SECURITIES PURCHASE AGREEMENT
by and among
ComVest Venture Partners, L.P.
Commonwealth Associates, L.P.
the Security holders listed on Schedule I hereto
as Sellers;
Commonwealth Associates, L.P.,
as Sellers' Representative;
and
21X Investments LLC,
as Purchaser
Dated to be effective as of May 23, 2007
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................................................1
Section 1.1. Certain Defined Terms......................................................................1
Section 1.2. Other Interpretive Provisions..............................................................5
ARTICLE II PURCHASE AND SALE..........................................................................................6
Section 2.1. Purchase and Sale of the Securities........................................................6
Section 2.2. Purchase Price.............................................................................6
Section 2.3. Closing....................................................................................6
Section 2.4. Closing Deliveries of Sellers..............................................................6
Section 2.5. Closing Deliveries of Purchaser............................................................7
Section 2.6. Escrow.....................................................................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS.................................................................8
Section 3.1. Authority..................................................................................8
Section 3.2. No Conflict................................................................................8
Section 3.3. Governmental Consents and Approvals........................................................8
Section 3.4. Ownership of Securities....................................................................8
Section 3.5. Brokers....................................................................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER................................................................9
Section 4.1. Organization and Authority.................................................................9
Section 4.2. No Conflict................................................................................9
Section 4.3. Governmental Consents and Approvals.......................................................10
Section 4.4. Purchaser Private Placement...............................................................10
Section 4.5. Investigation.............................................................................11
Section 4.6. Financing.................................................................................11
Section 4.7. Litigation................................................................................11
Section 4.8. Brokers...................................................................................11
ARTICLE V ADDITIONAL AGREEMENTS......................................................................................11
Section 5.1. Tax Matters...............................................................................11
Section 5.2. Assignment of Registration Rights. .......................................................11
Section 5.3. Further Action............................................................................12
ARTICLE VI CONDITIONS TO CLOSING.....................................................................................12
Section 6.1. Conditions to Obligations of Sellers and Purchaser........................................12
Section 6.2. Additional Condition to Obligations of Sellers............................................12
Section 6.3. Additional Conditions to Obligations of Purchaser.........................................13
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TABLE OF CONTENTS
(Continued)
Page
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ARTICLE VII TERMINATION AND WAIVER...................................................................................13
Section 7.1. Termination...............................................................................13
Section 7.2. Effect of Termination.....................................................................14
Section 7.3. Waiver....................................................................................15
ARTICLE VIII SURVIVAL OF REPRESENTATIONS AND WARRANTIES..............................................................15
Section 8.1. Survival of Representations and Warranties................................................15
ARTICLE IX MISCELLANEOUS.............................................................................................15
Section 9.1. Expenses..................................................................................15
Section 9.2. Notices...................................................................................16
Section 9.3. Public Announcements......................................................................16
Section 9.4. Severability..............................................................................17
Section 9.5. Entire Agreement..........................................................................17
Section 9.6. Assignment................................................................................17
Section 9.7. No Third Party Beneficiaries..............................................................17
Section 9.8. Amendment.................................................................................17
Section 9.9. Governing Law.............................................................................17
Section 9.10. Waiver of Jury Trial......................................................................18
Section 9.11. Counterparts..............................................................................18
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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated to be effective as of May 23
2007 (as amended, restated, supplemented or otherwise modified from time to
time, this "Agreement"), by and among ComVest Venture Partners, L.P., a limited
partnership organized and existing under the laws of the State of Delaware,
Commonwealth Associates, L.P., a limited partnership organized and existing
under the laws of the State of New York, the shareholders and warrant holders
listed on Schedule I hereto (collectively the "Sellers", and each a "Seller"),
as sellers, Commonwealth Associates, L.P., a limited partnership organized and
existing under the laws of the State of New York as the sellers' representative
(the "Sellers' Representative"), and 21X Investments LLC, a limited liability
company organized and existing under the laws of the State of Nevada
("Purchaser"), as purchaser.
W I T N E S S E T H:
WHEREAS, Sellers as of the date hereof desire to sell the aggregate
number of shares set forth on Schedule I hereto (the "Common Shares") of the
Common Stock (as defined below) of the Company (as defined below), the aggregate
number of Commonwealth Options (as defined below) set forth on Schedule I
hereto, the aggregate number of ComVest Warrants (as defined below) set forth on
Schedule I hereto, and the aggregate number of Unit Purchase Options (as defined
below) set forth on Schedule I hereto (such Common Shares, Commonwealth Options,
ComVest Warrants and Unit Purchase Options specified on Schedule I are
collectively referred to as the "Securities").
WHEREAS, Sellers wish to sell to Purchaser, and Purchaser wishes to
purchase from Sellers, the Securities, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
agreements, covenants, representations and warranties hereinafter set forth and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. Unless the context otherwise
requires, the following terms, when used in this Agreement, shall have the
respective meanings specified below:
"Action" shall mean any claim, action, charge, complaint, suit,
arbitration, grievance, inquiry, proceeding or investigation by or before any
Governmental Authority or duly appointed arbitration authority.
"affiliate" shall mean, with respect to any specified Person, any other
Person, that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" shall have the meaning specified in the preamble to this
Agreement.
"Assets" shall mean all of the Company's right, title and interest in
and to all of the material properties and assets used in the conduct of its
Business and all material contracts, agreements and other arrangements used in
or relating to the conduct of its Business.
"Business" shall mean the businesses engaged in by the Company as
conducted on the date hereof.
"Closing Date" shall have the meaning specified in Section 2.3.
"Closing" shall have the meaning specified in Section 2.3.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the shares of common stock, par value $0.01
per share of the Company.
