SECURITIES PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”)
is
dated as of April 30, 2008 among OmniReliant Holdings, Inc., a Nevada
corporation (the “Company”),
and
Vicis Capital Master Fund, a sub-trust of Vicis Capital Series Master Trust,
a
unit trust organized and existing under the laws of the Cayman Islands (the
“Purchaser”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant
to
Section 4(2) of the Securities Act of 1933, as amended (the “Securities
Act”)
and
Rule 506 promulgated thereunder, the Company desires to issue and sell to
Purchaser, and Purchaser desires to purchase from the Company, securities of
the
Company as more fully described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and Purchaser agree as
follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement: (a) capitalized
terms
that are not otherwise defined herein have the meanings given to such terms
in
the Series D Designations (as defined herein), and (b) the following terms
have
the meanings indicated in this Section
1.1:
“Affiliate”
means
any Person that, directly or indirectly through one (1) or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144 under the Securities
Act.
With
respect to a Purchaser, any investment fund or managed account that is managed
on a discretionary basis by the same investment manager as such Purchaser will
be deemed to be an Affiliate of such Purchaser.
“Amended
Registration Rights Agreement”
means
the Amended and Restated Registration Rights Agreement, dated as of October
18,
2007, as amended by the First Amendment to the Amended and Restated Registration
Rights Agreement, dated the date hereof.
“Business
Day”
means
any day except Saturday, Sunday, any day which shall be a federal legal holiday
in the United States or any day on which banking institutions in the State
of
New York are authorized or required by law or other governmental action to
close.
“Closing”
means
the closing of the purchase and sale of the Securities pursuant to Section
2.1.
“Closing
Date”
means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to
(i)
the Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Securities have been satisfied or
waived.
“Commission”
means
the U.S. Securities and Exchange Commission.
“Common
Stock”
means
the common stock of the Company, par value $.00001 per share, and any other
class of securities into which such securities may hereafter be reclassified
or
changed into.
“Common
Stock Equivalents”
means
any securities of the Company or the Subsidiaries which would entitle the holder
thereof to acquire at any time Common Stock, including, without limitation,
any
debt, preferred stock, rights, options, warrants or other instrument that is
at
any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock.
“Disclosure
Schedules”
shall
have the meaning ascribed to such term in Section 3.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Exempt
Issuance”
means:
(a) shares of Common Stock or options to purchase Common Stock issued to
employees, officers, directors or consultants of the Company pursuant to any
stock or option plan duly adopted by a majority of the non-employee members
of
the Board of Directors of the Company or a majority of the members of a
committee of non-employee directors established for such purpose, (b) securities
issued upon the exercise or exchange of or conversion of any Securities issued
hereunder and/or other securities (including the stock rights set forth on
Schedule
3.1(g))
exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that, unless
set
forth on Schedule
3.1(g),
such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise, exchange or
conversion price of any such securities, (c) shares of Common Stock issued
or
deemed issued as a dividend or distribution on the Series C Convertible
Preferred Stock or the Series D Convertible Preferred Stock, (d) securities
issued pursuant to acquisitions or strategic transactions approved by a majority
of the directors, provided that any such issuance shall only be to a Person
which is, itself or through its subsidiaries, an operating company in a business
synergistic with the business of the Company, as determined by a majority of
the
directors, and in which the Company receives benefits in addition to the
investment of funds, but shall not include a transaction in which the Company
is
issuing securities primarily for the purpose of raising capital or to an entity
whose primary business is investing in securities, and (e) securities sold
in
connection with a
firm
commitment underwritten public offering of shares of Common Stock that is
intended, pursuant to the Company’s Board of Directors resolution, to produce
minimum proceeds (after payment of underwriter’s fees and commissions) of not
less than $30,000,000.
“First
Amendment to the Amended and Restated Registration Rights
Agreement”
means
the First Amendment to the Amended and Restated Registration Rights Agreement,
dated the date hereof, among the Company and the Purchaser, in the form of
Exhibit
A
attached
hereto.
“Liens”
means
a
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction.
“Material
Adverse Effect”
shall
have the meaning assigned to such term in Section 3.1(b).
“Person”
means
an individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Registration
Statement”
means
a
registration statement meeting the requirements set forth in the Amended
Registration Rights Agreement, and covering the resale of the Underlying Shares
by Purchaser as provided for in the Amended Registration Rights
Agreement.
“Required
Approvals”
shall
have the meaning ascribed to such term in Section 3.1(e).
“Required
Minimum”
means,
as of any date, 110% of the maximum aggregate number of shares of Common Stock
then issued or potentially issuable in the future pursuant to the Transaction
Documents, including any Underlying Shares issuable upon exercise or conversion
in full of all Warrants and Series D Convertible Preferred Stock (including
a
reasonable reserve for Underlying Shares issuable as payment of dividends),
ignoring any conversion or exercise limits set forth therein.
“ResponzeTV
Warrant” shall have the meaning ascribed to such term in Section
2.2(iv).
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities”
means
the Series D Convertible Preferred Stock, the Warrants, the Warrant Shares
and
the Underlying Shares.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated hereunder.
“Series
D Conversion Price”
shall
have the meaning ascribed to such term in the Series D
Designations.
“Series
D Convertible Preferred Stock”
means
the Series D Convertible Preferred Stock of the Company and such designations,
preferences and limitations as are set forth in the Series D
Designations.
“Series
D Designations”
means
the Certificate of Designation, Preferences and Rights of Series D Convertible
Preferred Stock filed with the State of Nevada on April ___, 2008.
“Series
BD Warrant”
means
the Series BD Common Stock Purchase Warrant, in the form of Exhibit
B
attached
hereto, delivered to the Purchasers at the Closing in accordance with
Section
2.2(a)(vi)
hereof.
“Series
D Warrant”
means
the Series D Common Stock Purchase Warrant, in the form of Exhibit
C
attached
hereto, delivered to the Purchasers at the Closing in accordance with
Section
2.2(a)(iii)
hereof,
which Warrants shall be exercisable immediately and have a term of exercise
equal to seven (7) years.
“Shareholder
Approval”
shall
have the meaning ascribed to such term in Section 4.13.
“Short
Sales”
shall
include all “short sales” as defined in Rule 200 of Regulation SHO under the
Exchange Act (but shall not be deemed to include the location and/or reservation
of borrowable shares of Common Stock).
“Subsidiary”
means
any subsidiary of the Company as set forth on Schedule
3.1(a).
“Trading
Day”
means
a
day on which the Common Stock is traded on a Trading Market.
“Trading
Market”
means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the Nasdaq Capital Market, the American
Stock Exchange, the New York Stock Exchange, the Nasdaq National Market, the
OTC
Bulletin Board, or “Pink Sheets” published by Pink Sheets, LLC (or a similar
organization or agency succeeding to its functions of reporting
prices).
