NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated this
16th of June, 2010 (this “Agreement”), is entered into by and between TIGA
ENERGY SERVICES, INC. a Texas corporation (the “Company”), and Xxxxx Xxxx (the
“Investor”).
RECITALS
WHEREAS, the Investor desires to
purchase from the Company, and the Company desires to issue and sell to the
Investor, a convertible promissory note in the aggregate principal amount of Two
Hundred Fifty Thousand dollars ($250,000.00), in the form attached hereto as
Exhibit A (the “Note”);
and
WHEREAS, the Company and the Investor
are executing and delivering this Agreement in reliance upon the exemption from
securities registration afforded by Section 4(2) of the United States Securities
Act of 1933, as amended (the “Securities Act”), and
Regulation D, as promulgated by the United States Securities and Exchange
Commission (the “SEC”)
under the Securities Act; and
WHEREAS, the Company has authorized the
issuance of the Note and the shares of the Company’s common stock, no par value
per share (the “Common
Stock”), issuable upon conversion of the Note (the “Conversion Shares” and
together with the Note, the “Securities”); and
WHEREAS, the Investor wishes to
purchase, and the Company wishes to sell, upon the terms and conditions stated
in this Agreement, the Note.
AGREEMENT
NOW, THEREFORE, in consideration for
the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as
follows:
ARTICLE
1
PURCHASE
AND SALE OF NOTE
1.1. Notes. Subject to the terms
and conditions hereof, the Company hereby issues and sells to the Investor, and
the Investor hereby purchases from the Company, the Note.
1.2. Purchase Price. The aggregate
purchase price for the Note to be purchased by the Investor is $250,000.00
(“Purchase
Price”).
1.3. Payment of Purchase
Price. Promptly after the execution of this Agreement, the
Investor will initiate a wire transfer in the amount of the Purchase Price to
the account coordinates provided by the Company to the Investor.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and warrants to
the Investor as follows:
2.1. Organization. Good Standing
and Qualification. The Company has been duly incorporated and organized, and is
validly existing and in good standing, under the laws of the State of
Texas. The Company has all requisite corporate power and authority to
execute, deliver, and perform its obligations under this Agreement, the
Notes and the Warrants (this Agreement and the Notes are referred to
collectively in this Agreement as the “Transaction Documents”), and any other
agreements contemplated by Transaction Documents, to own and operate its
properties and assets, and to carry on its business as currently conducted and
as presently proposed to be conducted. The Company is presently
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the failure to be so qualified could reasonably be
expected to have a material adverse effect on the assets, liabilities, condition
(financial or other), business or results of operations of the Company (a “Material Adverse
Effect”).
2.2. Capitalization. As of the date
hereof, the authorized capital stock of the Company consists of 10,000,000
shares of Common Stock, of which 4,114,000 are outstanding as of the date
hereof. All of the shares of Common Stock have been duly authorized,
are fully paid and non-assessable and have been issued in accordance with all
applicable federal and state securities laws. Except as set forth on
Schedule 2.2 hereto or as otherwise contemplated by this Agreement, there are no
outstanding options, warrants or other equity securities that are convertible
into, exercisable for, or that grant any person a right to acquire any, shares
of the Company’s capital stock.
2.3. Subsidiaries. The Company has
no subsidiaries and does not own or control, directly or indirectly, any
interest in any other corporation, partnership, limited liability company,
trust, joint venture, association, or other entity. The Company is
not a participant in any joint venture, partnership, or similar
arrangement.
2.4. Authorization; Enforcement;
Validity. The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and the
Note (collectively, the “Transaction Documents”) and to issue the Notes and the
Conversion Shares in accordance with the terms hereof and
thereof. The execution and delivery of the Transaction Documents by
the Company and the consummation by the Company of the transactions contemplated
hereby and thereby, including the issuance of the Conversion Shares, have been
duly authorized by the Company’s Board of Directors and (other than (i) the
filing of a Form D with respect to the issuance of the Notes as required under
Regulation D and (ii) such filings required under applicable securities or “Blue
Sky” laws of the states of the United States (all of the foregoing, the “Required Approvals”)) no
further filing, consent, or authorization is required by the Company, its Board
of Directors or its shareholders in connection therewith. The
Transaction Documents have been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of applicable creditors’ rights and
remedies.