"Commonwealth Option" shall mean the option issued by the Company to
Commonwealth Associates, L.P., as the placement agent for the Commonwealth
Private Placement, to purchase (i) shares of the Series A Preferred Stock
convertible into an aggregate of 926,850 shares of Common Stock and (ii) a
warrant to purchase 324,397 shares of Common Stock at an exercise price of $1.00
per share.
"Company" shall mean Notify Technology Corporation, a corporation
organized and existing under the laws of the State of California.
"ComVest Warrants" shall mean the warrants issued by the Company to
ComVest Venture Partners, L.P. on May 15, 2001, to purchase 118,151 shares of
Common Stock in connection with ComVest Venture Partners' commitment to invest
in the Commonwealth Private Placement the difference between $5,000,000 and the
aggregate amount of money invested by all other investors in the financing.
"control" (including the terms "controlled by" and "under common
control with") shall mean, with respect to the relationship between or among two
or more Persons, the possession, directly or indirectly, or as trustee, personal
representative or executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting
securities, as trustee, personal representative or executor, by contract or
otherwise, including, without limitation, the ownership, directly or indirectly,
of securities having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person.
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"Disclosure Schedule" shall mean the Disclosure Schedule attached
hereto, dated as of the date hereof, and forming a part of this Agreement, which
Disclosure Schedule shall (i) consist of items of disclosure categorized by
sections, and (ii) provide information, or otherwise qualify, the
representations and warranties set forth in the corresponding sections of this
Agreement and any other sections of this Agreement to the extent that it is
readily apparent on the face of such disclosure that such disclosure applies to
such other sections of this Agreement.
"Encumbrance" shall mean any security interest, pledge, mortgage, lien,
charge, encumbrance, adverse claim, option, right of first refusal, easement,
encroachment, indenture, right of way, deed of trust, lease or security
agreement, excluding licenses of intellectual property.
"Governmental Authority" shall mean any national, federal, state,
provincial, municipal, local, foreign or other government, governmental,
regulatory or administrative authority, agency or commission or any court,
tribunal or other judicial body.
"Governmental Order" shall mean any legally binding order, writ,
judgment, injunction, decree, stipulation, or determination of any Governmental
Authority.
"knowledge" shall mean, with respect to any specified Person, (i) if
such Person is an individual, the actual knowledge of such Person, and (ii) if
such Person is not an individual, the actual knowledge of any executive officer
(or other individual serving in a similar capacity) of such Person; provided,
that such executive officer shall have made reasonable inquiry of any employees
of such Person whom such executive officer reasonably believes would have actual
knowledge of the relevant matter.
"Law" shall mean any statute, law, ordinance, regulation, rule, code,
order or other requirement enacted, entered or promulgated by any Governmental
Authority.
"Liabilities" shall mean any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, that are required to be disclosed on a
balance sheet or in the notes thereto under U.S. GAAP.
"Material Adverse Effect" shall mean any circumstance involving, change
in or effect on the Business that is materially adverse to the Business,
operations, Assets or Liabilities, results of operations or financial condition
of the Company and its Subsidiaries, taken as a whole; provided, however, that
none of the following shall be deemed, either alone or in combination, to
constitute a Material Adverse Effect: any circumstance, change or effect
resulting from or arising out of (i) the announcement of this Agreement or the
pendency of the transactions contemplated by this Agreement; (ii) the
performance by Sellers of their respective obligations under this Agreement or
as required by applicable Law or accounting requirements; (iii) general economic
conditions in the United States or other countries where the Company or any of
its Subsidiaries conduct the Business; (iv) the industries in which the Company
or any of its Subsidiaries conduct the Business; (v) any natural disaster or any
acts of terrorism, sabotage, military action or war (whether or not declared)
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or any escalation or worsening thereof; or (vi) any failure by the Company and
its Subsidiaries to meet projections or forecasts for any period ending on or
after the date of this Agreement.
"material contract" shall mean any circumstance involving, change in or
effect on the Business that is materially adverse to the Business, operations,
Assets or Liabilities, results of operations or financial condition of the
Company, taken as a whole; provided, however, that none of the following shall
be deemed, either alone or in combination, to constitute a material contract:
any circumstance, change or effect resulting from or arising out of (i) the
announcement of this Agreement or the pendency of the transactions contemplated
by this Agreement; (ii) the performance by Sellers of their respective
obligations under this Agreement or as required by applicable Law or accounting
requirements; (iii) general economic conditions in the United States or other
countries where the Company or any of its Subsidiaries conduct the Business;
(iv) the industries in which the Company or any of its Subsidiaries conduct the
Business; (v) any natural disaster or any acts of terrorism, sabotage, military
action or war (whether or not declared) or any escalation or worsening thereof;
or (vi) any failure by the Company to meet projections or forecasts for any
period ending on or after the date of this Agreement.
"Person" shall mean any individual, partnership, firm, corporation,
joint venture, association, trust, unincorporated organization or other entity,
as well as any syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Preferred Stock" shall mean the Series A Convertible Redeemable
Preferred Stock of the Company.
"Commonwealth Private Placement" shall mean the private Preferred Stock
and warrant financing completed by the Company on July 20, 2001 wherein the
Company sold shares of Series A Preferred Stock convertible into an aggregate of
5,010,000 shares of Common Stock and warrants to purchase an aggregate of
1,753,500 shares of Common Stock at an exercise price of $1.00 per share.
"Purchase Price" shall have the meaning specified in Section 2.3.
"Purchaser" shall have the meaning specified in the preamble to this
Agreement.
"Securities" shall have the meaning specified in the Section 2.1(a).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sellers' Representative" shall have the meaning specified in the
preamble to this Agreement.
"Sellers" shall have the meaning specified in the preamble to this
Agreement.