“Transaction
Documents”
means
this Agreement, the Series D Designations, the Warrants, the First Amendment
to
the Amended and Restated Registration Rights Agreement, and any other documents
or agreements executed in connection with the transactions contemplated
hereunder.
“Underlying
Shares”
means
the shares of Common Stock issued and issuable upon conversion or redemption
of
the Series D Convertible Preferred Stock and upon exercise of the Warrants
and
issued and issuable in lieu of the cash payment of dividends on the Series
D
Convertible Preferred Stock in accordance with the terms of the Series D
Convertible Preferred Stock.
“Unreserved
Warrant Shares”
shall
have the meaning ascribed to such term in Section 4.13.
“VWAP”
of
a
share of Common Stock as of a particular date (the “Determination Date”) shall
mean the price determined by the first of the following clauses that applies:
(a) if shares of Common Stock are traded on a national securities exchange
(an
“Exchange”), the weighted average of the closing sale price of a share of the
Common Stock of the Company on the last five (5) Trading Days prior to the
Determination Date reported on such Exchange as reported in The Wall Street
Journal (weighted with respect to the trading volume with respect to each such
day); (b) if shares of Common Stock are not traded on an Exchange but trade
in
the over-the-counter market and such shares are quoted on the National
Association of Securities Dealers Automated Quotations System (“NASDAQ”), the
weighted average of the closing sale price of a share of the Common Stock of
the
Company on the last five (5) Trading Days prior to the Determination Date
reported on NASDAQ as reported in The Wall Street Journal (weighted with respect
to the trading volume with respect to each such day); (c) if such shares are
an
issue for which last sale prices are not reported on NASDAQ, the average of
the
closing sale price, in each case on the last five (5) Trading Days (or if the
relevant price or quotation did not exist on any of such days, the relevant
price or quotation on the next preceding Business Day on which there was such
a
price or quotation) prior to the Determination Date as reported by the Over
the
Counter Bulletin Board (the “OTCBB”), or any other successor organization; (d)
if no closing sales price is reported for the Common Stock by the OTCBB or
any
other successor organization for such day, the average of the closing sale
price, in each case on the last five (5) Trading Days (or if the relevant price
or quotation did not exist on any of such days, the relevant price or quotation
on the next preceding business day on which there was such a price or quotation)
prior to the Determination Date as reported by the "pink sheets" by the Pink
Sheets, LLC, or any successor organization, (e) if no closing sales price is
reported for the Common Stock by the OTCBB or any other successor organization
for such day, then the average of the high and low bid and asked price of any
of
the market makers for the Common Stock as reported on the OTCBB or in the "pink
sheets" by the Pink Sheets, LLC on the last five (5) Trading Days; or (e) in
all
other cases, the fair market value of a share of Common Stock as determined
by
an independent appraiser selected in good faith by the holder and reasonably
acceptable to the Company.
“Warrants”
means
the Series D Warrants and the Series BD Warrants.
“Warrant
Shares”
means
the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II
PURCHASE
AND SALE; SHARE EXCHANGE
2.1 Closing.
On the
Closing Date, upon the terms and subject to the conditions set forth herein,
concurrent with the execution and delivery of this Agreement by the parties
hereto. The Purchaser agrees to purchase, and the Company agrees (a) to sell,
Series D Convertible Preferred Stock having a Stated Value of $1.00, along
with
the Series D Warrants (as referred to in Section
2.2(a)(iii)
below),
and (b) to sell the ResponseTV Common Stock Purchase Warrants (as referred
to in
Section
2.2(a)(iv)
below),
for an aggregate purchase price of $7,000,000 (the “Purchase
Price”).
The
Purchaser shall deliver via wire transfer or a certified check immediately
available funds equal to the Purchase Price and the Company shall deliver to
the
Purchaser the Series D Convertible Preferred Stock and the Series D Warrants
and
the other items set forth in Section
2.2
issuable
at the Closing. Upon satisfaction of the conditions set forth in Sections
2.2
and
2.3,
the
Closing shall occur at the offices of the Purchaser’s counsel, Xxxx Xxxx, P.A.,
0000 Xxxxx Xxxxxxxx Xxxxxx., Xxxxx, Xxxxxxx 00000, or such other location as
the
parties shall mutually agree.
2.2 Deliveries.
(a) On
the
Closing Date, the Company shall deliver or cause to be delivered to the
Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
certificate evidencing 7,000,000 shares of Series D Convertible Preferred
Stock;
(iii) a
Series
D Warrant, in the name of the Purchaser, to purchase 28,000,000 shares of Common
Stock, with an exercise price equal to Seventy Five Cents ($0.75), subject
to
adjustment therein, with a term of exercise of seven (7) years;
(iv) the
issued and outstanding Common Stock Purchase Warrant exercisable for 8,500,000
shares of common stock of ResponseTV, having an exercise price of .37p, and
in
the form of Exhibit
C
attached
hereto (the “ResponseTV
Warrant”);
(v) the
First
Amendment to the Amended and Restated Registration Rights Agreement duly
executed by the Company; and
(vi) Series
BD
Warrants, in the name of the Midtown Partners & Co, LLC, to [A] purchase
700,000 shares of Common Stock, with an exercise price equal to Fifty Cents
($0.50), subject to adjustment therein, with a term of exercise of five (5)
years, and [B] purchase 1,400,000 shares of Common Stock, with an exercise
price
equal to Seventy Five Cents ($0.75), subject to adjustment therein, with a
term
of exercise of five (5) years.
(b) On
the
Closing Date, the Purchaser shall deliver or cause to be delivered to the
Company the following:
(i) this
Agreement duly executed by such Purchaser;
(ii) the
Purchase Price by wire transfer to the account as specified in writing by the
Company;
(iii) the
First
Amendment to the Amended and Restated Registration Rights Agreement duly
executed by such Purchaser.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:
(i) the
accuracy in all material respects when made and on the Closing Date of the
representations and warranties of the Purchaser contained herein;
(ii) all
obligations, covenants and agreements of the Purchaser required to be performed
at or prior to the Closing Date shall have been performed; and
(iii) the
delivery by the Purchaser of the items set forth in Section
2.2(b)
of this
Agreement.