2.5. Valid Issuance of
Securities. The Note has been validly issued, and, in the case
of the Conversion Shares upon issuance in accordance with the terms of the Note
will be, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issuance (but not the acquisition, holding or
disposition) thereof. The offering, issuance, sale and delivery of
the Note as contemplated by this Agreement is exempt from the registration and
prospectus delivery requirements of the Securities Act, are being made in
compliance with all applicable federal and (except for any violation or
non-compliance that could not reasonably be expected to have a Material Adverse
Effect) state laws and regulations concerning the offer, issuance and sale of
securities, and are not being issued in violation of any preemptive or other
rights of any stockholder of the Company. The parties hereto agree
and acknowledge that, in making the representations and warranties in the
foregoing sentence of this Section 2.5, the Company is relying on the
representations and warranties made by the Investor in Section 3.
2.6. Governmental Consents. Other
than the Required Approvals, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court,
governmental agency or any regulatory or self-regulatory agency or any other
Person in order for it to execute, deliver or perform any of its obligations
under or contemplated by this Agreement in accordance with the terms
hereof. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain prior to the Closing will
have been obtained or effected on or prior to the date hereof or within the time
prescribed by law, and the Company is unaware of any facts or circumstances
which might prevent the Company from obtaining or effecting any of the
registration, application or filings pursuant to the preceding
sentence.
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2.7. No Violation. The execution
and delivery of the Transaction Documents and the performance by the Company of
the transactions contemplated hereby and thereby will not (i) conflict with or
result in a breach of any provision of the articles of incorporation or by-laws
of the Company, (ii) result in a default or breach of, or require any consent,
approval, authorization or permit of, or filing or notification to, any person,
company or entity under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, loan, factoring arrangement, license, agreement,
lease or other instrument or obligation to which the Company is a party or by
which the Company or any of its assets may be bound or (iii) violate any law,
judgment, order, writ, injunction, decree, statute, rule or regulation of any
court, administrative agency, bureau, board, commission, office, authority,
department or other governmental entity applicable to the Company, that could
not reasonably be expected to have a Material Adverse Effect or materially
impair the transactions contemplated hereby.
2.8. Certain Proceedings. There is
no action, suit, inquiry, proceeding or investigation pending or threatened in
writing before or by any court, arbitrator, governmental or administrative
agency, regulatory authority (federal, state, county, local or foreign), that
(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, individually or in the aggregate, have or reasonably be
expected to result in a Material Adverse Effect.
2.9. No General Solicitation; No Directed
Selling Efforts. Neither the Company nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D, in connection with the offer or sale of the Note or any securities
substantially similar to the Note (“Similar
Securities”). The Company has not engaged any placement agent
or other agent in connection with the sale of the Note and is not responsible
for the payment of any fees in connection with the sale and issuance of the
Note.
2.10. No Integrated
Offering. None of the Company or any of its affiliates, or any
person acting on its behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of the Note or any Similar
Securities under the Securities Act or cause this offering of the Note or any
Similar Securities to be integrated with prior offerings by the Company for
purposes of the Securities Act. None of the Company or its affiliates
or any person acting on its behalf will take any action or steps referred to in
the preceding sentence that would require registration of the Note or any
Similar Securities under the Securities Act or cause the offering of the Note or
any Similar Securities to be integrated with other offerings.
ARTICLE
3
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR
The Investor represents, warrants and
covenants to the Company as follows:
3.1
Authorization. The Investor has full power and authority to enter into
the Transaction Documents and each such Transaction Agreement constitutes the
Investor’s valid and legally binding obligation, enforceable in accordance with
its terms except (a) as may be limited by applicable bankruptcy, insolvency,
reorganization, or other laws of general application relating to or affecting
the enforcement of creditors’ rights generally, and (b) as may be limited by the
effect of rules of law governing the availability of equitable
remedies.