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"Tax" or "Taxes" shall mean any and all taxes, fees, levies, duties,
tariffs, imposts, and other charges of any kind (together with any and all
interest, penalties, loss, damage, liability, expense, additions to tax and
additional amounts or costs incurred or imposed with respect thereto) imposed by
any government or taxing authority, including, without limitation, (i) taxes or
other charges on or with respect to income, franchises, concessions, windfall or
other profits, gross receipts, property, sales, use, capital gains, capital
stock or shares, payroll, employment, social security, workers' compensation,
unemployment compensation, or net worth; (ii) taxes or other charges in the
nature of excise, withholding, ad valorem, stamp, transfer, value added, or
gains taxes; (iii) license, registration and documentation fees; and (iv)
customs duties, tariffs, and similar charges.
"Unit Purchase Options" shall mean the Unit Purchase Options initially
issued through the Company's private placement financing of July 20, 2001, with
each divisible Unit Purchase Option originally consisting of 100,000 shares of
the Company's Series A Convertible Redeemable Preferred Stock and 35,000 common
stock purchase warrants for an original issue purchase price of $100,000 per
unit.
"U.S. GAAP" shall mean United States generally accepted accounting
principles and practices as in effect from time to time and applied consistently
throughout the periods involved.
Section 1.2. Other Interpretive Provisions. With reference to this
Agreement, unless otherwise specified herein, the following interpretive
provisions shall apply:
(a) the meanings of defined terms are equally applicable to the
singular and plural forms of such defined terms;
(b) the words "herein," "hereto," "hereof" and "hereunder" and words of
similar import shall refer to this Agreement as a whole and not to any
particular provision hereof;
(c) Article, Section, Exhibit and Schedule references are to this
Agreement;
(d) the term "including" is by way of example and not limitation;
(e) the term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form;
(f) in the computation of periods of time from a specified date to a
later specified date, (i) the word "from" shall mean "from and including;" (ii)
the words "to" and "until" each mean "to but excluding;" and (iii) the word
"through" shall mean "to and including"; and
(g) section headings herein are included for convenience of reference
only and shall not affect the interpretation of this Agreement.
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ARTICLE II
PURCHASE AND SALE
Section 2.1. Purchase and Sale of the Securities. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing, each
Seller shall sell, assign, transfer, convey and deliver to Purchaser or cause to
be sold, assigned, transferred, conveyed and delivered to Purchaser, free and
clear of any and all Encumbrances (other than restrictions on transfer under
applicable state and federal securities laws), and Purchaser shall purchase, the
Securities set forth opposite such Seller's name on Schedule I hereto.
Section 2.2. Purchase Price. In consideration for the sale of
Securities upon the terms and subject to the conditions set forth in this
Agreement Purchaser shall pay to Sellers (as aggregate consideration) an amount
equal to One Million Three Hundred Thirty Thousand Seventy Four and 96/100
Dollars ($1,330,074.96) (which is an amount computed at Twenty Cents ($0.20) per
share for each share of the Common Stock and Ten Dollars ($10.00) for each Unit
Purchase Option), (the "Purchase Price"), such amount to be allocated among such
Sellers in accordance with Schedule I hereto.
Section 2.3. Closing. Upon the terms and subject to the conditions of
this Agreement, the sale and purchase of Securities shall take place at a
closing (the "Closing") to be held at the offices of American Stock Transfer &
Trust Company, or at such other place as Sellers' Representative, on behalf of
Sellers, and Purchaser may mutually agree upon in writing, which date shall be
no later than the second (2nd) business day after the satisfaction or valid
waiver of the conditions set forth in Article VI that are capable of being
satisfied prior to the Closing (the day on which the Closing takes place being
referred to herein as the "Closing Date").
Section 2.4. Closing Deliveries of Sellers. Upon the terms and subject
to the conditions set forth in this Agreement, at the Closing, each Seller shall
deliver, or cause to be delivered, to Purchaser the following:
(a) a stock certificate, or certificates, evidencing the
Common Stock held by such Seller, if any, duly endorsed in blank or accompanied
by stock powers duly executed in blank, with all required stock transfer tax
stamps affixed thereto;
(b) a stock certificate, or certificates, evidencing the
Preferred Stock held by such Seller, if any, duly endorsed in blank or
accompanied by stock powers duly executed in blank, with all required stock
transfer tax stamps affixed thereto;
(c) a certificate, or certificates, evidencing the
Commonwealth Options held by such Seller, if any, duly endorsed in blank or
accompanied by such assignment or stock powers, as the Purchaser may reasonably
request, duly executed in blank, with all required stock transfer tax stamps
affixed thereto;
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(d) a certificate, or certificates, evidencing the ComVest
Warrants held by such Seller, if any, duly endorsed in blank or accompanied by
such assignment or stock powers, as the Purchaser may reasonably request, duly
executed in blank, with all required stock transfer tax stamps affixed thereto;
(e) a certificate, or certificates, evidencing the Unit
Purchase Options held by such Seller, if any, duly endorsed in blank or
accompanied by such assignment or stock powers, as the Purchaser may reasonably
request, duly executed in blank, with all required stock transfer tax stamps
affixed thereto; and
(f) each of the documents required to be delivered by Sellers
pursuant to Section 6.3 that has not been delivered prior to the Closing.
Section 2.5. Closing Deliveries of Purchaser. Upon the terms and
subject to the conditions set forth in this Agreement, at the Closing, Purchaser
shall deliver, or cause to be delivered the following:
(a) the aggregate of the payments to be made to the Sellers in
accordance with Schedule I hereto, by wire transfer in immediately available
funds to the bank account or accounts designated by the Escrow Agent in writing
not fewer than one (1) business day prior to the Closing; and
(b) each of the documents required to be delivered by
Purchaser pursuant to Section 6.2 that has not been delivered prior to the
Closing.