(b) The
obligations of the Purchaser hereunder in connection with the Closing are
subject to the following conditions being met:
(i) the
accuracy in all material respects on the Closing Date of the representations
and
warranties of the Company contained herein;
(ii) all
obligations, covenants and agreements of the Company required to be performed
at
or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section
2.2(a)
of this
Agreement; and
(iv) there
shall have been no Material Adverse Effect with respect to the Company since
the
date of the Balance Sheet.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
Except
as set forth under the corresponding section of the disclosure schedules
delivered to the Purchasers concurrently herewith (the “Disclosure
Schedules”)
which
Disclosure Schedules shall be deemed a part hereof and to qualify any
representation or warranty otherwise made herein to the extent of such
disclosure, the Company hereby makes the representations and warranties set
forth below to Purchaser.
(a) Subsidiaries.
All of
the direct and indirect subsidiaries of the Company are set forth on
Schedule
3.1(a).
The
Company owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any Liens, and all the issued
and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. If the Company has no Subsidiaries, then
all other references in the Transaction Documents to the Subsidiaries or any
of
them will be disregarded.
(b) Organization
and Qualification.
The
Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization (as applicable), with the
requisite corporate power and authority to own and use its properties and assets
and to carry on its business as currently conducted. Neither the Company nor
any
Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. The Company and each of the Subsidiaries is duly qualified
to
conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected to result in (i) a material adverse effect on
the
legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii), a
“Material
Adverse Effect”)
and no
Proceeding has been instituted in any such jurisdiction revoking, limiting
or
curtailing or seeking to revoke, limit or curtail such corporate power and
authority or qualification.
(c) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and to
consummate the transactions contemplated by each of the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. Subject
to
Shareholder Approval and except as set forth on Schedule 3.1(c), the execution
and delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby have
been
duly authorized by all necessary corporate action on the part of the Company
and
no further action is required by the Company, its board of directors or its
stockholders in connection therewith other than in connection with the Required
Approvals. Each Transaction Document has been (or upon delivery will have been)
duly executed by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms except
(i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts.
Subject
to Shareholder Approval and except as set forth on Schedule 3.1(d), the
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the other transactions contemplated
hereby and thereby do not and will not: (i) conflict with or violate any
provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or
(ii)conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, result in the creation
of
any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary
is
bound or affected, or (iii) subject to the Required Approvals, conflict with
or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which
the
Company or a Subsidiary is subject (including federal and state securities
laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii)
and
(iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.
(e) Filings,
Consents and Approvals.
Subject
to Shareholder Approval and except as set forth on Schedule 3.1(e), the Company
is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) the filing with the Commission of the
Registration Statement, (ii) the notice and/or application(s) to each applicable
Trading Market for the issuance and sale of the Securities and the listing
of
the Underlying Shares for trading thereon in the time and manner required
thereby, and (iii) the filing of Form D with the Commission and such filings
as
are required to be made under applicable state securities laws (collectively,
the “Required
Approvals”).
(f) Issuance
of the Securities.
Subject
to Shareholder Approval, the Securities are duly authorized and, when issued
and
paid for in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided for in
the
Transaction Documents. Subject to Shareholder Approval, the Underlying Shares,
when issued in accordance with the terms of the Transaction Documents, will
be
validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company. Subject to Shareholder Approval, the Company has
reserved from its duly authorized capital stock a number of shares of Common
Stock for issuance of the Underlying Shares at least equal to the Required
Minimum on the date hereof.
(g) Capitalization.
Immediately before the Closing, and immediately before any anti-dilution
adjustment arising from the issuance of the Series D Convertible Preferred
Stock
to the Purchaser on the Closing Date, the authorized capital stock of the
Company consists of: (i) 100,000,000 shares of Common Stock, of which (A)
[14,063,112] shares are issued and outstanding, (B) no shares of Common Stock
are held in treasury, (C) [13,746,085] shares are reserved for issuance upon
conversion of the Series C Convertible Preferred Stock, and (D) [32,300,171]
shares are reserved for issuance upon the conversion, exchange, or exercise
of
the warrants and options identified on Schedule
3.1(g)
attached
hereto; and (ii) 100,000,000 shares of Preferred Stock, of which 3,000 shares
have been designated as “Series A Convertible Preferred Stock,” 0 of which are
issued and outstanding, none of which are held in treasury, or reserved for
issuance, 1,000 shares have been designated as “Series B Convertible Preferred
Stock,” 0 of which are issued and outstanding, and none of which are held in
treasury, or reserved for issuance and, shares have been designated as “Series C
Convertible Preferred Stock, [10,620,000] shares of which are issued and
outstanding, and none of which are held in treasury, or reserved for issuance.
Immediately after the Closing, after making any anti-dilution adjustment arising
from the issuance of the Series D Convertible Preferred Stock to the Purchaser
on the Closing Date, the authorized capital stock of the Company consists of:
(i) 100,000,000 shares of Common Stock, of which (A) [14,063,112] shares are
issued and outstanding, (B) no shares of Common Stock are held in treasury,
(C)
[20,619,128] shares are reserved for issuance upon conversion of the Series
C
Convertible Preferred Stock, (D) [14,000,000] shares are reserved for issuance
upon conversion of the Series D Convertible Preferred Stock, and (E)
[51,172,760] shares are reserved for issuance upon the conversion, exchange,
or
exercise of outstanding warrants and options (inclusive of the Series D
Warrants); and (ii) 100,000,000 shares of Preferred Stock, of which 3,000 shares
have been designated as “Series A Convertible Preferred Stock,” 0 of which are
issued and outstanding, none of which are held in treasury, or reserved for
issuance, 1,000 shares have been designated as “Series B Convertible Preferred
Stock,” 0 of which are issued and outstanding, and none of which are held in
treasury, or reserved for issuance, shares have been designated as “Series C
Convertible Preferred Stock, [10,620,000] shares of which are issued and
outstanding, and none of which are held in treasury, or reserved for issuance,
and shares have been designated as “Series D Convertible Preferred Stock,
[7,000,000] shares of which are issued and outstanding, and none of which are
held in treasury, or reserved for issuance. Except as set forth on Schedule
3.1(g),
no
Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except as a result of the purchase and sale of the
Securities or as set forth on Schedule
3.1(g),
there
are no outstanding options, warrants, script rights to subscribe to, calls
or
commitments of any character whatsoever relating to, or securities, rights
or
obligations convertible into or exercisable or exchangeable for, or giving
any
Person any right to subscribe for or acquire, any shares of Common Stock, or
contracts, commitments, understandings or arrangements by which the Company
or
any Subsidiary is or may become bound to issue additional shares of Common
Stock
or Common Stock Equivalents. Except as set forth on Schedule
3.1(g),
the
issuance and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the
Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under any of such
securities. All of the outstanding shares of capital stock of the Company are
validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. Except as set forth on Schedule
3.1(g),
no
further approval or authorization of any stockholder, the Board of Directors
of
the Company or others is required for the issuance and sale of the Securities.
Except as set forth on Schedule
3.1(g),
there
are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company’s
stockholders.