3.2,
Acquired for Own Account. The Securities shall be acquired for investment
for the Investor’s own account, not as a nominee or agent, and not with a view
to the public resale or distribution of the Securities within the meaning of the
Securities Act, and the Investor has no present intention of selling, granting
any participation in, or otherwise distributing the same.
3.3
Exempt Offering. The Investor understands that the Notes are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States Federal and state securities laws and that the
Company is relying in part upon the truth and accuracy of, and the Investor’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the
availability of such exemptions and the eligibility of the Investor to acquire
the Notes.
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3.4. Access to Information. The
Investor believes that it has received all the information it considers
necessary or appropriate for deciding whether to purchase the
Note. The Investor has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Securities and the business, properties, prospects, and
financial condition of the Company and to obtain additional information (to the
extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to
the Investor or to which the Investor had access. The foregoing,
however, does not in any way limit or modify the representations and warranties
made by the Company in Section 2.
3.5. Investment Experience. The
Investor has experience as an investor in securities of companies in the
development stage and acknowledges that it is able to fend for itself, can bear
the economic risk of its investment in the Securities, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of this investment in the Securities. The
Investor has a preexisting personal or business relationship with the Company
and certain of its officers, directors, or controlling persons of a nature and
duration that enables the Investor to be aware of the character, business
acumen, and financial circumstances of such persons.
3.6. Accredited Investor Status.
The Investor is an “accredited investor” within the meaning of Securities and
Exchange Commission (“SEC”) Rule 501 of Regulation D
promulgated under the Securities Act, as presently in effect. The
Investor is not a registered broker-dealer under Section 15 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
3.7. General Solicitation. The
Investor acknowledges that it is not purchasing the Note as a result of any
general solicitation or general advertising, as such terms are used in
Regulation D, including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by general solicitation or general advertising.
3.8. Restricted Securities. The
Investor understands that the Securities are characterized as “restricted
securities” under the Securities Act inasmuch as they are being (or shall be)
acquired from the Company in a transaction not involving a public offering and
that under the Securities Act and applicable regulations under the Securities
Act and that such Securities may be resold without registration under the
Securities Act only in certain limited circumstances. In this
connection, the Investor represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed by SEC Rule
144 and by the Securities Act. Except as provided in Section 4.7, the
Investor understands that the Company is under no obligation to register any of
the securities sold under this Agreement. The Investor understands
that no market now exists for any of the Securities and that it is uncertain
whether a market, public or otherwise, shall ever exist for the
Securities.
3.9. Further Limitations on
Disposition. Without in any way limiting the representations set forth
above, the Investor further agrees not to make any disposition of all or any
portion of the Securities unless and until:
(a) there is then in effect a
registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement; or
(b) the Investor shall have
notified the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed
disposition, and, if reasonably requested by the Company, the Investor shall, at
the expense of the Investor or its transferee, furnish the Company with an
opinion of counsel, reasonably satisfactory to the Company, that such
disposition shall not require registration of such Securities under the
Securities Act.
3.10. Legends. It is understood that
the instruments evidencing the Securities shall bear a legend substantially
similar to the legends set forth below (in addition to any legend required under
applicable state securities laws):
(a) ”[NEITHER THESE
SECURITIES NOR THE SECURITIES ISSUABLE UPON CONVERSION OF THESE SECURITIES HAVE
BEEN REGISTERED] [THESE SECURITIES HAVE NOT 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.”
4
(b) Any other legends required by state
securities laws applicable to the Investor.
The
legend set forth in Subsection (a) above shall be removed by the Company from
any instruments evidencing the Securities upon delivery to the Company of an
opinion by counsel, reasonably satisfactory to the Company, that a registration
statement under the Securities Act is at that time in effect with respect to the
legended security or that such security can be freely transferred in a public or
private sale without such a registration statement being in effect and that such
transfer shall not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Securities.