Section 2.6. Escrow. Pursuant to an escrow agreement to be entered into
on or before the Closing Date (the "Escrow Agreement"), among Purchaser,
Sellers' Representative and American Stock Transfer & Trust Company, or such
other entity mutually agreeable to Purchaser and the Sellers' Representative
(the "Escrow Agent"), Sellers and Sellers' Representative will deliver to the
Escrow Agent prior to the Closing Date all of the closing deliveries of Sellers
required by Section 2.4, and Purchaser will deliver to the Escrow Agent prior to
the Closing Date all of the closing deliveries of Purchaser required by Section
2.5. At the Closing, the Escrow Agent shall simultaneously release the closing
deliveries of Sellers to the Purchaser, and the closing deliveries of the
Purchaser to the respective Sellers in the aggregate of the payments to be made
to any such Seller, net of each Sellers' respective payment to the Sellers'
broker for organizing the transactions contemplated by this Agreement at the
rate of One-Half Cent ($0.005) per share for each share of the Common Stock.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
As an inducement to Purchaser to enter into this Agreement, each of the
Sellers hereby severally, and not jointly, represents and warrants to Purchaser
solely with respect to itself, himself or herself that, except as set forth in
the Disclosure Schedule:
Section 3.1. Authority. If such Person is not an individual, such
Person has all necessary company, corporate or partnership power and authority,
and if such Person is an individual, such Person has full legal capacity, to
enter into this Agreement, to carry out such Person's obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by such Person, and (assuming due authorization,
execution and delivery by Purchaser and each other Person party hereto) this
Agreement constitutes a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as such
enforceability may be subject to the laws of general application relating to
bankruptcy, insolvency, and the relief of debtors and rules of law governing
specific performance, injunctive relief, or other equitable remedies.
Section 3.2. No Conflict. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in Section 3.3, the execution, delivery and performance of this
Agreement by such Person does not and will not (i) if such Person is not an
individual, violate, conflict with or result in the breach of any provision of
the charter or bylaws (or similar organizational documents) of such Person, (ii)
conflict with or violate any Law or Governmental Order applicable to such Person
or the Securities held thereby, or (iii) result in the creation of any
Encumbrance (other than restrictions on transfer under applicable state and
federal securities laws) on any of the Securities held by such Person pursuant
to any material note, bond, mortgage, deed of trust, indenture, contract,
agreement, lease, sublease, offer to lease, agreement to lease, license, permit,
franchise or other instrument or arrangement to which such Person is a party or
by which any of the Securities held by such Person is bound or affected, in each
case which could reasonably be expected to have a Material Adverse Effect on the
ability of Purchaser to consummate the transactions contemplated by this
Agreement.
Section 3.3. Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by such Person does not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
Section 3.4. Ownership of Securities. Such Person owns of record such
number of Securities as is set forth opposite such Person's name on Schedule I
hereto, free and clear of all Encumbrances (other than restrictions on transfer
under applicable state and federal securities laws).
Section 3.5. Brokers. Except for Commonwealth Associates, LP and/or one
or more affiliates thereof, no broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based
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upon any agreement, arrangement or understanding made by or on behalf of such
Person. All fees and costs of the Escrow and Escrow Agent shall be borne by
Sellers and paid by Commonwealth Associates, LP from the fees paid to it by the
Sellers.
Section 3.6. Legal Counsel. Except as set forth below, each Seller
acknowledges that it was represented by separate legal counsel in this matter
who participated in the preparation of this Agreement or it had the opportunity
to retain counsel to participate in the preparation of this Agreement but chose
not to do so. Each Seller further acknowledges that Xxxxxxxxx Xxxxxxx, LLP is
acting solely as counsel to ComVest Venture Partners, L.P., Commonwealth
Associates, L.P., RMC Capital LLC, Xxxxxxx Xxxx, Xxxxxx X'Xxxxxxxx and Xxxxx
Xxxxxx and no other party hereto in connection with the transactions
contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Sellers to enter into this Agreement, Purchaser
hereby represents and warrants to each of the Sellers as follows:
Section 4.1. Organization and Authority. Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Nevada, and has all necessary corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Purchaser, the performance by Purchaser of all
of its obligations hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized and approved by all
requisite action on the part of Purchaser and its members. This Agreement has
been duly executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by each party thereto) constitutes a legal, valid and
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms, except as such enforceability may be subject to the laws of
general application relating to bankruptcy, insolvency, and the relief of
debtors and rules of law governing specific performance, injunctive relief, or
other equitable remedies.
Section 4.2. No Conflict. Assuming the making and obtaining of all
filings, notifications, consents, approvals, authorizations and other actions
referred to in Section 5.3, the execution, delivery and performance of this
Agreement by Purchaser does not and will not (i) violate, conflict with or
result in the breach of any provision of the charter or bylaws of Purchaser,
(ii) conflict with or violate any Law or Governmental Order applicable to
Purchaser, or (iii) conflict in any material respect with, or result in any
material breach of, constitute a material default (or event which with the
giving of notice or lapse of time, or both, would become a material default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, or result in
any material note, bond, mortgage, deed of trust,
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indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which Purchaser is a party or by which any of
such assets or properties is bound or affected, in each case which could
reasonably be expected to have a Material Adverse Effect on the ability of
Purchaser to consummate the transactions contemplated by this Agreement.
Section 4.3. Governmental Consents and Approvals. The execution,
delivery and performance of this Agreement by Purchaser does not and will not
require any consent, approval, authorization or other order of, action by,
filing with, or notification to, any Governmental Authority, except as described
in a writing given to Sellers' Representative by Purchaser on the date of this
Agreement.