(h) SEC
Reports; Financial Statements.
Except
as set forth on Schedule 3.1(h), the Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the Company under
the Securities Act and the Exchange Act, including pursuant to Section 13(a)
or
15(d) thereof, for the two years preceding the date hereof (or such shorter
period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents
incorporated by reference therein, being collectively referred to herein as
the
“SEC Reports”) on a timely basis or has received a valid extension of such time
of filing and has filed any such SEC Reports prior to the expiration of any
such
extension. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, 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.
Except as set forth on Schedule 3.1(h), the financial statements of the Company
included in the SEC Reports comply in all material respects with applicable
accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved
(“GAAP”), except as may be otherwise specified in such financial statements or
the notes thereto and except that unaudited financial statements may not contain
all footnotes required by GAAP, and fairly present in all material respects
the
financial position of the Company and its consolidated Subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
(i) Material
Changes.
Since
the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in a subsequent SEC Report filed
prior
to the date hereof, (i) there has been no event, occurrence or development
that
has had or that could reasonably be expected to result in a Material Adverse
Effect, (ii) the Company has not incurred any material liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in
the
ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to
GAAP or disclosed in filings made with the Commission, (iii) the Company has
not
materially altered its method of accounting, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing
Company stock option or stock grant plans.
(j) Litigation.
Except
as set forth on Schedule
3.1(j),
there
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the
Company, any Subsidiary or any of their respective properties before or by
any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”)
which
(i) adversely affects or challenges the legality, validity or enforceability
of
any of the Transaction Documents or the Securities or (ii) could, if there
were
an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any Subsidiary, nor, to the best of
the
knowledge of the Company, any director or officer thereof, is or has been the
subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty.
(k) Labor
Relations.
No
material labor dispute exists or, to the knowledge of the Company, is imminent
with respect to any of the employees of the Company or any Subsidiary which
could reasonably be expected to result in a Material Adverse Effect. None of
the
Company’s or its Subsidiaries’ employees is a member of a union that relates to
such employee’s relationship with the Company, and neither the Company nor any
of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their
employees are good. No executive officer, to the knowledge of the Company,
is,
or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement
or
non-competition agreement, or any other contract or agreement or any restrictive
covenant, and, to the knowledge of the Company, the continued employment of
each
such executive officer does not subject the Company or any of its Subsidiaries
to any liability with respect to any of the foregoing matters. To the knowledge
of the Company, the Company and its Subsidiaries are in compliance with all
U.S.
federal, state, local and foreign laws and regulations relating to employment
and employment practices, terms and conditions of employment and wages and
hours, except where the failure to be in compliance could not, individually
or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(l) Compliance.
Except
as set forth on Schedule
3.1(l),
neither
the Company nor any Subsidiary (i) is in material default under or in violation
of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by the Company or any
Subsidiary under), nor has the Company or any Subsidiary received notice of
a
claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is
a
party or by which it or any of its properties is bound (whether or not such
default or violation has been waived), (ii) is in violation of any order of
any
court, arbitrator or governmental body, or (iii) to the knowledge of the
Company, is or has been in violation of any statute, rule or regulation of
any
governmental authority, including without limitation all foreign, federal,
state
and local laws applicable to its business and all such laws that affect the
environment, except in each case as could not have or reasonably be expected
to
result in a Material Adverse Effect.
(m) Regulatory
Permits.
Except
as set forth in Schedule
3.1(m)
hereto,
the Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in
the
SEC Reports, except where the failure to possess such permits could not have
or
reasonably be expected to result in a Material Adverse Effect (“Material
Permits”),
and
neither the Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any Material Permit.
(n) Title
to Assets.
The
Company and the Subsidiaries have good and marketable title in fee simple to
all
real property owned by them and good and marketable title in all personal
property owned by them that is material to the business of the Company and
the
Subsidiaries, in each case free and clear of all Liens, except for Liens 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
the Subsidiaries, Liens for the payment of federal, state or other taxes, the
payment of which is neither delinquent nor subject to penalties and Liens set
forth on Schedule
3.1(n).
Any
real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
with which the Company and the Subsidiaries are in compliance.
(o) Patents
and Trademarks.
Except
as set forth on Schedule
3.1(o),
to our
knowledge, the Company and the Subsidiaries have, or have rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, trade secrets, inventions, copyrights, licenses and other
intellectual property rights and similar rights necessary or material for use
in
connection with their respective businesses as described in the SEC Reports
and
which the failure to so have could have a Material Adverse Effect (collectively,
the “Intellectual
Property Rights”).
Neither the Company nor any Subsidiary has received a notice (written or
otherwise) that the Intellectual Property Rights used by the Company or any
Subsidiary violate or infringe upon the rights of any Person unless such notice
has been resolved without a Material Adverse Effect. To the knowledge of the
Company, all such Intellectual Property Rights are enforceable and there is
no
existing infringement by another Person of any of the Intellectual Property
Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the
aggregate, reasonably be expect to have a Material Adverse Effect.
(p) Insurance.
Except
as set forth in Schedule
3.1(p)
hereto,
the Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate Subscription Amount. Neither the
Company nor any 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 without a significant increase in cost.
(q) Transactions
With Affiliates and Employees.
Except
as set forth in the SEC Reports or as set forth on Schedule
3.1(q),
none of
the officers or directors of the Company or any Subsidiary and, to the knowledge
of the Company, none of the employees of the Company or any Subsidiary is
presently a party to any transaction with the Company or any Subsidiary (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to
or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to
the
knowledge of the Company, any entity in which any officer, director, or any
such
employee has a substantial interest or is an officer, director, trustee or
partner, other than (i) for payment of salary or consulting fees for services
rendered, (ii) reimbursement for expenses incurred on behalf of the Company
or a
Subsidiary and (iii) for other employee benefits, including stock option or
stock grant agreements under any stock plans of the Company.
(r) No
Disagreements with Auditors and Lawyers.
To the
knowledge of the Company, there are no material disagreements of any kind
presently existing, or reasonably anticipated by the Company to arise, between
the Company and the auditors and lawyers formerly or presently employed by
the
Company.
(s) Certain
Fees.
Except
as set forth on Schedule
3.1(s),
no
brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. Except as set forth on Schedule
3.1(s),
the
Purchasers shall have no obligation with respect to any fees or with respect
to
any claims made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents.
(t) Private
Placement.
Assuming the accuracy of the Purchasers’ representations and warranties set
forth in Section
3.2,
no
registration under the Securities Act is required for the offer and sale of
the
Securities by the Company to the Purchasers as contemplated hereby.
(u) Investment
Company.
The
Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(v) Registration
Rights.
