Exhibit 10.35
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "AGREEMENT") is entered
into as of May 8, 2003, between Applied Digital Solutions, Inc., a Missouri
corporation (the "COMPANY"), and Magellan International Ltd. (the
"PURCHASER").
WHEREAS, the Company has registered with the Securities and
Exchange Commission (the "COMMISSION") the issuance of certain shares (the
"SHARES") of its common stock, $0.001 par value per share (the "COMMON
STOCK"), under a registration statement on Form S-1 (Registration No.
333-102165) (the "REGISTRATION STATEMENT").
WHEREAS, subject to the terms and conditions set forth in this
Agreement, the Company desires to sell to the Purchaser and the Purchaser
desires to purchase from the Company up to twelve million five hundred
thousand (12,500,000) Shares currently available under the Registration
Statement.
NOW, THEREFORE, in consideration of the foregoing, 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 the Purchaser agree as follows:
1. SETTLEMENT DATES.
----------------
(a) Settlement Dates. The closing, if any, of the purchase and sale
----------------
of the Shares under this Agreement will take place at the offices of Xxxxx
Xxxx LLP ("XXXXX XXXX"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the settlement dates set forth below. Subject to the terms and
conditions of this Agreement, the Shares will be issued, delivered and paid
for on up to five settlement dates (if any).
(1) The first settlement date (if any) will occur on the
fourth (4th) Trading Day (as defined below) following (and including) the
Press Release Date (the "FIRST SETTLEMENT DATE"). Subject to the terms and
conditions of this Agreement, on the First Settlement Date, the Company will
issue and deliver to the Purchaser and the Purchaser shall pay for 2,500,000
Shares (subject to adjustment, at the sole option of the Purchaser, in
accordance with and subject to the provisions of Sections 1(b)(2) or (3)).
(2) The second settlement date (if any) will occur on the
seventh (7th) Trading Day following (and including) the Press Release Date
(the "SECOND SETTLEMENT DATE"). Subject to the terms and conditions of this
Agreement, on the Second Settlement Date, the Company will issue and deliver
to the Purchaser and the Purchaser shall pay for 5,000,000 Shares less the
number of any Shares purchased by the Purchaser on the First Settlement Date
(subject to adjustment, at the sole option of the Purchaser, in accordance
with and subject to the provisions of Sections 1(b)(2) or (3)).
(3) The third settlement date (if any) will occur on the
tenth (10th) Trading Day following (and including) the Press Release Date
(the "THIRD SETTLEMENT DATE"). Subject to the terms and conditions of this
Agreement, on the Third Settlement Date, the
Company will issue and deliver to the Purchaser and the Purchaser shall pay
for 7,500,000 Shares less the number of any Shares purchased by the
Purchaser on the First Settlement Date and the Second Settlement Date
(subject to adjustment, at the sole option of the Purchaser, in accordance
with and subject to the provisions of Sections 1(b)(2) or (3)).
(4) The fourth settlement date (if any) will occur on the
thirteenth (13th) Trading Day following (and including) the Press Release
Date (the "FOURTH SETTLEMENT DATE"). Subject to the terms and conditions of
this Agreement, on the Fourth Settlement Date, the Company will issue and
deliver to the Purchaser and the Purchaser shall pay for 10,000,000 Shares
less the number of any Shares purchased by the Purchaser on the First
Settlement Date, the Second Settlement Date and the Third Settlement Date
(subject to adjustment, at the sole option of the Purchaser, in accordance
with and subject to the provisions of Sections 1(b)(2) or (3)).
(5) The fifth settlement date (if any) will occur on the
sixteenth (16th) Trading Day following (and including) the Press Release
Date (the "FIFTH SETTLEMENT DATE" and together with the First Settlement
Date, the Second Settlement Date, the Third Settlement Date and the Fourth
Settlement Date, collectively, a "SETTLEMENT DATE"). Subject to the terms
and conditions of this Agreement, on the Fifth Settlement Date, the Company
will issue and deliver to the Purchaser and the Purchaser shall pay for
12,500,000 Shares less the number of any Shares purchased by the Purchaser
on the First Settlement Date, the Second Settlement Date, the Third
Settlement Date and the Fourth Settlement Date (subject to adjustment, at
the sole option of the Purchaser, in accordance with and subject to the
provisions of Sections 1(b)(2) or (3)).