Section 4.4. Purchaser Private Placement.
(a) Purchaser understands that (i) the offering and sale of
the Securities under this Agreement is intended to be exempt from the
registration requirements of the Securities Act, and (ii) there is no existing
public or other market for the Securities and there can be no assurance that
Purchaser will be able to sell or dispose of the Securities.
(b) Purchaser is acquiring the Securities for its own account
solely for the purpose of investment and not with a view to, or for offer or
sale in connection with, any distribution thereof.
(c) Purchaser is an "accredited investor" as such term is
defined in Rule 501(a) under the Securities Act.
(d) Purchaser is not a broker-dealer subject to Regulation T
promulgated by the Board of Governors of the Federal Reserve System.
(e) Purchaser has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Securities, and Purchaser is capable of bearing
the economic risks of such investment, including a complete loss of its
investment in the Securities.
(f) In evaluating the suitability of an investment in the
Securities, Purchaser has not relied upon any representations or other
information (whether oral or written) made by or on behalf of the Sellers'
Representative or any Seller other than as contemplated by Article III hereof.
(g) Purchaser agrees that the Securities will be "restricted
securities" within the meaning of the rules and regulations under the Securities
Act and may not be sold, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of without registration under the Securities Act and any
applicable state securities laws, except pursuant to an exemption from such
registration under the Securities Act and such laws, and that certificates for
the securities issued hereunder will bear a legend to that effect.
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(h) Purchaser acknowledges that Xxxxx Taller, a Seller, is an
affiliate (as such term is defined pursuant to Rule 144 of the Securities Act)
of the Company.
Section 4.5. Investigation. Purchaser (i) has made its own inquiry and
investigation into, and, based thereon, has formed an independent judgment
concerning the Company and the Business, and (iii) understands that none of
Sellers is making any representation or warranty with respect to the Business or
the operations, Assets, Liabilities, prospects, results of operations or
financial condition of the Company.
Section 4.6. Financing. Purchaser has sufficient cash, cash
equivalents, available lines of credit or other sources of immediately available
funds to enable it to consummate the transactions contemplated by this Agreement
and to make prompt payment of the Purchase Price and any other amounts to be
paid by it hereunder.
Section 4.7. Litigation. Except as set forth in a writing given to the
Sellers' Representative by Purchaser on the date of this Agreement, no claim,
action, or proceeding is pending or, to the knowledge of Purchaser, threatened,
which seeks to delay or prevent the consummation of, or which could reasonably
be expected to materially adversely affect Purchaser's ability to consummate,
the transactions contemplated by this Agreement.
Section 4.8. Brokers. Except for Commonwealth Associates, LP, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon any agreement, arrangement or understanding, written or
oral, made by or on behalf of Purchaser. Sellers shall be solely responsible for
payment of the fees and expenses of Commonwealth Associates, LP and the Escrow
Agent.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1. Tax Matters. Purchaser shall be liable for and shall hold
the Sellers harmless against any transfer, stock transfer and stamp Taxes, any
transfer, recording, registration and other fees, and any similar Taxes and fees
which become payable in connection with the sale and purchase of the Securities
pursuant to this Agreement.
Section 5.2. Assignment of Registration Rights. The Sellers acknowledge
that certain of the Securities may be subject to that certain Registration
Rights Agreement (the "Registration Rights Agreement") dated as of July 20, 2001
by and between the Company and the Investors (as identified and defined
therein). At the Closing, each Seller hereby agrees that all right, title and
interest of such Seller, if any, in and to the Registration Rights Agreement
shall be automatically assigned by such Seller to the Purchaser, without the
requirement of any further action on behalf of such Seller.
-11-
Section 5.3. Further Action. Each of the parties hereto shall use
commercially reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper or advisable under
applicable Law, and execute and deliver such documents and other papers, as may
reasonably be required to carry out the provisions of this Agreement and
consummate and make effective the transactions contemplated by this Agreement,
and to vest in Purchaser good and valid title to the Securities.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1. Conditions to Obligations of Sellers and Purchaser. The
obligations of each Seller and Purchaser to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing, of each of the following conditions:
(a) Regulatory Approvals. Purchaser and the Company shall have
received all authorizations, consents, orders and approvals of all Governmental
Authorities that are necessary to consummate the transactions contemplated by
this Agreement.
(b) No Governmental Order. No Governmental Authority shall
have enacted, issued, promulgated, enforced or entered any Law or Governmental
Order which is in effect and has the effect of making the transactions
contemplated by this Agreement illegal or otherwise restraining or prohibiting
the consummation of the transactions contemplated by this Agreement.
(c) No Proceeding or Litigation. No Action shall have been
commenced by or before any Governmental Authority against any of the Company,
Seller or Purchaser seeking to restrain or materially and adversely alter the
transactions contemplated by this Agreement which, in the reasonable, good faith
determination of Sellers' Representative or Purchaser is likely to prevent the
parties from consummating such transactions contemplated this Agreement;
provided, however, that the provisions of this Section 6.1(c) shall not apply to
any party which has directly or indirectly solicited or encouraged any such
Action.
Section 6.2. Additional Condition to Obligations of Sellers. The
obligations of each Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
the additional condition that (i) the representations and warranties of
Purchaser contained in this Agreement that are not qualified by materiality
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as if made as of the Closing Date (other than such
representations and warranties as are made as of another date, which shall have
been true and correct in all material respects as of such other date), (ii) the
representations and warranties of Purchaser contained in this Agreement that are
qualified by materiality shall be true and correct as of the Closing Date, with
the same force and effect as if made as of the Closing Date (other than such
representations and warranties as are made as of another date, which shall have
been true and correct as of such other date), (iii) the covenants and agreements
contained in this Agreement to be complied with by Purchaser on or before the
Closing
-12-
shall have been complied with in all material respects, and (iv) Sellers'
Representative shall have received a certificate from Purchaser to such effect
signed by a duly authorized officer thereof.