Other
than as set forth on Schedule
3.1(v),
no
Person has any right to cause the Company to effect the registration under
the
Securities Act of any securities of the Company.
(w) Disclosure.
All
disclosure furnished by or on behalf of the Company to the Purchasers regarding
the Company, its business and the transactions contemplated hereby, including
the Disclosure Schedules to this Agreement, is true and correct and does not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The Company
acknowledges and agrees that Purchaser has not made any representations or
warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Section
3.2
hereof.
(x) No
Integrated Offering.
Assuming
the accuracy of the Purchasers’ representations and warranties set forth in
Section
3.2,
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 Securities Act.
(y) Solvency.
Based
on the financial condition of the Company as of the Closing Date after giving
effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the
Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as
proposed to be conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the Company, and
projected capital requirements and capital availability thereof and (iii) the
current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account
all
anticipated uses of the cash, would be sufficient to pay all amounts on or
in
respect of its liabilities when such amounts are required to be paid. The
Company does not intend to incur debts beyond its ability to pay such debts
as
they mature (taking into account the timing and amounts of cash to be payable
on
or in respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization
or
liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one (1) year from the Closing Date.
(z) Schedule
3.1(z)
sets
forth as of the dates thereof all outstanding secured and unsecured Indebtedness
of the Company or any Subsidiary, or for which the Company or any Subsidiary
has
commitments. For the purposes of this Agreement, “Indebtedness”
shall
mean (a) any liabilities for borrowed money or amounts owed (other than trade
accounts payable incurred in the ordinary course of business) in excess of
$50,000, (b) all guaranties, endorsements and other contingent obligations
in
respect of Indebtedness of others, whether or not the same are or should be
reflected in the Company’s balance sheet (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or collection
or
similar transactions in the ordinary course of business; and (c) the present
value of any lease payments
in excess of $50,000 due under leases required to be capitalized in accordance
with GAAP. Neither
the Company nor any Subsidiary is in default with respect to any
Indebtedness.
(aa) Tax
Status.
The
Company has timely filed all tax returns, reports, declarations, statements,
and
other information required by law to be filed with or supplied to any taxing
authority with respect to the Taxes (as defined below) owed by the Company
(the
“Tax
Returns”).
All
Taxes due and payable on or before the Closing have been paid or will be paid
prior to the time they become delinquent. All Taxes that the Company is or
was
required by law to withhold or collect have been duly withheld or collected
and,
to the extent required, have been paid to the proper governmental entity. The
Company has not been advised (a) that any of the Tax Returns have been or are
being examined or audited as of the date hereof, (b) that any such examination
or audit is currently threatened or contemplated, or (c) of any deficiency
in
assessment or proposed judgment to its Taxes. The Company has no knowledge
of
any liability for any Taxes to be imposed upon its properties or assets as
of
the date of this Agreement that are not adequately provided for on the Balance
Sheet. The Company has delivered or made available to the Investor true and
complete copies of all federal income Tax Returns, examination reports, and
statements of deficiencies filed by, assessed against or agreed to by the
Company in the past three years. The Company has never been a member of a
consolidated or affiliated group of corporations filing a consolidated or
combined income Tax Return, nor does the Company have any liability for Taxes
of
any other person or entity. The Company is not a party to any tax allocation
or
sharing arrangement or tax indemnity agreement. For purposes of this Agreement,
the term “Taxes”
shall
mean all taxes, charges, fees, levies, or other similar assessments or
liabilities, including, without limitation, income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property, sales, use,
transfer, withholding, employment, payroll, and franchise taxes imposed by
the
United States of America or any other governmental entity, and any interest,
fines, penalties, assessments, or additions to tax resulting from, attributable
to or incurred in connection with any tax or any contest or dispute
thereof.
(bb) No
General Solicitation.
Neither
the Company nor any person acting on behalf of the Company has offered or sold
any of the Securities by any form of general solicitation or general
advertising. The Company has offered the Securities for sale only to the
Purchasers and certain other “accredited investors” within the meaning of Rule
501 under the Securities Act.
(cc) Acknowledgment
Regarding Purchasers’ Purchase of Securities.
The
Company acknowledges and agrees that the Purchaser is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents
and the transactions contemplated thereby. The Company further acknowledges
that
no Purchaser is acting as a financial advisor or fiduciary of the Company (or
in
any similar capacity) with respect to the Transaction Documents and the
transactions contemplated thereby and any advice given by Purchaser or any
of
their respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to
the
Purchasers’ purchase of the Securities. The Company further represents to
Purchaser that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of
the
transactions contemplated hereby by the Company and its
representatives.
(dd) Acknowledgement
Regarding Purchasers’ Trading Activity.
Anything in this Agreement or elsewhere herein to the contrary notwithstanding,
it is understood and acknowledged by the Company (i) that none of the Purchasers
have been asked to agree, nor has Purchaser agreed, to desist from purchasing
or
selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities
for any specified term; (ii) that past or future open market or other
transactions by any Purchaser, including Short Sales, and specifically
including, without limitation, Short Sales or “derivative” transactions, before
or after the closing of this or future private placement transactions, may
negatively impact the market price of the Company’s publicly-traded securities;
(iii) that Purchaser, and counter-parties in “derivative” transactions to which
any such Purchaser is a party, directly or indirectly, presently may have a
“short” position in the Common Stock, and (iv) that Purchaser shall not be
deemed to have any affiliation with or control over any arm’s length
counter-party in any “derivative” transaction. The Company further understands
and acknowledges that (a) Purchaser may engage in hedging activities at various
times during the period that the Securities are outstanding, including, without
limitation, during the periods that the value of the Underlying Shares
deliverable with respect to Securities are being determined and (b) such hedging
activities (if any) could reduce the value of the existing stockholders' equity
interests in the Company at and after the time that the hedging activities
are
being conducted. The Company acknowledges that such aforementioned hedging
activities do not constitute a breach of any of the Transaction
Documents.
(ee) Manipulation
of Price.
The
Company has not, and to its knowledge no one acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in
the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities, (ii) except as set
forth
on Schedule
3.1(ff)
or
private transactions not involving a market maker, sold, bid for, purchased,
or
paid any compensation for soliciting purchases of, any of the securities of
the
Company or (iii) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company, other than,
in the case of clauses (ii) and (iii), compensation paid to the Company’s
placement agent in connection with the placement of the Securities.
3.2 Representations
and Warranties of the Purchasers.
Purchaser hereby represents and warrants as of the date hereof and as of the
Closing Date to the Company as follows:
(a) Organization;
Authority.