(b) Per Share Purchase Price; Additional Share Elections.
----------------------------------------------------
(1) The purchase price for each Share issuable under this
Agreement on a Settlement Date (the "PER SHARE PURCHASE PRICE") shall equal
87.25% of the average of the VWAP's for the three Trading Days immediately
preceding such Settlement Date, but in no event less than the Floor Price
(as defined below).
(2) The Company is not required to sell, and the Purchaser
is not required to purchase, any Shares at a price that is less than the
Floor Price. If the Per Share Purchase Price with respect to a particular
Settlement Date is less than the Floor Price: (a) the Purchaser may, but is
not required to, require the Company to issue and sell to it up to the
maximum aggregate amount of Shares to be sold hereunder (it being understood
that not more than an aggregate of 12,500,000 Shares will be issued and sold
under this Agreement), and (b) if Purchaser elects to acquire such Shares
under (a) above, then the per share purchase price for such Shares shall
equal the Floor Price.
(3) At any time prior to 6:00 p.m. (New York time) on the
day preceding a Settlement Date, the Purchaser may elect by written notice
to the Company, to acquire (in addition to the Shares which it may be
obligated to acquire at such time) up to the maximum aggregate amount of
Shares to be sold hereunder (it being understood that not more than an
aggregate of 12,500,000 Shares will be issued and sold under this
Agreement).
2
(4) Notwithstanding anything herein to the contrary, if
the VWAP on two consecutive Settlement Dates is less than $0.40, then, at
any time thereafter, Purchaser shall be entitled to terminate any and all of
its obligations under this Agreement by delivery of a written notice to the
Company to such effect.
(5) The Purchaser is not permitted to acquire Shares
hereunder to the extent that, giving effect to such proposed acquisition,
the beneficial ownership of the Common Stock by the Purchaser (together with
its affiliates and any other Persons whose beneficial ownership of Common
Stock would be aggregated with the Purchaser's for purposes of Section 13(d)
of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")),
would exceed 9% of the total number of issued and outstanding shares of
Common Stock (including for such purpose the shares of Common Stock
potentially issuable upon such acquisition). Notwithstanding anything herein
to the contrary, the obligations of the parties hereto is subject to the
immediately preceding sentence and will be deemed automatically modified so
as to avoid any contravention thereof.
(c) Deliveries on each Settlement Date. Subject to the terms and
----------------------------------
conditions of this Agreement, on each Settlement Date: (x) the Company will
deliver to the Purchaser, (A) via such Purchaser's DTC Account through the
Depository Trust Company DWAC system, a number of Shares equal to the
applicable number of Shares being acquired on such Settlement Date, and (B)
a certificate, executed by the President of the Company, to the effect that
the Company has and is in compliance with all of the conditions set forth in
Section 2, and (y) the Purchaser will, upon receipt of such Shares in the
DWAC system, deliver to the Company, an amount in United States dollars
equal to the product of (i) such number of Shares, and (ii) the Per Share
Purchase Price applicable to such Settlement Date, via wire transfer of
immediately available funds to an account designated in writing by the
Company for such purpose.
(d) Certain Defined Terms. As used in this Agreement, unless
---------------------
otherwise defined, the following terms shall have the respective meanings
set forth in this Section 1(d):
1. "COMPANY REGISTRATION STATEMENT" means the Registration
Statement, including the Prospectus, amendments and supplements to the
Registration Statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material and exhibits incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
2. "FLOOR PRICE" means $0.35, subject to equitable
adjustment for stock splits, recombinations and similar events.
3. "PERSON" means any court or other federal, state, local
or other governmental authority or other 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.
4. "PRESS RELEASE DATE" means May 9, 2003; provided, that
--------
the Company shall file the press release contemplated by Section 2(d) on
such date not later than 8:30 a.m. (New York time).
