Exhibit 10.9
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT is dated as of the 29th
day of June, 2001 by and between Xxxx Systems, Inc., a Delaware corporation
("Company"), and Xxxxxxxx X. Xxxxxxxx, III ("Purchaser").
WHEREAS, the Company desires to issue and sell to the Purchaser an
aggregate of up to 500,000 shares (the "Shares") of the authorized but
unissued shares of the Company's 7.5% Series A Convertible Preferred Stock
(the "Preferred Stock"); the Shares of Preferred Stock shall have the
respective rights, preferences and privileges set forth in the Certificate
of Determination of Rights, Preferences and Privileges of Series A
Convertible Preferred Stock of the Company (the "Certificate of
Determination") attached hereto as Exhibit A; and
WHEREAS, the Purchaser wishes to purchase the Shares on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
o "Affiliate" of a party means any corporation or other business entity
controlled by, controlling or under common control with such party. For
this purpose "control" shall mean direct or indirect beneficial
ownership of fifty percent (50%) or more of the voting or income
interest in such corporation or other business entity.
o "Closing Date" means the date of the Closing.
o "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and all of the rules and regulations promulgated thereunder.
o "Registration Rights Agreement" shall mean that certain Registration
Rights Agreement, dated as of the date hereof, among the Company and
the Purchaser.
o "SEC" shall mean the Securities and Exchange Commission.
o "Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
2. Purchase and Sale of Shares.
o Purchase and Sale. Subject to and upon the terms and conditions set
forth in this Agreement, the Company agrees to issue and sell to
Purchaser, and Purchaser hereby agrees to purchase from the Company, at
the Closing 500,000 Shares of Preferred Stock at a purchase price of
$4.00 per Share. The aggregate purchase price payable by the Purchaser
to the Company for all of the Shares shall be $2,000,000.00.
o Closing. The closing of the transactions contemplated under this
Agreement (the "Closing") shall take place at the offices of the
Company at 11:AM on June 29th the business day after the Company shall
have given written notice (the "Closing Notice") to the Purchaser that
all of the conditions precedent set forth in Section 5.1 have been (or
will have been) satisfied in full or at such other location, date and
time as may be agreed upon between the Purchaser and the Company. At
the Closing, the Company shall deliver to Purchaser a single stock
certificate, registered in the name of Purchaser, representing the
number of shares of Preferred Stock purchased by Purchaser, against
payment of the purchase price
therefor by wire transfer of immediately available funds to such
account or accounts as the Company shall designate in writing.
3. Representations and Warranties of the Company. Except as set forth in
the SEC documents filed prior to the date hereto (as defined below) and
the Schedules attached hereto, the Company hereby represents and
warrants to Purchaser as follows:
o Incorporation. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect upon the Company. The Company has all requisite
corporate power and authority to carry on its business as now
conducted.
o Capitalization. As of June 27, 2001, the authorized capital stock of
the Company consists of (i) 35,000,000 shares of Common Stock, of which
2,565,989 shares are outstanding and (ii) 5,000,000 shares of Preferred
stock, of which no shares are outstanding on the date hereof. Other
than as disclosed in the SEC documents previously delivered to
Purchaser and the Warrant to be issued to Xxxxxxx Xxxxxxx, there are no
existing options, warrants, calls, preemptive (or similar) rights,
subscriptions or other rights, agreements, arrangements or commitments
of any character obligating the Company to issue, transfer or sell, or
cause to be issued, transferred or sold, any shares of the capital
stock of the Company or other equity interests in the Company or any
securities convertible into or exchangeable for such shares of capital
stock or other equity interests, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of its capital stock or other equity
interests.
o Authorization. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization,
execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and
delivered by the Company, each of this Agreement and the Registration
Rights Agreement shall constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the
Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement, and the Registration
Rights Agreement.
o Valid Issuance of the Shares. The Shares being purchased by the
Purchaser hereunder will, upon issuance pursuant to the terms hereof,
be duly authorized and validly issued, fully paid and nonassessable.