Purchaser is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with full right,
corporate or partnership power and authority to enter into and to consummate
the
transactions contemplated by the Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder. The execution, delivery and
performance by such Purchaser of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate or similar action on the
part of Purchaser. Each Transaction Document to which it is a party has been
duly executed by Purchaser, and when delivered by Purchaser in accordance with
the terms hereof, will constitute the valid and legally binding obligation
of
Purchaser, enforceable against it in accordance with its terms, except (i)
as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may
be
limited by applicable law.
(b) Own
Account.
Purchaser understands that the Securities are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities
law and is acquiring the Securities as principal for its own account and not
with a view to or for distributing or reselling such Securities or any part
thereof in violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such Securities in
violation of the Securities Act or any applicable state securities law and
has
no direct or indirect arrangement or understandings with any other persons
to
distribute or regarding the distribution of such Securities (this representation
and warranty not limiting such Purchaser’s right to sell the Securities pursuant
to the Registration Statement or otherwise in compliance with applicable federal
and state securities laws) in violation of the Securities Act or any applicable
state securities law. Purchaser is acquiring the Securities hereunder in the
ordinary course of its business.
(c) Purchaser
Status.
At the
time Purchaser was offered the Securities, it was, and at the date hereof it
is,
and on each date on which it exercises any Warrants or converts any Series
D
Convertible Preferred Stock it will be either: (i) an “accredited investor” as
defined in Rule 501 under the Securities Act or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act. Such Purchaser is
not required to be registered as a broker-dealer under Section 15 of the
Exchange Act.
(d) Experience
of Such Purchaser.
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial matters
so as
to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment.
Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such
investment.
(e) General
Solicitation.
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in
any
newspaper, magazine or similar media or broadcast over television or radio
or
presented at any seminar or any other general solicitation or general
advertisement.
(f) Short
Sales and Confidentiality Prior To The Date Hereof.
Other
than the transaction contemplated hereunder, Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to any
understanding with Purchaser, executed any disposition, including Short Sales,
in the securities of the Company during the period commencing from the time
that
Purchaser first received a term sheet (written or oral) from the Company or
any
other Person setting forth the material terms of the transactions contemplated
hereunder until the date hereof (“Discussion
Time”).
Notwithstanding the foregoing, in the case of a Purchaser that is a
multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of Purchaser's assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers
managing other portions of Purchaser's assets, the representation set forth
above shall only apply with respect to the portion of assets managed by the
portfolio manager that made the investment decision to purchase the Securities
covered by this Agreement. Other than to other Persons party to this Agreement,
Purchaser has maintained the confidentiality of all disclosures made to it
in
connection with this transaction (including the existence and terms of this
transaction).
(g) Risk
Factors.
Purchaser hereby agrees and acknowledges that it has been informed of the
following: (i) there are factors relating to the subsequent transfer of any
Securities acquired hereunder that could make the resale of such Securities
difficult; and (ii) there is no guarantee that Purchaser will realize any gain
from the purchase of the Securities. The purchase of the Securities involves
a
high degree of risk and is subject to many uncertainties. These risks and
uncertainties may adversely affect the Company’s business, operating results and
financial condition. In such an event, the trading price for the Common Stock
could decline substantially and Purchaser could lose all or part of its
investment.
(h) Due
Diligence.
Purchaser hereby agrees and acknowledges that Purchaser has had an opportunity
to meet with representatives of the Company and to ask questions and receive
answers to Purchaser’s satisfaction regarding the Company’s proposed business
and the Company’s financial condition in order to assist Purchaser in evaluating
the merits and risks of purchasing the Securities. All material documents and
information pertaining to the Company and the purchase of Securities hereunder
that have been requested by Purchaser have been made available to
Purchaser.
(i) Certain
Fees.
Purchaser has not employed any broker or finder or incurred any liability for
any brokerage or investment banking fees, commissions, finders’ structuring
fees, financial advisory fees or other similar fees in connection with the
Transaction Documents.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other than
pursuant to an effective registration statement or Rule 144, to the Company
or
to an Affiliate of Purchaser or in connection with a pledge as contemplated
in
Section
4.1(b),
the
Company may require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor and reasonably acceptable to the Company,
the form and substance of which opinion shall be reasonably satisfactory to
the
Company, to the effect that such transfer does not require registration of
such
transferred Securities under the Securities Act. As a condition of transfer,
any
such transferee shall agree in writing to be bound by the terms of this
Agreement and shall have the rights of a Purchaser under this Agreement and
the
Amended Registration Rights Agreement.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section
4.1,
of a
legend on any of the Securities in the following form:
NEITHER
THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE]
[CONVERTIBLE] HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION]
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR
OTHER LOAN SECURED BY SUCH SECURITIES.
(a) The
Company acknowledges and agrees that Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Securities to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement
and the Amended Registration Rights Agreement and, if required under the terms
of such arrangement, Purchaser may transfer pledged or secured Securities to
the
pledgees or secured parties. Such a pledge or transfer would not be subject
to
approval of the Company and no legal opinion of legal counsel of the pledgee,
secured party or pledgor shall be required in connection therewith. Further,
no
notice shall be required of such pledge. At Purchaser’s expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured
party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including, if the Securities are subject to
registration pursuant to the Amended Registration Rights Agreement, the
preparation and filing of any required prospectus supplement under Rule
424(b)(3) under the Securities Act or other applicable provision of the
Securities Act to appropriately amend the list of selling stockholders
thereunder.
4.2 Acknowledgment
of Dilution.
The
Company acknowledges that the issuance of the Securities may result in dilution
of the outstanding shares of Common Stock, which dilution may be substantial
under certain market conditions. The Company further acknowledges that its
obligations under the Transaction Documents, including without limitation its
obligation to issue the Underlying Shares pursuant to the Transaction Documents,
are unconditional and absolute and not subject to any right of set off,
counterclaim, delay or reduction, regardless of the effect of any such dilution
or any claim the Company may have against any Purchaser and regardless of the
dilutive effect that such issuance may have on the ownership of the other
stockholders of the Company.
4.3 Integration.
The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the
sale
of the Securities to the Purchaser.
4.4 Shareholder
Rights Plan.
No
claim will be made or enforced by the Company or, with the consent of the
Company, any other Person, that Purchaser is an “Acquiring Person” under any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or similar anti-takeover plan or
arrangement in effect or hereafter adopted by the Company, or that Purchaser
could be deemed to trigger the provisions of any such plan or arrangement,
by
virtue of receiving Securities under the Transaction Documents or under any
other agreement between the Company and the Purchaser.
4.5 Use
of
Proceeds.
Except
as set forth on Schedule
4.5
attached
hereto, the Company shall use the net proceeds from the sale of the Securities
hereunder for working capital purposes and not for the satisfaction of any
portion of the Company’s debt (other than payment of trade payables in the
ordinary course of the Company’s business and prior practices, including
attorney’s and professional fees), to redeem any Common Stock or Common Stock
Equivalents or to settle any outstanding litigation.