Section 6.3. Additional Conditions to Obligations of Purchaser. The
obligations of Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing, of
the additional condition that (i) the representations and warranties of Sellers
contained in this Agreement shall be true and correct as of the Closing Date
with the same force and effect as if made as of the Closing Date (other than
such representations and warranties as are made as of another date, which shall
have been true and correct as of such other date), with only such exceptions as,
individually or in the aggregate, have not had Material Adverse Effect
(disregarding each exception or qualification therein relating to materiality
and Material Adverse Effect), (ii) the covenants and agreements contained in
this Agreement to be complied with by Sellers on or before the Closing shall
have been complied with in all material respects, and (iii) Purchaser shall have
received a certificate from Sellers' Representative, on behalf of Sellers, to
such effect (relating to Sellers). Further, the obligations of Purchaser to
consummate the transactions contemplated by this Agreement shall be subject to
the additional conditions that (x) there shall not have occurred any material
adverse change (taken together with all other developments) since the date of
this Agreement that would have a Material Adverse Effect, (y) the Securities
specified on Schedule I hereto shall consist of at least 6,650,000 shares of
Common Stock, and (z) the Securities specified on Schedule I hereto shall
constitute at least a majority of the issued and outstanding Commonwealth
Options, at least a majority of the issued and outstanding ComVest Warrants, and
at least a majority of the issued and outstanding Unit Purchase Options.
ARTICLE VII
TERMINATION AND WAIVER
Section 7.1. Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by the mutual written consent of Sellers' Representative,
on behalf of Sellers, and Purchaser;
(b) by Sellers' Representative, on behalf of Sellers, or
Purchaser, if the Closing shall not have occurred by June 1, 2007; provided,
however, that the right to terminate this Agreement under this Section 7.1(b)
shall not be available to any party hereto whose actions or failure to fulfill
any obligation under this Agreement shall have been the cause of, or shall have
resulted in, the failure of the Closing to occur on or prior to such date and
such actions or failure to act constitutes a breach of this Agreement.
(c) by Sellers' Representative, on behalf of Sellers, or
Purchaser, if there shall have been enacted, issued, promulgated or enforced any
Law that makes the consummation of the transactions contemplated by this
Agreement illegal, or any Governmental Order permanently restraining, enjoining
or otherwise prohibiting the parties hereto from consummating the
-13-
transactions contemplated by this Agreement, and such Governmental Order shall
have become final and non-appealable; provided, however, that the right to
terminate this Agreement under this Section 7.1(c) shall not be available to any
party hereto as a result of the imposition of a Governmental Order unless such
party shall have used commercially reasonable efforts to oppose any Governmental
Order or to have such Governmental Order vacated or made inapplicable to the
transactions contemplated by this Agreement.
(d) by Sellers' Representative, on behalf of Sellers, if
following the date hereof, (i) any representation or warranty of Purchaser
contained in this Agreement shall have become inaccurate in any material
respect, or (ii) Purchaser shall have failed in any material respect to comply
with any covenant or agreement contained in this Agreement to be complied with
by it prior to the Closing; provided, however, that notwithstanding the
foregoing, in the event that any such inaccuracy or breach is curable by
Purchaser through the exercise of commercially reasonable efforts, then Sellers'
Representative shall not be permitted to terminate this Agreement pursuant to
this Section 7.1(d) until the earlier to occur of (i) the expiration of a thirty
(30) calendar day period after delivery of written notice from Sellers'
Representative, on behalf of Sellers, to Purchaser of such inaccuracy or breach,
as applicable, and (ii) the ceasing by Purchaser to exercise commercially
reasonable efforts to cure such inaccuracy or breach, as applicable, provided
that Purchaser continues to exercise commercially reasonable efforts to cure
such inaccuracy or breach, as applicable (it being understood that Sellers'
Representative, on behalf of Sellers, may not terminate this Agreement pursuant
to this Section 7.1(d) if such inaccuracy or breach is cured by Purchaser within
such thirty (30) calendar day period).
(e) by Purchaser, if following the date hereof, (i) any
representation or warranty of Sellers contained in this Agreement shall have
become inaccurate, with only such exceptions as, individually or in the
aggregate, have not had a Material Adverse Effect, or (ii) any of the Sellers
shall have failed in any material respect to comply with any covenant or
agreement contained in this Agreement to be complied with by any of them prior
to the Closing; provided, however, that notwithstanding the foregoing, in the
event that any such inaccuracy or breach is curable by the applicable Seller or
the Company, through the exercise of commercially reasonable efforts, then
Purchaser shall not be permitted to terminate this Agreement pursuant to this
Section 8.1(e) until the earlier to occur of (i) the expiration of a thirty (30)
calendar day period after delivery of written notice from Purchaser to Sellers'
Representative, on behalf of Sellers, of such inaccuracy or breach, as
applicable, and (ii) the ceasing by the applicable Seller or the Company, as
applicable, to exercise commercially reasonable efforts to cure such inaccuracy
or breach, as applicable, provided that the applicable Seller or the Company, as
applicable, continues to exercise commercially reasonable efforts to cure such
inaccuracy or breach, as applicable (it being understood that Purchaser may not
terminate this Agreement pursuant to this Section 8.1(e) if such inaccuracy or
breach is cured by the applicable Seller or the Company within such thirty (30)
calendar day period).
Section 7.2. Effect of Termination. In the event of termination of this
agreement as provided in Section 7.1, this Agreement shall forthwith become void
and there shall be no liability
-14-
on the part of any party hereto except (i) as set forth in this Section 7.2 and
Article IX and (ii) that nothing herein shall relieve any party from liability
for any willful breach of this Agreement.