3
5. "PROSPECTUS" means the prospectus included in the
Registration Statement (including, without limitation, a prospectus that
includes any information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any
portion of the Shares covered by the Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material or exhibits incorporated by reference or deemed
to be incorporated by reference in the Prospectus.
6. "SECURITIES ACT" means the Securities Act of 1933, as
amended.
7. "TRADING DAY" means (a) a day on which the Common Stock
is traded on the Nasdaq SmallCap Market, Nasdaq National Market, New York
Stock Exchange or American Stock Exchange, or (b) if the Common Stock is not
listed on any of the Nasdaq SmallCap Market, Nasdaq National Market, New
York Stock Exchange or American Stock Exchange, a day on which the Common
Stock is traded in the over-the-counter market, as reported by the OTC
Bulletin Board, or (c) if the Common Stock is not quoted on the OTC Bulletin
Board, a day on which the Common Stock is quoted in the over-the-counter
market as reported by the National Quotation Bureau Incorporated (or any
similar organization or agency succeeding its functions of reporting
prices); provided, however, that in the event that the Common Stock is not
listed or quoted as set forth in (a), (b) and (c) above, then Trading Day
shall mean any day except Saturday, Sunday and any day which shall be a
legal holiday or a day on which banking institutions in the State of New
York are authorized or required by law or other government action to close.
8. "VWAP" means on any Trading Day, the volume weighted
average trading price (as reported by Bloomberg Financial L.P. using the VAP
function) of the Common Stock for such Trading Day.
2. CONDITIONS. The obligation of the Purchaser to purchase and
----------
acquire Shares under this Agreement is subject to the fulfillment (or waiver
by the Purchaser) of each of the following conditions:
(a) The Company Registration Statement: (x) shall be effective as
to all Shares, not subject to any threatened or actual stop order and (y)
will not contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The Company shall have secured the listing of the Shares on the
Nasdaq SmallCap Market (subject to official notice of issuance).
(c) The representations and warranties of the Company made in this
Agreement shall be true and correct as of and on each of the date of this
Agreement and each Settlement Date, as if first made and restated on each
such date.
4
(d) The Company shall have issued a press release reasonably
acceptable to the Purchaser, disclosing the existence of this Agreement and
the material terms hereof. The Purchaser may terminate its obligation to
acquire Shares under this Agreement if the Company shall not have issued
such press release by 8:30 a.m. (New York time) on May 9, 2003.
(e) There shall be no litigation, investigation, inquiry or
proceeding pending or threatened in writing (including without limitation
with the Commission, the Nasdaq Stock Market, or the NASD) that challenges
or calls into the question the transactions contemplated hereby or, if
determined in a manner adverse to the Company, that could reasonably be
expected to result in a material and adverse effect on the Company, its
business or its prospects or impose liability upon the Purchaser.
(f) On the first Settlement Date, the Company shall file with the
Commission a prospectus supplement to the Company Registration Statement, in
agreed form, in order to evidence and disclose the offer and sale of the
Shares issued hereunder (the "SUPPLEMENT").
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
---------------------------------------------
hereby makes the following representations and warranties to the Purchaser:
(a) Organization and Qualification. The Company is a corporation
------------------------------
duly incorporated, validly existing and in good standing under the laws of
the State of Missouri with the requisite corporate power and authority to
own and use its properties and assets and to carry on its business as
currently conducted, except where the failure to do so would not reasonably
be expected to have a material adverse effect on the Company or the
transactions contemplated hereby. The Company 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
do so would not reasonably be expected to have a material adverse effect on
the Company or the transaction contemplated hereby.