4.6 Reimbursement.
If
Purchaser becomes involved in any capacity in any Proceeding by or against
any
Person who is a stockholder of the Company (except as a result of sales,
pledges, margin sales and similar transactions by such Purchaser to or with
any
other stockholder), solely as a result of Purchaser’s acquisition of the
Securities from the Company under this Agreement, the Company will reimburse
Purchaser for its reasonable legal and other expenses (including the cost of
any
investigation preparation and travel in connection therewith) incurred in
connection therewith, as such expenses are incurred. The reimbursement
obligations of the Company under this paragraph shall be in addition to any
liability which the Company may otherwise have, shall extend upon the same
terms
and conditions to any Affiliates of the Purchaser who are actually named in
such
action, proceeding or investigation, and partners, directors, agents, employees
and controlling persons (if any), as the case may be, of the Purchaser and
any
such Affiliate, and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Company, the
Purchaser and any such Affiliate and any such Person. The Company also agrees
that neither the Purchaser nor any such Affiliates, partners, directors, agents,
employees or controlling persons shall have any liability to the Company or
any
Person asserting claims on behalf of or in right of the Company solely as a
result of acquiring the Securities under this Agreement.
4.7 Indemnification
of Purchasers.
Subject
to the provisions of this Section
4.7,
the
Company will indemnify and hold Purchaser and its directors, officers,
shareholders, members, partners, employees and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each Person who
controls Purchaser (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding
a
lack of such title or any other title) of such controlling person (each, a
“Purchaser
Party”)
harmless from any and all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses, including all judgments, amounts
paid in settlements, court costs and reasonable attorneys’ fees and costs of
investigation that any such Purchaser Party may suffer or incur as a result
of
or relating to (a) any breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement or in the other
Transaction Documents or (b) any action instituted against Purchaser, or any
of
its Affiliates, by any stockholder of the Company who is not an Affiliate of
such Purchaser, solely as a result of such Purchaser’s acquisition of the
Securities pursuant to this Agreement (unless such action is based upon a breach
of such Purchaser’s representations, warranties or covenants under the
Transaction Documents or any agreements or understandings such Purchaser may
have with any such stockholder or any violations by the Purchaser of state
or
federal securities laws or any conduct by such Purchaser which constitutes
fraud, gross negligence, willful misconduct or malfeasance). If any action
shall
be brought against any Purchaser Party in respect of which indemnity may be
sought pursuant to this Agreement, such Purchaser Party shall promptly notify
the Company in writing, and the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the
Purchaser Party. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees
and expenses of such counsel shall be at the expense of such Purchaser Party
except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel,
a
material conflict on any material issue between the position of the Company
and
the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one (1) such
separate counsel. The Company will not be liable to any Purchaser Party under
this Agreement (i) for any settlement by a Purchaser Party effected without
the
Company’s prior written consent, which shall not be unreasonably withheld or
delayed; or (ii) to the extent, but only to the extent that a loss, claim,
damage or liability is attributable to any Purchaser Party’s breach of any of
the representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents, except if such
claim arises primarily from a breach of such Purchaser’s representations,
warranties or covenants under the Transaction Documents or any agreements or
understandings such Purchaser may have with any such stockholder or any
violations by the Purchaser of state or federal securities laws or any conduct
by such Purchaser which constitutes fraud, gross negligence, willful misconduct
or malfeasance..
4.8 Reservation
and Listing of Securities.
(a) Subject
to Shareholder Approval, the Company shall maintain a reserve from its duly
authorized shares of Common Stock for issuance pursuant to the Transaction
Documents in such amount as may be required to fulfill its obligations in full
under the Transaction Documents.
(b) If,
on
any date, the number of authorized but unissued (and otherwise unreserved)
shares of Common Stock is less than the Required Minimum on such date, then
the
Board of Directors of the Company shall use commercially reasonable efforts
to
amend the Company’s certificate or articles of incorporation to increase the
number of authorized but unissued shares of Common Stock to at least the
Required Minimum at such time, as soon as possible and in any event not later
than the 90th day after such date.
4.9 Participation
in Future Financing.
(a) From
the
date hereof until the date that is the one (1) year anniversary of the Closing
Date, upon any issuance by the Company or any of its Subsidiaries of Common
Stock or Common Stock Equivalents (a “Subsequent
Financing”),
Purchaser shall have the pro-rata right to participate in the Subsequent
Financing on the same terms, conditions and price provided for in the Subsequent
Financing.
(b) At
least
ten (10) Trading Days prior to the closing of the Subsequent Financing, the
Company shall deliver to Purchaser a written notice of its intention to effect
a
Subsequent Financing (“Pre-Notice”),
which
Pre-Notice shall ask Purchaser if it wants to review the details of such
financing (such additional notice, a “Subsequent
Financing Notice”).
Upon
the request of Purchaser, and only upon a request by such Purchaser, for a
Subsequent Financing Notice, the Company shall promptly, but no later than
one
(1) Trading Day after such request, deliver a Subsequent Financing Notice to
Purchaser. The Subsequent Financing Notice shall describe in reasonable detail
the proposed terms of such Subsequent Financing, the amount of proceeds intended
to be raised thereunder, the Person or Persons through or with whom such
Subsequent Financing is proposed to be effected, and attached to which shall
be
a term sheet or similar document relating thereto.
(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide
written notice to the Company by not later than 5:30 p.m. (New York City time)
on the 10th Trading Day after all of the Purchasers have received the Pre-Notice
that the Purchaser is willing to participate in the Subsequent Financing, the
amount of the Purchaser’s participation, and that the Purchaser has such funds
ready, willing, and available for investment on the terms set forth in the
Subsequent Financing Notice. If the Company receives no notice from a Purchaser
as of such 10th Trading Day, such Purchaser shall be deemed to have notified
the
Company that it does not elect to participate.
(d) If
by
5:30 p.m. (New York City time) on the 10th Trading Day after all of the
Purchasers have received the Pre-Notice, notifications by Purchaser of its
willingness to participate in the Subsequent Financing (or to cause their
designees to participate) is, in the aggregate, less than the total amount
of
the Subsequent Financing, then the Company may effect the remaining portion
of
such Subsequent Financing on the terms and with the Persons set forth in the
Subsequent Financing Notice.
(e) Notwithstanding
the foregoing, this Section
4.9
shall
not apply in respect of an Exempt Issuance, and (ii) shares of Common Stock
issued solely in connection with dividends required to be paid under the terms
and conditions of the Series DConvertible Preferred Stock.
4.10 Variable
Rate Transactions.