Section 7.3. Waiver.
(a) Sellers' Representative, on behalf of Sellers, may (i)
extend the time for the performance of any of the obligations or other acts of
Purchaser or any of the obligations or other acts of the Company to be performed
after the Closing, (ii) waive any inaccuracies in the representations and
warranties of Purchaser contained herein or in any document delivered by
Purchaser pursuant hereto, or (iii) waive compliance with any of the agreements
or conditions of Purchaser contained or compliance after the Closing with any of
the agreements or conditions of the Company contained herein. Any such extension
or waiver shall be valid only if set forth in an instrument in writing signed by
Sellers' Representative, on behalf of Sellers.
(b) Purchaser may (i) extend the time for the performance of
any of the obligations or other acts of any Seller, Sellers' Representative, the
Company or any of its Subsidiaries, (ii) waive any inaccuracies in the
representations and warranties of any Seller contained herein or in any document
delivered by any Seller or Sellers' Representative pursuant hereto or (iii)
waive compliance with any of the agreements or conditions of any Seller or
Sellers' Representative contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by Purchaser.
(c) Any waiver of any term or condition shall not be construed
as a waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of any party to assert any of its rights hereunder shall not constitute
a waiver of any of such rights.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 8.1. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement shall be true and
correct as of the Closing Date and shall not survive the Closing.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
-15-
Section 9.2. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered, given or
made (and shall be deemed to have been duly delivered, given or made upon
receipt) by delivery in person, or by courier service, cable, telecopy,
telegram, or registered or certified mail (postage prepaid, return receipt
requested) to the respective parties hereto at their addresses set forth below
(or at such other address for a party hereto as shall be specified in a notice
given in accordance with this Section 9.2) provided, that Xxxxxxxxx Traurig, LLP
shall only be provided copies of notices sent to ComVest Venture Partners, L.P.,
Commonwealth Associates, L.P., RMC Capital LLC, Xxxxxxx Xxxx, Xxxxxx X'Xxxxxxxx
and Xxxxx Xxxxxx.
If to Purchaser:
21X Investments LLC
0000 Xxxxxxxxx Xx X00
Xxxx XX 00000
Attn: Xxxxx X. Xxxxxx, Manager
with a copy (which shall not constitute notice) to:
Xxxx X Xxxxxxx, Esq.
Xxxxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxxxx XX 00000
Telecopy 000 000 0000
If to Sellers or Sellers' Representative:
Commonwealth Associates, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy 000-000-0000
Attn: Xxxxxxx X. Xxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 212-801-6400
Attention: Xxxx X. Annex, Esq.
Section 9.3. Public Announcements. No party to this Agreement shall
make, or cause to be made, any press release or public announcement with respect
to this Agreement or the transactions contemplated hereby or otherwise
communicate with any news media with respect
-16-
thereto without the prior written consent of the other parties, and the parties
shall cooperate as to the timing and contents of any such press release or
public announcement; provided, however, that such prior written consent (i)
shall not be unreasonably withheld or delayed, (ii) shall not be required for
releases, announcements or communications to the extent obtaining such prior
written consent would prevent the timely and accurate dissemination of
information as required to comply with any applicable Law, and (iii) shall not
be required in connection with any filings, announcements, releases or
notifications required to be made in accordance with the Securities Exchange Act
of 1934, as amended.
Section 9.4. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 9.5. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, covenants, representations, warranties,
undertakings and understandings, written or oral, among the parties hereto with
respect to the subject matter hereof.
Section 9.6. Assignment. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of Sellers'
Representative, on behalf of Sellers, and Purchaser (which consent may be
granted or withheld in the reasonable discretion of each such party).
Section 9.7. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and nothing herein, whether express or implied, is intended to
or shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement, provided,
however, that the provisions of Section 5.6 concerning indemnification are
intended for the benefit of the individuals referred to in such section.
Section 9.8. Amendment. This Agreement may not be amended, restated,
supplemented or otherwise modified except (i) by an instrument in writing signed
by Sellers' Representative, on behalf of Sellers, and Purchaser or (ii) by a
waiver in accordance with Section 7.3.
Section 9.9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
-17-
Section 9.10. Waiver of Jury Trial. EACH OF THE PARTIES HERETO WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO TRIAL
BY JURY IN RESPECT OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED ON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES HERETO EACH HEREBY AGREES THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT THE PARTIES HERETO MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 9.11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original as against any party
whose signature appears thereon and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all the parties reflected hereon as signatories.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-18-
IN WITNESS WHEREOF, each party hereto has executed, or caused its duly
authorized officer(s) to execute, this Agreement to be effective as of the date
first written above.
[Signature Page 1 of 3]
SELLERS' REPRESENTATIVE PURCHASER
Commonwealth Associates, L.P. 21X Investments LLC
By: /s/ Xxxxxx X. X'Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------------- ----------------------------
Name: Xxxxxx X. X'Xxxxxxxx Name: Xxxxx X. Xxxxxx
-------------------------- -----------------------
Title: CEO/President Title: Manager
-------------------------- -----------------------
SELLERS
ComVest Venture Partners, L.P.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
--------------------------
Title: Partner
--------------------------
Commonwealth Associates, L.P.
By: /s/ Xxxxxx X. X'Xxxxxxxx
--------------------------------
Name: Xxxxxx X. X'Xxxxxxxx
--------------------------
Title: CEO/President
--------------------------
RMC Capital LLC
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
--------------------------
Title: Chairmand and CEO
--------------------------
-19-
[Signature Page 2 of 3]
SELLERS
Siam Partners II
By: /s/ Xxxxxx X. Xxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxx, Xx.