(b) Authorization. The Company has the requisite corporate power
-------------
and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations thereunder. The
execution and delivery of this Agreement by the Company and the consummation
of the transaction contemplated hereby have been duly authorized by all
necessary action on the part of the Company and no further action is
required by the Company or its shareholders for the Company to execute and
consummate this Agreement and the transactions contemplated hereby. This
Agreement has been duly executed by the Company and, when delivered in
accordance with the terms hereof, and assuming the valid execution hereof by
the Purchaser, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except
(a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, (b) as
enforceability of any indemnification and contribution provisions may be
limited under the federal and state securities laws and public policy, and
(c) that the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
5
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby does not and will not: (i) conflict with or
violate any provision of the Company's certificate of incorporation or
bylaws (each as amended through the date hereof), or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment or acceleration (with or without notice, lapse of time or both)
of, any agreement or indebtedness to which the Company is a party or by
which any property or asset of the Company is bound or affected, except
where the failure to do so would not reasonably be expected to have a
material adverse effect on the Company or the transaction contemplated
hereby or (iii) result in a violation of any law, rule, regulation, order,
judgment, decree or other restriction of any court, governmental authority
or stock market to which the Company or the Common Stock is subject, except
where the failure to do so would not reasonably be expected to have a
material adverse effect on the Company or the transaction contemplated
hereby. There are no notices to or approvals or consents required to be made
by the Company of the NASD, any stock market, the Commission or any other
Person that have not been made and obtained (and any so obtained are in full
force and effect), except where the failure to do so would not reasonably be
expected to have a material adverse effect on the Company or the transaction
contemplated hereby.
(d) Issuance of the Shares. The Shares are duly authorized and,
----------------------
when issued and paid for in accordance with the terms hereof, will be
legally issued, fully paid and nonassessable, free and clear of all liens
and encumbrances. The Shares have been approved for issuance on and by the
Nasdaq SmallCap Market (subject to official notice of issuance).
(e) Company Registration Statement. The Company Registration
------------------------------
Statement is effective and the Company has not received notice that the
Commission has issued or intends to issue a stop order with respect to the
Company Registration Statement or that the Commission otherwise has
suspended or withdrawn the effectiveness of the Company Registration
Statement, either temporarily or permanently, or intends or has threatened
in writing to do so. The Company Registration Statement (including the
information or documents incorporated by reference therein and all
supplements, including the Supplement, and prospectus thereunder), at the
time it was first declared effective, on the date of this Agreement, and on
each Settlement Date, did not, do not and will not contain any untrue
statement of material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Shares are
registered under the Securities Act by the Company Registration Statement.
(f) Listing and Maintenance Requirements. None of the offer, sale
------------------------------------
or issuance to the Purchaser of the maximum number of Shares issuable under
this Agreement require any approval of the shareholders of the Company and
do not violate the rules of the Nasdaq Stock Market.
(g) Certain Fees. Except with respect to certain arrangements
------------
between the Company and X.X. Xxxxx Securities Inc. with respect to the
transactions contemplated by this Agreement, no fees or commissions will be
payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by this Agreement. The Purchaser
will have no
6
obligation with respect to any fees incurred by the Company or any other
Person 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 this Agreement. The Company
will indemnify and hold harmless the Purchaser, its employees, officers,
directors, agents, partners, and affiliates, from and against all claims,
losses, damages, costs (including the costs of preparation and reasonable
attorney's fees) and expenses suffered in respect of any such claimed or
existing fees incurred by the Company or any other Person, as such fees and
expenses are incurred.
(h) Disclosure. Neither the Company nor any other Person acting on
----------
its behalf has provided the Purchaser or its agents or counsel with any
information that constitutes or may, in the Company's opinion, constitute
material non-public information.