From
the date hereof until the twelve (12) month anniversary of the Closing Date,
the
Company shall be prohibited from effecting or entering into an agreement to
effect any Subsequent Financing involving a “Variable Rate Transaction,” The
term “Variable Rate Transaction” shall mean a transaction in which the Company
issues or sells (i) any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include the right to receive additional
shares of Common Stock either at a conversion, exercise or exchange rate or
other price that is based upon and/or varies with the trading prices of or
quotations in the public secondary market for the shares of Common Stock at
any
time after the initial issuance of such debt or equity securities, or (ii)
enters into any agreement, including, but not limited to, an equity line of
credit, whereby the Company may sell securities at a future determined price.
4.11 Form
D; Blue Sky Filings.
The
Company agrees to timely file a Form D with respect to the Securities as
required under Regulation D and to provide a copy thereof, promptly upon request
of Purchaser. The Company shall 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 Purchasers at the Closing under applicable
securities or “Blue Sky” laws of the states of the United States, and shall
provide evidence of such actions promptly upon request of
Purchaser.
4.12 Short
Sales and Confidentiality After The Date Hereof.
The
Purchaser covenants that neither it nor any Affiliate acting on its behalf
or
pursuant to any understanding with it will execute any Short Sales during the
period commencing at the Discussion Time and ending at the time that the
transactions contemplated by this Agreement are first publicly announced. The
Purchaser covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company, such Purchaser will
maintain the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction).
Notwithstanding
the foregoing, no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in Short Sales in the securities of the Company
after the time that the transactions contemplated by this Agreement are first
publicly announced.
4.13 Shareholder
Approval.
On the
date first set forth above, the number of authorized but unissued (and otherwise
unreserved) shares of Common Stock is less than the maximum aggregate number
of
shares of Common Stock issuable upon exercise of the Series D Warrants and
the
Series BD Warrants. As a result, the Board of Directors of the Company has
reserved and set-aside 16,800,000 shares of Common Stock for issuance upon
exercise of the Series D Warrants, and has reserved and set-aside 1,260,000
shares of Common Stock for issuance upon exercise of the Series BD Warrants.
The
number of Warrant Shares that have not been reserved, and thus the issuance
of
which is subject to Shareholder Approval (as defined below), equals (a)
11,200,000 shares of Common Stock with respect to the Series D Warrants, and
(b)
840,000 shares of Common Stock with respect to the Series BD Warrant
(collectively, the “Unreserved Warrant Shares”). The Company shall use its best
efforts to file a proxy or information statement with the SEC and use its best
efforts to obtain such approvals of the Company’s stockholders as may be
required to increase the Company’s authorized capital stock to allow for the
issuance of the Unreserved Warrant Shares issuable upon exercise of the
Warrants, in accordance with Nevada law and any applicable rules or regulations
of the Over-the-Counter Bulletin Board and Nasdaq, either through a reverse
stock split of the Common Stock or an increase in authorized capital (the
“Shareholder Approval”), as soon as possible and in any event not later than the
90th day after the date hereof. The Company shall comply with the filing and
disclosure requirements of Section 14 under the 1934 Act in connection with
the
Stockholder Approval.
ARTICLE
V
MISCELLANEOUS
5.1 Fees
and Expenses.
At the
Closing, the Company has agreed to reimburse the Purchaser the non-accountable
sum of $100,000 and pay for legal fees of the Purchaser. Except as expressly
set
forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts,
if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company
shall pay all transfer agent fees, stamp taxes and other taxes and duties levied
in connection with the delivery of any Securities to the
Purchasers.
5.2 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.3 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number set forth on the signature
pages attached hereto prior to 5:30 p.m. (New York City time) on a Trading
Day,
(b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth
on
the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the 2nd Trading
Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice
is
required to be given. The address for such notices and communications shall
be
as set forth on the signature pages attached hereto.
5.4 Amendments;
Waivers.
No
provision of this Agreement may be waived, modified, supplemented or amended
except in a written instrument signed, in the case of an amendment, by the
Company and the Purchaser or, in the case of a waiver, by the party against
whom
enforcement of any such waived provision is sought. No waiver of any default
with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent
default or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder in
any
manner impair the exercise of any such right.
5.5 Headings.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company may not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of Purchaser (other than by merger). Purchaser may assign any or all
of
its rights under this Agreement to any Person to whom such Purchaser assigns
or
transfers any Securities, provided such transferee agrees in writing to be
bound, with respect to the transferred Securities, by the provisions of the
Transaction Documents that apply to the “Purchasers”.
5.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
5.8 Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced
in
accordance with the internal laws of the State of Florida, without regard to
the
principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective affiliates, directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in Hillsborough County, Florida. Each
party
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Hillsborough County, Florida for the adjudication
of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the
enforcement of any of the Transaction Documents), and hereby irrevocably 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 improper or is an inconvenient venue for such
proceeding. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices
to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other
manner permitted by law. The parties hereby waive all rights to a trial by
jury.
If either party shall commence an action or proceeding to enforce any provisions
of the Transaction Documents, then the prevailing party in such action or
proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
5.9 Survival.
The
representations, warranties, covenants and other agreements contained herein
shall survive the Closing and the delivery, exercise and/or conversion of the
Securities, as applicable for a period of two (2) years from the date of this
Agreement.
5.10 Execution.
This
Agreement may be executed in two (2) or more counterparts, all of which when
taken together 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, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile or “.pdf” signature page were an original thereof.
5.11 Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
5.12 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, the Purchaser and the Company will be
entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss
incurred by reason of any breach of obligations contained in the Transaction
Documents and hereby agrees to waive and not to assert in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.13 Construction.
The
parties agree that each of them and/or their respective counsel has reviewed
and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.
(Remainder
of Page Intentionally Left Blank)
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as
of
the date first indicated above.
|
Address
for Notice:
|
|
|
By:
_________________________________________
Name: Xxxx
Xxxxxxxx
Title: Chief
Executive Officer
|
0000
Xxxx Xxxxxxxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
|
With
a copy to (which shall not constitute notice):
Xxxxxx
X. Xxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
|
(Remainder
of Page Intentionally Left Blank)
(Signature
Page For Purchaser Follows)
[PURCHASER
SIGNATURE PAGES TO SECURITIES
PURCHASE
AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of the date
first indicated above.
Name
of
Purchaser: Vicis Capital Master Fund,
Signature
of Authorized Signatory of Purchaser:
________________________________________
Name
of
Authorized Signatory:
______________________________________________________
Title
of
Authorized Signatory:
_______________________________________________________
Email
Address of Purchaser:
________________________________________________________
Facsimile
Number of Purchaser:
______________________________________________________
Jurisdiction
of Organization of Purchaser:
______________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as above):