3.11. Residency. For
purposes of United States securities laws, the Investor is a resident of that
jurisdiction specified below its signature on the signature page
hereto.
ARTICLE
4
COVENANTS
4.1. Corporate Existence; Good
Standing. The Company shall preserve and maintain its corporate existence
and all of its licenses, privileges and franchises and other rights necessary or
desirable in the normal course of its businesses, except to the extent that the
failure to preserve and maintain its corporate existence and such rights would
not have a Material Adverse Effect on the Company. The Company shall
qualify to do business and shall be and remain in good standing in each
jurisdiction in which the nature of its business requires it to be so qualified,
or in which failure to be so qualified and in good standing would have a
Material Adverse Effect on the Company.
4.2. Assets. The Company shall not
sell all or substantially all of its assets without the prior written consent of
the Investor.
4.3. Compliance with Laws. The
Company shall comply with all governmental requirements, except where the
failure to do so would not have a Material Adverse Effect on the Company. The
Company shall pay and discharge when due any and all indebtedness, obligations,
assessments and real and personal property taxes, including, but not limited to,
federal and state income taxes, except as may be subject to good faith contest
or as to which a bona fide dispute may arise.
4.4. Integration. The Company shall
not, and shall use its best efforts to ensure that no affiliate of the Company
shall, 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 and issuance
of the Securities to the Investors, or that would be integrated with the offer
or sale of the Securities.
4.5. Reservation of Securities. 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. In the event that at any time the then authorized shares
of Common Stock are insufficient for the Company to satisfy its obligations in
full under the Transaction Documents, the Company shall promptly take such
actions as may be required to increase the number of authorized
shares.
5
4.6. Notice to Investor of Certain
Corporate Actions. If, at any time while Investor owns any Securities,
the Company proposes to take any action, whether by authority of its board of
directors or by way of a vote of the Company’s shareholders, that would in any
way affect the Securities or the Investor’s rights and privileges of ownership
thereof, including any recapitalization, reorganization, merger, stock split or
similar event, the Company shall provide Investor with twenty (20) days’ written
notice thereof before the taking of any such action.
4.7. Piggy
Back Registration Rights.
(a) Participation. If at any time after
the date hereof, the Company determines to register any Common Stock on a
registration statement pursuant to the Securities Act (other than (1) in a
registration relating solely to employee benefit plans, (2) a registration
on Form S-4 or S-8 (or such other similar successor forms then in effect under
the Securities Act), (3) a registration pursuant to which the Company is
offering to exchange its own securities, or (4) a registration statement
relating solely to dividend reinvestment or similar plans), then the Company
shall promptly (but in no event less than twenty (20) days before the
filing date of such registration statement) give notice (the “Piggyback Notice”) to the
Investor and the Investor shall be entitled to include in such registration
statement the Registrable Securities (as defined in Subsection (g), below) held
by him. Subject to Section 4.7(b), the Company shall include in
such registration statement such Registrable Securities for which it has
received written requests to register such shares within ten (10) days
after the Piggyback Notice.
(b) Underwriter’s Cutback.
Notwithstanding the foregoing, if a registration pursuant to this
Section 4.7 involves an underwritten offering of the Company’s securities
and the managing underwriter or underwriters of such proposed underwritten
offering shall advise the Company marketing factors (including, without
limitation, an adverse effect on the per share offering price) require a
limitation of the number of securities to be underwritten, then such
underwritten offering shall include (i) first, 100% of the securities the
Company proposes to sell (unless the Company agrees to reduce the securities to
be sold by the Company), (ii) second, the amount of securities which
holders of Registrable Securities and other holders (if any) of securities
having a right to request registration have requested to include in such
registration that the managing underwriter or underwriters believe can be sold,
such amount to be allocated pro rata among all such holders based upon the
number of issued and outstanding Registrable Securities, in the aggregate, that
are owned by each applicable holder as of the date of the Piggyback
Notice. No such reduction shall reduce the securities being offered
by the Company for its own account to be included in the registration and
underwriting.