--------------------------
Title: Director
--------------------------
Tahoe Partners
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title:
--------------------------
Xxxxxxx Partners LP
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
--------------------------
Title:
--------------------------
Xxxxx Corp
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
--------------------------
Title: President
--------------------------
/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
-20-
[Signature Page 3 of 3]
SELLERS
/s/ Xxxxxxx X. XxXxxxxxx
----------------------------
Xxxxxxx X. XxXxxxxxx
/s/ Xxxxxxx Xxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxx Trust
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
--------------------------
Title: President
--------------------------
/s/ Xxxxxx X'Xxxx
----------------------------
Xxxxxx X'Xxxx
/s/ Xxxxxxx Xxxx
----------------------------
Xxxxxxx Xxxx
/s/ Xxxxxx X'Xxxxxxxx
----------------------------
Xxxxxx X'Xxxxxxxx
/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
-21-
SCHEDULE I
SECURITIES HOLDINGS
Unit Purchase Price Seller's
Shares of Common-weal h ComVest Purchase to be Paid by Portion of Net Payment to
Seller Name; Address Common Stock Options Warrants Options Purchaser Broker Fee Seller
-------------------- ------------ ------- -------- ------- --------- ---------- ---------------
Comvest Venture 2,800,000 118,151 490,000 2.59000 $560,025.90 $14,000 $546,025.90
Partners, LP;
Xxx Xxxxx Xxxxxxxx, Xxx
000, Xxxx Xxxx Xxxxx,
XX 00000
RMC Capital LLC; C/O 2,000,000 350,000 0 $400,000 $10,000 $390,000
Xxxx Xxxx, 0000 X
Xxxxxxx Xx, Xxx 0, Xxx
Xxxxx, XX 00000
Siam Partners II; c/o 300,000 52,500 0 $60,000 $1,500 $58,500
XX Xxxx & Co, Inc, 000
Xxxx Xxxxxx Xx,
XXXX:0X, Xxxxxx,
XX 00000
Tahoe Partners; c/o 300,000 52,500 0 $60,000 $1,500 $58,500
XX Xxxx & Co, Inc, 000
Xxxx Xxxxxx Xx,
XXXX:0X, Xxxxxx,
XX 00000
Xxxxxxx Partners LP; 200,000 35,000 0 $40,000 $1,000 $39,000
ATTN: Xxxxx Xxxxxxx,
00000 Xxxxxxx Xxxxxx
Xx, Xxx 000, Xx Xxxxx,
XX 00000
-00-
Xxxx Xxxxxxxx Price Seller's
Shares of Common-weal h ComVest Purchase to be Paid by Portion of Net Payment to
Seller Name; Address Common Stock Options Warrants Options Purchaser Broker Fee Seller
-------------------- ------------ ------- -------- ------- --------- ---------- ---------------
Xxxxx Corp.; ATTN: 200,000 35,000 0 $40,000 $1,000 $39,000
Xxxxxxx Xxxxx, 0000 X
Xxxxxxx Xx, Xxx 0, Xxx
Xxxxx, XX 00000
Xxxxx Xxxxxx; 767 200,000 35,000 0 $40,000 $1,000 $39,000
Xxxxx Xxx, 00xx Xx,
Xxx Xxxx, XX 00000
Xxxxx Xxxxxx; 233 150,000 26,250 0 $30,000 $750 $29,250
Xxxxxxxx Xxxx, Xxxx
Xxxxx, XX 00000
Xxxxxxx X. XxXxxxxxx; 150,000 26,250 0 $30,000 $750 $29,250
000X Xxxxxx, Xxx 000,
Xxxx Xxxxx, XX 00000
Xxxxxxx Xxxxx Xxxxx; 100,000 17,500 0 $20,000 $500 $19,500
00 Xxxxxxxxx Xx,
Xxxxxx, Xx X0XX,
Xxxxxx Xxxxxxx
Xxxxx X. Xxxxxxx; 1175 100,000 17,500 0 $20,000 $500 $19,500
Xxxx Xxx, Xxx 00X, Xxx
Xxxx, XX 00000
Xxxxx X. Xxxxx Trust; 100,000 17,500 0 $20,000 $500 $19,500
00000 Xxxxxxxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx,
XX 00000
Xxxxxx X'Xxxx; 850 50,000 8,750 0 $10,000 $250 $9,750
Xxxx Xxxxxx, XxxXxxx,
XX 00000
-00-
Xxxx Xxxxxxxx Price Seller's
Shares of Common-weal h ComVest Purchase to be Paid by Portion of Net Payment to
Seller Name; Address Common Stock Options Warrants Options Purchaser Broker Fee Seller
-------------------- ------------ ------- -------- ------- --------- ---------- ---------------
Commonwealth 0 3.580907 $35.81 $0 $35.81
Associates LP; 000
Xxxxx Xxxxxx, XxxXxxx,
XX 00000
Xxxxxxx Xxxx; 600 0 0 1.105267 $11.05 $0 $11.05
Xxxxxx Xxx, Xxxx
Xxxxx, XX 00000
Xxxxxx X. Xxxxxxxx; 0 0 0.19222 $1.92 $0 $1.92
c/o Commonwealth
Associates, LP, 000
Xxxxx Xxx, 0xx Xx, Xxx
Xxxx, XX 00000
Xxxxx Xxxxxx; c/o 0 0.128147 $1.28 $0 $1.28
Commonwealth
Associates, LP, 000
Xxxxx Xxx, 0xx Xx, Xxx
Xxxx, XX 00000
Totals 6,650,000 118,151 1,163,750 7.596541 $1,330,075.96 $ 33,250 $1,296,825.96
-24-