(i) SEC Reports; Financial Statements. Except with respect to the
---------------------------------
Company's Quarterly Report on Form 10-Q for the quarterly period ended March
30, 2002 which was not timely filed, the Company has filed all reports
required to be filed by it under the Exchange Act, for the twelve months
preceding the date hereof (collectively, "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 and the rules and
regulations of the Commission promulgated thereunder, 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 light of the circumstances under
which they were made, not misleading. 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 generally
accepted accounting principles applied on a consistent basis during the
periods involved, except as may be otherwise specified in such financial
statements or the notes thereto, 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 year-end audit adjustments.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
-----------------------------------------------
hereby represents and warrants to the Company as follows:
(a) Organization; Authorization. The Purchaser is a corporation
---------------------------
duly incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation with the requisite corporate power and
authority to own and use its properties and assets and to carry on its
business as currently conducted, except where the failure to do so would not
reasonably be expected to have a material adverse effect on the Purchaser or
the transactions contemplated hereby. The Purchaser 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 do so would not reasonably be expected to have a material adverse
effect on the Purchaser or the transaction contemplated hereby. The
Purchaser has the requisite power and
7
authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations thereunder. The
execution and delivery of this Agreement by the Purchaser and the
consummation by it of the transaction contemplated hereby have been duly
authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly executed by the Purchaser and, when delivered in
accordance with the terms hereof, and assuming the valid execution hereof by
the Company, will constitute the valid and binding obligation of the
Purchaser enforceable against it in accordance with its terms, except (a) as
such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally, (b) as enforceability
of any indemnification and contribution provisions may be limited under the
federal and state securities laws and public policy, and (c) that the remedy
of specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(b) Other Agreements; Status of Purchaser. The Purchaser is not
-------------------------------------
party to any agreement or arrangement with respect to a disposition of
Shares other than this Agreement. The Purchaser is an accredited investor as
defined in Rule 501 of the Securities Act and is not registered as a
broker-dealer under the Exchange Act.
(c) Financial Capacity. The Purchaser has financial capacity to
------------------
satisfy its obligations under this Agreement.
5. CERTAIN DISCLOSURES. The Company will not and will cause each of
-------------------
its affiliates and other Persons acting on behalf of the Company not to
divulge to the Purchaser any information that it believes to be material
non-public information unless the Purchaser has agreed in writing to receive
such information prior to such divulgence. Neither the Company nor the
Purchaser will issue any press release or make any other public announcement
relating to this Agreement unless the form thereof is mutually agreed to by
the Company and the Purchaser, or if the Company is advised in writing by
its counsel that such press release or public announcement is required by
law. Except with respect to the press release to be issued pursuant to
Section 2(d), and other than with respect to: (i) the filing of the
Supplement, and (ii) the filing of a Current Report on Form 8-K to furnish
an opinion of counsel as to the legality of the Shares, the Company shall
not publicly disclose the name of the Purchaser, or include the name of the
Purchaser in any filing with the Commission or any regulatory agency or
trading market, without the prior written consent of the Purchaser, except
to the extent such disclosure is required by law or trading market
regulations, in which case the Company shall provide the Purchaser with
prior notice of such disclosure.
6. INDEMNIFICATION. The Company will indemnify the Purchaser as
---------------
provided in Exhibit "A" attached hereto against liability with respect to
the Company Registration Statement (including, without limitation, the
prospectus supplement) relating to the Shares sold by the Company to the
Purchaser hereunder. For purposes of said Exhibit B, capitalized terms used
therein without definition shall have the same meanings therein as are
ascribed to said terms in this Agreement.
8
7. MISCELLANEOUS.
-------------
(a) Fees and Expenses. Each party will 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 will pay
all stamp and other taxes and duties levied in connection with the sale of
the Shares.
(b) Entire Agreement; Amendments. This Agreement contains the
----------------------------
entire understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral or
written, with respect to such matters, which the parties acknowledge have
been merged into this Agreement. This Agreement may not be modified or
amended except in a writing for such purpose signed by the Company and the
Purchaser. The waiver by either party hereto of any right hereunder or the
failure to perform or of a breach by the other party will not be deemed a
waiver of any other right hereunder or of any other breach or failure by
said other party whether of a similar nature or otherwise.
(c) Notices. Any and all notices or other communications or
-------
deliveries required or permitted to be provided hereunder must be in writing
and will be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile or
email, (ii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iii) upon actual
receipt by the party to whom such notice is required to be given. The
address for such notices and communications will be as follows (or such
other address as may be designated in writing hereafter, in the same manner,
by such Person):
If to the Company: Applied Digital Solutions, Inc.
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
Holland & Knight
000 Xxxxxxxx Xxx.
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to the Purchaser: To the address set forth under the Purchaser's
name on the signature page hereto.
(d) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement will be governed
by and construed and enforced in accordance with the internal laws of the
State of New York, without regard to the principles of conflict of laws
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement
9
(whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, employees or agents) will be exclusively
commenced in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each party irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New
York, Borough of Manhattan for the adjudication of any dispute hereunder,
and 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 or that such courts are an improper or inconvenient forum.