o Financial Statements. The Company has made available to Purchaser its
audited Statements of Income, Stockholders' Equity and Cash Flows for
the fiscal year ended June 30, 2000, its audited Balance Sheet as of
June 30, 2000, its unaudited Statements of Income, Stockholders' Equity
and Cash Flows for the nine-month period ended March 31, 2001, and its
unaudited Balance Sheet as of March 31, 2001. All such financial
statements are hereinafter referred to collectively as the "Financial
Statements". The Financial Statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis during the periods involved, and fairly present, in all material
respects, the financial position of the Company and the results of its
operations as of the date and for the periods indicated thereon, except
that the unaudited financial statements may not be in accordance with
generally accepted accounting principles because of the absence of
footnotes normally contained therein and are subject to normal year-end
audit adjustments which, individually, and in the aggregate, will not
be material. Since March 31, 2001, to the Company's knowledge, there
has been no material adverse change (actual or threatened) in the
assets, liabilities (contingent or other), affairs, operations,
prospects or condition (financial or other) of the Company.
o SEC Documents. The Company has made available to Purchaser, a true and
complete copy of the Company's Annual Report on Form 10-K for the year
ended June 30, 2000, the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001, and any other statement, report,
registration statement (other than registration statements on Form S-8)
or definitive proxy statement filed by the Company with the SEC during
the period commencing March 31, 2001 and ending on the date hereof. The
Company will, promptly upon the filing thereof, also make available to
Purchaser all statements, reports (including, without limitation,
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K),
registration statements and definitive proxy statements filed by the
Company with the SEC during the period commencing on the date hereof
and ending on the Closing Date (all such materials required to be
furnished to Purchaser pursuant to this sentence or pursuant to the
next preceding sentence of this Section 3.6 being called, collectively,
the "SEC Documents"). As of their respective filing dates, the SEC
Documents complied or will comply in all material respects with the
requirements of the Exchange Act or the Securities Act, as applicable,
and none of the SEC Documents contained or will contain any untrue
statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under
which they were made, not misleading, as of their respective filing
dates, except to the extent corrected by a subsequently filed SEC
Document.
o Consents. All consents, approvals, orders and authorizations required
on the part of the Company in connection with the execution, delivery
or performance of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated herein and
therein have been obtained and will be effective as of the Closing
Date.
o No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby will not conflict with
or result in any material violation of or material default (with or
without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation or
to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or By-laws of the Company or (ii) any
agreement or instrument, permit, franchise, license, judgment, order,
statute, law, ordinance, rule or regulations, applicable to the Company
or its respective properties or assets.
o Brokers or Finders. Except for certain fees payable by the Company to
Xxxxxxx Xxxxxxx, the Company has not incurred, and shall not incur,
directly or indirectly, any liability for any brokerage or finders'
fees or agents commissions or any similar charges in connection with
this Agreement or any transaction contemplated hereby.
o Nasdaq National Market. The Company's Common Stock is listed on the
Nasdaq National Market System, and there are no proceedings to revoke
or suspend such listing.
o Absence of Litigation. There is no action, suit or proceeding or, to
the Company's knowledge, any investigation, pending, or to the
Company's knowledge, threatened by or before any governmental body
against the Company and in which an unfavorable outcome, ruling or
finding in any said matter, or for all matters taken as a whole, might
have a material adverse effect on the Company. The foregoing includes,
without limitation, any such action, suit, proceeding or investigation
that questions this Agreement or the Registration Rights Agreement or
the right of the Company to execute, deliver and perform under same.
4. Representations and Warranties of the Purchaser. Purchaser represents
and warrants to the Company as follows:
o Authorization. All action on the part of Purchaser and, if applicable,
its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement
and the Registration Rights Agreement and the consummation of the
transactions contemplated herein and therein has been taken. When
executed and delivered, each of this Agreement and the Registration
Rights Agreement will constitute the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance
with its terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. Purchaser has all
requisite corporate power to enter into each of this Agreement and the
Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement and the Registration
Rights Agreement.
o Purchase Entirely for Own Account. Purchaser is acquiring the Shares
being purchased by it hereunder for investment, for its own account,
and not for resale or with a view to distribution thereof in violation
of the Securities Act.
o Investor Status; Etc. Purchaser certifies and represents to the Company
that at the time Purchaser acquires any of the Shares, Purchaser will
be an "Accredited Investor" as defined in Rule 501 of Regulation D
promulgated under the Securities Act and was not organized for the
purpose of acquiring the Shares. Purchaser's financial condition is
such that it is able to bear the risk of holding the Shares for an
indefinite period of time and the risk of loss of its entire
investment. Purchaser has been afforded the opportunity to ask
questions of and receive answers from the management of the Company
concerning this investment and has sufficient knowledge and experience
in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks
and merits of its investment in the Company.
