the Debentures (without regard to
any limitations on conversions) and the Warrant Shares issuable upon
exercise of the Warrants (without regard to any limitations on
exercises) upon the Principal Market.
(iii) The representations and warranties of
the Company shall be true and correct in all material respects (except
to the extent that any of such representations and warranties is
already qualified as to materiality in Section 3 above, in which case
such representations and warranties shall be true and correct without
further qualification) 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 date)) and the Company shall have performed,
satisfied and complied with in all material respects 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.
(iv) The Company shall have delivered to
such Buyer the opinion of Xxxx and Xxxx LLP, dated as of the Closing
Date, in the form of Exhibit E, attached hereto.
(v) The Company shall have executed and
delivered to such Buyer the Debentures and the Warrants (in such
denominations as such Buyer shall reasonably request) for the
Debentures and the Warrants being purchased by such Buyer at the
Closing.
(vi) As of the Closing Date, the Company
shall have reserved out of its authorized and unissued Common Stock,
solely for the purpose of effecting the conversion of the Debentures
and the exercise of the Warrants 4,392,506 shares of its Common Stock.
(vii) The Company shall have delivered the
Irrevocable Transfer Agent Instructions, in the form of Exhibit D
attached hereto, to the Company's transfer agent.
(viii) The Company shall have delivered to
such Buyer a certificate evidencing the incorporation and good standing
of the Company in Delaware issued by the Secretary of State of Delaware
as of a date within ten (10) days of the Closing Date.
(ix) 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 as of a
date within ten (10) days of the Closing Date.
-19-
(x) The Company shall have delivered to such
Buyer a secretary's certificate, dated as of the Closing Date,
certifying as to (A) adoption of the form of resolutions of the Board
of Directors of the Company consistent with Section 3(b) above and in a
form reasonably acceptable to such Buyer, (B) the Certificate of
Incorporation and (C) the By-laws, each as in effect at the Closing.
(xi) The Company shall have made all filings
under all applicable federal and state securities laws necessary to
consummate the issuance of the Securities pursuant to this Agreement in
compliance with such laws.
8. 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, (b) any breach of any covenant, agreement
or obligation of the Company contained in the Transaction Documents, (c) any
cause of action, suit or claim brought or made against such Indemnitee (other
than a cause of action, suit or claim which is (x) brought or made by the
Company and (y) is not a shareholder derivative suit) 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 or (iii) the status of such Buyer or holder of the Securities
as an investor in the Company. 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 which 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 8 shall be the same as those set forth in
Sections 6(a) and (d) of the Registration Rights Agreement, including, without
limitation, those procedures with respect to the settlement of claims and the
Company's rights to assume the defense of claims.
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 jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
New York. Each
-20-
party hereby irrevocably submits to the non-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 HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
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
supersedes all other prior oral or written agreements between each Buyer, the
Company, their affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein and, except as specifically set forth herein
or therein, neither the Company nor any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be amended or waived other than by an instrument in writing
signed by the Company and the holders of at least 60% of the outstanding
principal amount of the Debentures or Conversion Shares, as applicable. No such
amendment shall be effective to the extent that it applies to less than all of
the holders of the Debentures 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 or holders of
the Conversion Shares, as the case may be.
-21-
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 (1) Business Day
after deposit with a nationally recognized overnight delivery 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 the Company:
RSA Security Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
With copies to:
RSA Security Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
and
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx, Esq.
If to the Transfer Agent:
EquiServe LLP
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
If to a Buyer, to it at the 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, or at 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
-22-
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service shall be rebuttal evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery 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 Securities. The Company
shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the holders of at least 60% of the outstanding
principal amount of the Debentures including by merger or consolidation, except
pursuant to a Change of Control (as defined in the Debentures) with respect to
which the Company is in compliance with the terms of the Debentures and Section
4(i) of this Agreement. A Buyer may assign some or all of its rights and
obligations hereunder without the consent of the Company; provided, however,
that the transferee has agreed in writing to be bound by the applicable
provisions of this Agreement and provided, further, that such assignment shall
be in connection with a transfer of all or a portion of the Debentures and
Warrants held by such Buyer and subject to the terms and conditions of the
Warrants and Debentures, as applicable. Any Buyer shall be entitled to pledge
the Securities in connection with a bona fide margin account or other loan
secured by the Securities and 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) of this Agreement; provided that in order to make any sale,
transfer or assignment of Securities, such Investor and its pledgee makes such
disposition in accordance with or pursuant to a registration statement or an
exemption under the 1933 Act.
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 9(l), the representations and warranties of the Company and the
Buyers contained in Sections 2 and 3, the agreements and covenants set forth in
Sections 4, 5 and 9, and the indemnification provisions set forth in Section 8,
shall survive until such time as no Debentures remain outstanding. Each Buyer
shall be responsible only for its own representations, warranties, agreements
and covenants hereunder.
j. Publicity. The Company and each Buyer shall have
the right to approve before issuance 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 (i) make a press release, substantially in the form attached hereto as
Exhibit G, after the Closing, (ii) make any press release or other public
disclosure of information that previously has been publicly disclosed (other
than pursuant to a breach of this paragraph), and (iii) make any press release
or other public disclosure with respect to such transactions in the form as is
required by applicable law and regulations (although each Buyer shall be
consulted by the Company in connection with any press release or other public
-23-
disclosure referenced in subclause (iii) hereof prior to its release and shall
be provided with a copy thereof).
k. Further Assurances. Each party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
l. 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 9(l), the Company shall remain obligated to reimburse any
nonbreaching Buyer for the expenses described in Section 4(k) above.
m. Placement Agent. The Company acknowledges that it
has engaged Credit Suisse First Boston Corporation as placement agent in
connection with the sale of the Debentures and the Warrants and that the
compensation of such agent is as set forth on Schedule 9(m) hereto. 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 shall pay, and hold each Buyer harmless
against, any liability, loss or expense (including, without limitation,
attorney's fees and out-of-pocket expenses) arising in connection with any such
claim.
n. 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.
o. 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 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 this Agreement, 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.
p. Payment Set Aside. To the extent that the Company
makes a payment or payments to any Buyer hereunder or pursuant to any of the
other Transaction
-24-
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, 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.