(c) Company Control. The Company may
decline to file a registration statement after giving the Piggyback Notice, or
withdraw a registration statement after filing such Piggyback Notice, but prior
to the effectiveness of the registration statement, provided that the Company
shall promptly notify Investor in writing of any such action and provided
further that the Company shall bear all reasonable expenses incurred by Investor
or otherwise in connection with such withdrawn registration statement.
Notwithstanding any other provision herein, the Company shall have sole
discretion to select any and all underwriters that may participate in any
underwritten offering.
(d) Inclusion in Registration
Statement. At the Company’s reasonable discretion, it may request that Investor
enter into a registration rights agreement between the Company and the Investor
prior to the filing of any registration statement that includes the Investor’s
Registrable Securities. Said registration rights agreement shall be comparable
to any agreements entered into between the Company and the Company’s other
security holders whose securities are being registered in a registration
statement. The Company may exclude the Investor’s Registrable
Securities in a registration statement if he declines to enter into the
registration rights agreement.
(e) Effectiveness Period. The Company
shall maintain the effectiveness of the registration statement that includes the
Registrable Securities for a period two years commencing on the date the
registration statement is declared effective by the SEC until the earlier of (i)
the sale of all of the Registrable Securities covered by such registration
statement or pursuant to Rule 144 under the Securities Act or any similar
provision then in effect; or (ii) the time at which all of the Registrable
Securities covered by the registration statement are, in the opinion of counsel
for the Company, eligible for sale pursuant to Rule 144 (or any successor or
analogous rule) under the Securities Act.
6
(f) Expenses. The Company will pay all
registration, filing and qualification fees (including state securities law fees
and expenses), printing expenses, escrow fees, fees and disbursements of counsel
for the Company and expenses of any special audits incidental to or required by
such registration in connection with each registration of Registrable Securities
requested pursuant to this Section 4.7; provided, that the Investor shall
pay all applicable stock transfer taxes, underwriting fees, discounts, selling
commissions and similar charges with respect to the Investor’s Registrable
Securities sold by him pursuant to such registration statement.
(g) Registrable
Securities. For purposes hereof, the term “Registrable Securities” means
the shares of Common Stock issuable (i) upon conversion of the Note, and (ii)
any securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event, or any conversion price
adjustment with respect to any of the securities referenced in (i),
above.
ARTICLE
5
GENERAL
PROVISIONS
5.1. Survival of Representations and
Warranties. The representations, warranties, and covenants of the Company
and the Investor contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of the
Investor, its respective counsel, or the Company, as the case may
be.
5.2. Successors and Assigns. Except
as otherwise provided in this Agreement, the provisions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties to this Agreement (including transferees of any
Securities).
5.3. Third Parties. Nothing in this
Agreement, express or implied, is intended to confer upon any person, other than
the parties to this Agreement and their respective successors and assigns, any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
5.4. Governing Law. This Agreement
shall be governed by and construed exclusively in accordance with the internal
laws of the State of Texas as applied to agreements among Texas residents
entered into and to be performed entirely within Texas, excluding that body of
law relating to conflict of laws.
5.5. Counterparts. This Agreement
may be executed in two or more counterparts (including, without limitation,
facsimile counterparts), each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
5.6. Headings. The headings and
captions used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. All references in this
Agreement to sections, subsections, exhibits, and schedules shall, unless
otherwise provided, refer to sections and subsections of this Agreement and
exhibits and schedules attached to this Agreement, all of which exhibits and
schedules are incorporated in this Agreement by this reference.
5.7. Notices. All notices,
requests, consents, and other communications under this Agreement shall be in
writing and shall be delivered personally or by facsimile transmission or by
nationally recognized overnight delivery service or by first class certified or
registered mail, return receipt requested, postage prepaid:
If to the Company, at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000 or fax to (000) 000-0000, Attention: Xxxxxxx
Xxxxxxxx, or at such other address or addresses as may have been furnished by
giving five days advance written notice to all other parties, with a copy (which
shall not constitute notice) to
___________________________________________________________.
If to the Investor, at
___________________________ or fax to ______________, or at such other address
or addresses as may have been furnished by giving five days advance written
notice to all other parties, with a copy (which shall not constitute notice) to
_____________________________________.
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Notices provided in accordance with
this Section shall be deemed delivered upon personal delivery (including
confirmed facsimile) or three business days after deposit in the
mail.