o Shares Not Registered. Purchaser understands that the Shares have not
been registered under the Securities Act, by reason of their issuance
by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue
to be held by Purchaser unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such
registration. The Purchaser understands that the exemptions from
registration afforded by Rule 144 (the provisions of which are known to
it) promulgated under the Securities Act depend on the satisfaction of
various conditions, and that, if applicable, Rule 144 may afford the
basis for sales only in limited amounts.
o No Conflict. The execution and delivery of this Agreement and the
Registration Rights Agreement by Purchaser and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by Purchaser (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to a
loss of a material benefit under (i) any provision of the
organizational documents of Purchaser or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to Purchaser or its
respective properties or assets.
o Brokers. Purchaser has not retained, utilized or been represented by
any broker or finder in connection with the transactions contemplated
by this Agreement.
o Consents. All consents, approvals, orders and authorizations required
on the part of Purchaser in connection with the execution, delivery or
performance of this Agreement and the consummation of the transactions
contemplated herein have been obtained and are effective as of the
Closing Date.
5. Conditions Precedent. Conditions to the Obligation of the Purchaser to
Consummate the Closing. The obligation of Purchaser to consummate the
Closing and to purchase and pay for the Shares being purchased by it
pursuant to this Agreement is subject to the satisfaction of the
following conditions precedent:
o The representations and warranties contained herein of the Company
shall be true and correct on and as of the Closing Date in all
material respects with the same force and effect as though made on
and as of the Closing Date.
o The Registration Rights Agreement shall have been executed and
delivered by the Company. o The Company shall not have been adversely
affected in any material way prior to the Closing Date; and the
Company shall have performed all obligations and conditions herein
required to be performed or observed by the Company on or prior to
the Closing Date.
o No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any
court, arbitrator or governmental body, agency or official and shall
be pending.
o The purchase of and payment for the Shares by the Purchaser shall not
be prohibited by any law or governmental order or regulation. All
necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with,
any governmental or administrative agency or of any other person with
respect to any of the transactions contemplated hereby shall have
been duly obtained or made and shall be in full force and effect.
o All instruments and corporate proceedings in connection with the
transactions specifically contemplated by this Agreement to be
consummated at the Closing shall be satisfactory in form and
substance to Purchaser, and Purchaser shall have received copies
(executed or certified, as may be appropriate) of all documents which
Purchaser may have reasonably requested in connection with such
transactions.
o The Certificate of Determination shall have been duly filed with the
Office of the Secretary of State of the State of Delaware.
o Conditions to the Obligation of the Company to Consummate the
Closing. The obligation of the Company to consummate the Closing and
to issue and sell to Purchaser the Shares to be purchased by it at
the Closing is subject to the satisfaction of the following
conditions precedent:
o The representations and warranties contained herein of Purchaser
shall be true and correct on and as of the Closing Date in all
material respects with the same force and effect as though made on
and as of the Closing Date.
o The Registration Rights Agreement shall have been executed and
delivered by Purchaser.
o The Purchaser shall have performed all obligations and conditions
herein required to be performed or observed by the Purchaser on or
prior to the Closing Date.
o No proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any
court, arbitrator or governmental body, agency or official and shall
be pending.
o The sale of the Shares by the Company shall not be prohibited by any
law or governmental order or regulation. All necessary consents,
approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or
administrative agency or of any other person with respect to any of
the transactions contemplated hereby shall have been duly obtained or
made and shall be in full force and effect.
o Purchaser shall have executed and delivered to the Company a
Purchaser's Questionnaire, in form and substance reasonably
satisfactory to the Company and its legal counsel.
o Purchaser shall have paid the purchase price set forth in Section 2.1
and shall have purchased, in accordance with this Agreement, 500,000
Shares of Preferred Stock.
o All instruments and corporate proceedings in connection with the
transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company,
and the Company shall have received counterpart originals, or
certified or other copies of all documents, including without
limitation records of corporate or other proceedings, which it may
have reasonably requested in connection therewith.