[signature page follows]
-25-
IN WITNESS WHEREOF, the Buyers and the Company have caused this
Securities Purchase Agreement to be duly executed as of the date first written
above.
COMPANY:
RSA SECURITY INC.
/s/ Xxxx X. Xxxxxxx
By: __________________________
Name: Xxxx X. Xxxxxxx
Title: CFO
[Signatures of Buyers on Following Page]
-26-
[SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
BUYERS:
PORTSIDE GROWTH AND OPPORTUNITY FUND
/s/ Xxxxxxx X. Xxxxxxx
By: _______________________________
Xxxxxxx X. Xxxxxxx
Name: _____________________________
Managing Officer of XX
Xxxxx Partners, LLC
Title: _____________________________
XXXXXXXX, L.P.
/s/ Xxxxxxx X. Xxxxxxx
By: _______________________________
Xxxxxxx X. Xxxxxxx
Name: _____________________________
Managing Officer of XX
Xxxxx Partners, LLC
Title: _____________________________
RCG LATITUDE MASTERFUND, LTD.
/s/ Xxxxxxx X. Xxxxxxx
By: _______________________________
Xxxxxxx X. Xxxxxxx
Name: _____________________________
Managing Officer of XX
Xxxxx Partners, LLC
Title: _____________________________
-27-
SCHEDULE OF BUYERS
Investor's Name, Representative, Principal Amount
Address for Notices of
and Facsimile Number Debentures Number of Warrants
-------------------- ---------- ------------------
Portside Growth and Opportunity Fund $15,750,000 171,881
Xxxxxxxx, L.P. $32,500,000 354,674
RCG Latitude Masterfund, Ltd $ 1,750,000 19,098
Total $50,000,000 545,653
=========== =======
All Notices to Each Investor to be sent to:
c/o AG Ramius Partners, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
(000) 000-0000
with a copy to:
c/o AG Ramius Partners, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Xxxx Xxxx
(000) 000-0000
TABLE OF CONTENTS
Page
----
1. PURCHASE AND SALE OF DEBENTURES AND WARRANTS........................................................... 1
2. BUYER'S REPRESENTATIONS AND WARRANTIES................................................................. 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................................... 5
4. COVENANTS.............................................................................................. 13
5. TRANSFER AGENT INSTRUCTIONS............................................................................ 17
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL......................................................... 18
7. CONDITIONS TO EACH BUYER'S OBLIGATION TO PURCHASE...................................................... 18
8. INDEMNIFICATION........................................................................................ 19
9. MISCELLANEOUS.......................................................................................... 19
SCHEDULES
Schedule 3(a) - Subsidiaries
Schedule 3(c) - Capitalization
Schedule 3(e) - Conflicts
Schedule 3(h) - Litigation
Schedule 3(k) - Intellectual Property
Schedule 3(l) - Liens
Schedule 3(r) - Transactions with Affiliates
Schedule 3(t) - Rights Agreement
Schedule 9(m) - Placement Agent Compensation
EXHIBITS
Exhibit A - Form of Debentures
Exhibit B - Form of Warrant
Exhibit C - Form of Registration Rights Agreement
Exhibit E - Form of Irrevocable Transfer Agent Instructions
Exhibit F - Form of Company Counsel Opinion
Exhibit G - Form of Press Release
Exhibit H - Form of Opinion of Counsel for Transfers
-i-
INDEX
Page
19.99% Rule...................................................................................................... 6
1933 Act......................................................................................................... 1
1934 Act......................................................................................................... 8
accredited investor.............................................................................................. 2
Agreement........................................................................................................ 1
Business Day..................................................................................................... 14
Buyer............................................................................................................ 1
Buyers........................................................................................................... 1
By-laws.......................................................................................................... 7
Certificate of Incorporation..................................................................................... 7
Closing.......................................................................................................... 1
Closing Date..................................................................................................... 2
Common Stock..................................................................................................... 1
Company.......................................................................................................... 1
Conversion Shares................................................................................................ 1
Debentures....................................................................................................... 1
Delisting Notice................................................................................................. 15
Environmental Laws............................................................................................... 11
Indemnified Liabilities.......................................................................................... 20
Indemnitees...................................................................................................... 20
Irrevocable Transfer Agent Instructions.......................................................................... 17
Material Adverse Effect.......................................................................................... 5
Permits.......................................................................................................... 12
pink sheets...................................................................................................... 15
Principal Market................................................................................................. 14
Registration Rights Agreement.................................................................................... 1
Regulation D..................................................................................................... 1
Reporting Period................................................................................................. 14
Reservation Amount............................................................................................... 14
Rule 144......................................................................................................... 3
SEC.............................................................................................................. 1
SEC Documents.................................................................................................... 8
Securities....................................................................................................... 2
Stockholder Approval............................................................................................. 15
Stockholder Meeting Deadline..................................................................................... 15
Subsidiaries..................................................................................................... 5
Transaction Documents............................................................................................ 6
Warrant Shares................................................................................................... 1
Warrants......................................................................................................... 1
-i-