5.8. No Finder’s Fees. Each party
represents that it neither is nor shall be obligated for any finder’s or
broker’s fee or commission in connection with the transactions contemplated by
this Agreement. The Investor agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of a finder’s or broker’s fee (and any asserted liability) for which such
Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless the
Investor from any liability for any commission or compensation in the nature of
a finder’s or broker’s fee (and any asserted liability) for which the Company or
any of its officers, employees or representatives is responsible.
5.9. Attorneys’ Fees and Expenses.
Each party to this Agreement agrees to pay its own fees and expenses arising in
connection with the negotiation and execution of this Agreement and consummation
of the transactions contemplated in this Agreement.
5.10. Amendments and Waivers. Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Investor. Any amendment or waiver affected in accordance with this
Section shall be binding upon the Investor and the Company.
5.11. Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law,
such provision(s) shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision(s) were so excluded and
shall be enforceable in accordance with its terms.
5.12. Entire Agreement. This
Agreement, together with all exhibits and schedules to this Agreement,
constitutes the entire agreement and understanding of the parties with respect
to the subject matter of this Agreement and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties, or obligations
between the parties with respect to the subject matter of this
Agreement.
5.13.
Further Assurances. From and after the date of this Agreement, upon the
request of the Investor or the Company, the Company and the Investor shall
execute and deliver such instruments, documents, or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
5.14. Delays or Omissions. No delay
or omission to exercise any right, power, or remedy accruing to the Investor,
upon any breach or default of the Company under this Agreement shall impair any
such right, power, or remedy of such Investor nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
therefore or thereafter occurring. Any waiver, permit, consent, or
approval of any kind or character on the part of the Investor of any breach or
default under this Agreement or any waiver on the part of the Investor of any
provisions or conditions of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or
otherwise afforded to the Investor, shall be cumulative and not
alternative.
5.15. Rights of the Investor. The
Investor shall have the absolute right to exercise or refrain from exercising
any right or rights that such Investor may have by reason of the Transaction
Documents, the Company’s Articles of Incorporation and Bylaws, or at law or in
equity, including, without limitation, the right to consent to the waiver of any
obligation of the Company and to enter into an agreement with the Company for
the purpose of modifying the Transaction Documents, and such Investor shall not
incur any liability to any other holder of the Company’s securities with respect
to exercising or refraining from exercising any such right or
rights.
5.16. Confidentiality. Except as
required by law, the Investor agrees that it shall keep confidential and shall
not disclose or divulge any confidential, proprietary, or secret information
which such Investor may obtain from the Company pursuant to financial
statements, reports, and other materials submitted by the Company to such
Investor pursuant to this Agreement or otherwise, or pursuant to visitation or
inspection rights granted under this Agreement or in the Transaction Documents,
unless such information is known, or until such information becomes known, to
the public; provided, that the Investor may disclose such information (a) to its
attorneys, accountants, consultants, and other professionals to the extent
necessary to obtain their services in connection with its investment in the
Company, (b) to any prospective purchaser of any Securities from such Investor
as long as such prospective purchaser agrees in writing to be bound by the
provisions of this Section, or (c) to any affiliate of such Investor or to a
partner or stockholder of such Investor.
8
IN WITNESS WHEREOF, the
parties to this Agreement have executed this Agreement as of the date first
written above.
| THE COMPANY: | |||
| TIGA ENERGY SERVICES, INC. | |||
|
By:
|
/s/ Xxxxxxx Xxxxxxxx | ||
| Name: Xxxxxxx Xxxxxxxx | |||
| Title: President | |||
| INVESTOR: | |||
| /s./ Xxxxx Xxxx | |||
| State of Residency: | Texas | ||
9