6. Transfer, Legends.
o Securities Law Transfer Restrictions. Purchaser shall not sell, assign,
pledge, transfer or otherwise dispose or encumber any of the Shares
being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an
available exemption from registration under the Securities Act and
applicable state securities laws and, if requested by the Company, upon
delivery by Purchaser of an opinion of counsel reasonably satisfactory
to the Company to the effect that the proposed transfer is exempt from
registration under the Securities Act and applicable state securities
laws. Any transfer or purported transfer of the Shares in violation of
this Section 6.1 shall be voidable by the Company. The Company shall
not register any transfer of the Shares in violation of this Section
6.1. The Company may, and may instruct any transfer agent for the
Company, to place such stop transfer orders as may be required on the
transfer books of the Company in order to ensure compliance with the
provisions of this Section 6.1. Notwithstanding the foregoing,
Purchaser may pledge the Shares to a financial institution for the
purpose of securing credit or to meet qualification standards as
required for certain transactions and Purchaser may transfer the Shares
to a wholly owned limited liability company or similar entity as well
as all agreements related to the Shares, provided such entity assumes
the agreements.
o Legends. Each certificate requesting any of the Shares shall be
endorsed with the legends set forth below, and Purchaser covenants
that, except to the extent such restrictions are waived in writing by
the Company, it shall not transfer the shares represented by any such
certificate without complying with the restrictions on transfer
described in this Agreement and the legends endorsed on such
certificate:
o "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM REGISTRATION UNDER SAID ACT AND, UPON DELIVERY
OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
THE PROPOSED TRANSFER IS EXEMPT FROM SAID ACT."
o "THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH
(18) OF CODE SECTION 10-5-9 OF THE 'GEORGIA SECURITIES ACT OF 1973,'
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS
EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER
SUCH ACT."
7. Termination; Liabilities Consequent Thereon. This Agreement may be
terminated and the transactions contemplated hereunder abandoned at any
time prior to the Closing only as follows:
o by the Purchaser, upon notice to the Company if the conditions set
forth in Section 5.1 shall not have been satisfied on or prior to July
31, 2001; or
o by the Company, upon notice to the Purchaser if the conditions set
forth in Section 5.2 shall not have been satisfied on or prior to July
31, 2001; or
o at any time by mutual agreement of the Company and the Purchaser; or
o by the Purchaser, if there has been any material breach of any
representation or warranty or any material breach of any covenant of
the Company contained herein and the same has not been cured within 15
days after notice thereof (it being understood and agreed by Purchaser
that, in the case of any representation or warranty of the Company
contained herein which is hereinabove qualified by application thereto
of a materiality standard, such representation or warranty will be
deemed to have been breached for purposes of this Section 7.1(d) if
such representation or warranty was not true and correct in all
respects at the time such representation or warranty was made by the
Company); or
o by the Company, if there has been any material breach of any
representation, warranty or any material breach of any covenant of
Purchaser contained herein and the same has not been cured within 15
days after notice thereof (it being understood and agreed by the
Company that, in the case of any representation and warranty of the
Purchaser contained herein which is hereinabove qualified by
application thereto of a materiality standard, such representation or
warranty will be deemed to have been breached for purposes of this
Section 7.1(e) if such representation or warranty was not true and
correct in all respects at the time such representation or warranty was
made by Purchaser).
Any termination pursuant to this Section 7 shall be without
liability on the part of any party, unless such termination is the
result of a material breach of this Agreement by a party to this
Agreement in which case such breaching party shall remain liable for
such breach notwithstanding any termination of this Agreement.
8. Miscellaneous Provisions.
o Public Statements or Releases. Nothing shall prevent any of the parties
hereto from making such public announcements as it may consider
necessary in order to satisfy its legal obligations, but to the extent
not inconsistent with such obligations, it shall provide the other
parties with an opportunity to review and comment on any proposed
public announcement before it is made.
o Further Assurances. Each party agrees to cooperate fully with the other
party and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably
requested by the other party to better evidence and reflect the
transactions described herein and contemplated hereby, and to carry
into effect the intents and purposes of this Agreement.
o Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties
may have at law or in equity in the event of the breach of any of the
terms of this Agreement. The exercise of any right, power or remedy
shall neither constitute the exclusive election thereof nor the waiver
of any other right, power or remedy available to such party.
o Pronouns. All pronouns or any variation thereof shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
o Notices.