Each party hereto 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 will
constitute good and sufficient service of process and notice thereof.
Nothing contained herein will be deemed to limit in any way any right to
serve process in any manner permitted by law. Each party irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. If either party shall
commence an action or proceeding to enforce any provisions of this
Agreement, then the prevailing party in such action or proceeding will be
reimbursed by the other party for its reasonable attorneys fees and other
reasonable costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
(e) 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 each be entitled to specific performance of
the others obligations under this Agreement. In furtherance thereof, the
parties agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any such breach and hereby agrees to waive in any
action for specific performance of any such obligation the defense that a
remedy at law would be adequate.
(f) Execution. This Agreement may be executed in two 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.
(g) Assignment. Neither party shall assign this Agreement without
----------
the prior written consent of the other party hereto.
* * * * * * * * *
10
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Purchase Agreement to be duly executed as of the date first indicated above.
APPLIED DIGITAL SOLUTIONS, INC.
By:
-------------------------------------
Name:
Title:
MAGELLAN INTERNATIONAL LTD.
By:
-------------------------------------
Name: Xxxx Xxxxx Xxxx
Title: Authorized Signatory
Address for Notice:
Charlotte House
Charlotte Street
Nassau, Bahamas
X.X. Xxx X0000
Facsimile No.: (000) 000-0000
Attn:
With a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000 and (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
DWAC instructions for delivery of shares:
DWAC 5029
F/O Magellan International LTD.
2132FF0
11
EXHIBIT `A'
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and
------------------------------
hold harmless the Purchaser and the officers, directors, employees and
agents of the Purchaser, and each person, if any, who controls the Purchaser
within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Securities Exchange Act, as amended (the "EXCHANGE ACT"), from and
against any losses, claims, damages, liabilities, costs and expenses
(including, without limitation, reasonable costs of defense and
investigation and all attorneys' fees and expenses) to which the Purchaser
and the officers, directors, employees and agents of the Purchaser, and each
person, if any, who controls the Purchaser may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or are
based upon: (i) any untrue statement or alleged untrue statement of a
material fact contained, or incorporated by reference, in the Company
Registration Statement or any amendment or supplement to the Registration
Statement, or (ii) the omission or alleged omission to state in that
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein not misleading (an "INDEMNIFIABLE
MATTER"). The Company will reimburse the Purchaser and the officers,
directors, employees and agents of the Purchaser and each such controlling
person promptly upon demand for any legal or other costs or expenses
reasonably incurred by the Purchaser and the officers, directors, employees
and agents of the Purchaser or the controlling person in investigating,
defending against, or preparing to defend against any claim relating to an
Indemnifiable Matter, except that the Company will not be liable to the
extent such claim, suit or proceeding which results in a loss, claim,
damage, liability or expense arises out of, or is based upon, an untrue
statement, alleged untrue statement, omission or alleged omission, included
in the Supplement in reliance upon, and in conformity with, written
information furnished by the Purchaser to the Company for inclusion in the
Supplement.
(b) CONTRIBUTION. If for any reason the indemnification provided
------------
for in this Agreement is not available to, or is not sufficient to hold
harmless, an indemnified party in respect of any loss, claim, damage,
liability, cost or expense referred to in Paragraph (a), each indemnifying
party will, in lieu of indemnifying the indemnified party, contribute to the
amount paid or payable by the indemnified party, contribute to the amount
paid or payable by the indemnified party as a result of the loss, claim,
damage, liability, cost or expense: (i) in the proportion which is
appropriate to reflect the relative benefits received by the indemnifying
party, on the one hand, and by the indemnified party, on the other hand,
from the sale of stock which is the subject of the claim, action, suit or
proceeding which resulted in the loss, claim, liability, cost or expense or
(ii) if that allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits of
the sale of stock, but also the relative fault of the indemnifying party and
the indemnified party with respect to the statements or omissions which are
the subject of the claim, action, suit or proceeding that resulted in the
loss, claim, damage, liability, cost or expense as well as any other
relevant equitable considerations.
12