o Any notices, reports or other correspondence (hereinafter collectively
referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or
telecopy or delivered by hand to the party to whom such correspondence
is required or permitted to be given hereunder. Any notice or other
communication delivered by hand or mailed shall be deemed to have been
delivered on the date on which such notice or communication is
delivered by hand, or in the case of certified mail deposited with the
appropriate postal authorities on the date when such notice or
communication is actually received, and in any other case shall be
deemed to have been delivered on the date on which such notice or
communication is actually received.
o All correspondence to the Company shall be addressed as follows:
Xxxx Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Executive Vice President
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopier: (000) 000-0000
o All correspondence to any Purchaser shall be sent to Purchaser at the
address set forth for Purchaser in the signature page of this
Agreement.
o Any entity may change the address to which correspondence to it is to
be addressed by notification as provided for herein.
o Captions. The captions and paragraph headings of this Agreement are
solely for the convenience of reference and shall not affect its
interpretation.
o Severability. Should any part or provision of this Agreement be held
unenforceable or in conflict with the applicable laws or regulations of
any jurisdiction, the invalid or unenforceable part or provisions shall
be replaced with a provision which accomplishes, to the extent
possible, the original business purpose of such part or provision in a
valid and enforceable manner, and the remainder of this Agreement shall
remain binding upon the parties hereto.
o Governing Law; Injunctive Relief.
o This Agreement shall be governed by and construed in accordance with
the internal and substantive laws of Delaware and without regard to any
conflicts of laws concepts which would apply the substantive law of
some other jurisdiction.
o Each of the parties hereto acknowledges and agrees that damages will
not be an adequate remedy for any material breach or violation of this
Agreement if such material breach or violation would cause immediate
and irreparable harm (an "Irreparable Breach"). Accordingly, in the
event of a threatened or ongoing Irreparable Breach, each party hereto
shall be entitled to seek, in any state or federal court in the State
of Georgia, equitable relief of a kind appropriate in light of the
nature of the ongoing or threatened Irreparable Breach, which relief
may include, without limitation, specific performance or injunctive
relief; provided, however, that if the - party bringing such action is
unsuccessful in obtaining the relief sought, the moving party shall pay
the non-moving party's reasonable costs, including attorney's fees,
incurred in connection with defending such action. Such remedies shall
not be the parties' exclusive remedies, but shall be in addition to all
other remedies provided in this Agreement.
o Amendments. No provision of this agreement may be waived, changed or
modified, or the discharge thereof acknowledged orally, but only by an
agreement in writing signed by the party against which the enforcement
of any waiver, change, modification or discharge is sought.
o Expenses. Each party will bear its own costs and expenses in connection
with this Agreement.
o Assignment. The rights and obligations of the parties hereto shall
inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of each party. Neither party may
assign its rights or obligations under this Agreement or designate
another person (i) to perform all or part of its obligations under this
Agreement or (ii) to have all or part of its rights and benefits under
this Agreement, in each case without the prior written consent of the
other party. In the event of any assignment in accordance with the
terms of this Agreement, the assignee shall specifically assume and be
bound by the provisions of the Agreement by executing and agreeing to
an assumption agreement reasonably acceptable to the other party.
o Notwithstanding anything set forth herein, the Company may assign all
of its rights and obligations under this Agreement in connection with a
merger or similar reorganization or the sale of all or substantially
all of its assets. This Agreement shall survive any such merger or
reorganization of either party with or into, or such sale of assets to,
another party and no consent for such merger, reorganization or sale
shall be required hereunder.
o Survival. The respective representations and warranties given by the
parties hereto, and the other covenants and agreements contained
herein, shall survive the Closing Date and the consummation of the
transactions contemplated herein for a period of one year, without
regard to any investigation made by any party.
o Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings,
representations and statements respecting the subject matter hereof,
whether written or oral. No modification, alteration, waiver or change
in any of the terms of this Agreement shall be valid or binding upon
the parties hereto unless made in writing and duly executed by the
Company and the Purchaser.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
COMPANY:
Xxxx Systems, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
PURCHASER:
Xxxxxxxx X. Xxxxxxxx, III
/s/ Xxxxxxxx X. Xxxxxxxx, III
-----------------------------------
Exhibit A
Certificate of Designations of Rights, Preferences and Privileges of Series A
Convertible Preferred Stock of the Company
