EXHIBIT 1
COMMON STOCK PURCHASE AGREEMENT (the "Agreement") dated as of June 30,
2004, by and among Media Sciences International, Inc., a Delaware corporation
(the "Seller"), and GFX Investments, LLC, a Delaware limited liability company
("Purchaser").
WITNESSETH:
WHEREAS, the Seller desires to sell to the Purchaser and the Purchaser
desires to purchase an aggregate of 1,000,000 shares of Seller's Common Stock,
par value $0.01 per share (the "Common Stock").
NOW, THEREFORE, in consideration of the mutual promises and
representations, warranties, covenants and agreements set forth herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I - PURCHASE AND SALE
1.1 PURCHASE AND SALE. On the terms and subject to the conditions
set forth in this Agreement, at the Closing (as defined in Section 1.3), the
Seller will sell, assign, transfer and deliver and Purchaser will purchase
1,000,000 shares of Seller's Common Stock (the "Shares") for the purchase price
set forth in Section 1.2.
1.2 PURCHASE PRICE. The aggregate consideration (the "Purchase
Price") to be paid by Purchaser for the sale, assignment, transfer and delivery
of the Shares by the Sellers to Purchaser as provided herein shall be One
Million Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000) paid to the
Seller in cash by cashier or bank check or wire transfer of immediately
available funds.
1.3 THE CLOSING. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of Boult, Cummings,
Xxxxxxx & Xxxxx, PLC, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx, at
10:00 a.m. local time on June 30, 2004 (the "Closing Date"), or such other time,
date and place as the parties may agree in writing, provided that all conditions
to the Closing have been satisfied or waived in writing.
1.4 DELIVERIES.
(a) DELIVERIES BY THE SELLER. At the Closing, the Seller shall
deliver or cause to be delivered to Purchaser the following:
1. Irrevocable instruction letter to the Company's transfer
agent, accompanied by an appropriate legal opinion, for the
issuance of one certificate evidencing 1,000,000 Shares of
Common Stock, duly authorized, issued, fully paid and
non-assessable, registered in the name of Purchaser;
2. The Registration Rights Agreement, in the form attached hereto
as EXHIBIT A (the "Registration Rights Agreement"), duly
executed by the Seller.
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3. A legal opinion of Law Offices of Xxx Xxxxxxx ("Seller's
Counsel"), counsel to the Seller, in form and substance
satisfactory to the Purchaser.
4. A certificate of the Secretary of the Seller (the "Secretary's
Certificate"), in form and substance satisfactory to the
Purchaser, certifying as follows:
(i) that attached to the Secretary's Certificate is a
true and complete copy of the Certificate of
Incorporation of the Seller, as amended to date,
including all certificates of designation and
documents or instruments amending or restating the
Certificate of Incorporation of the Seller;
(ii) that a true copy of the Bylaws of the Seller, as
amended to the date hereof, is attached to the
Secretary's Certificate;
(iii) that attached thereto are true and complete copies of
the resolutions of the Board of Directors of the
Seller (A) authorizing the execution, delivery and
performance of this Agreement and the Registration
Rights Agreement, instruments and certificates
required to be executed by it in connection herewith
and approving the consummation of the transactions in
the manner contemplated hereby including, but not
limited to, the authorization and issuance of the
Common Stock;
(vi) at the Closing, that the representations and
warranties herein are true and complete as of the
date thereof, and that there has not occurred any
event which has had a Material Adverse Effect on the
Seller or any Subsidiary,
(vii) such other matters as the Purchaser may reasonably
request.
5. Such other documents as the Purchaser shall reasonably
request.
(b) DELIVERIES BY THE PURCHASER. At the Closing, Purchaser shall
deliver or cause to be delivered to the Seller payment of the Purchase Price in
cash by either (x) wire transfer of immediately available funds to an account
designated in writing by Seller prior to the date hereof, or (y) bank or
cashier's check; (ii) an executed copy of this Agreement; and (iii) an executed
copy of the Registration Rights Agreement.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser as follows:
2.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY; COMPLIANCE WITH
LAW. Seller is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Seller is duly
licensed or qualified to do business as a foreign corporation and is in good
standing under the laws of any other state of the United States in
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which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the business, results of operations or financial condition of
Seller and its subsidiaries taken as a whole (a "Material Adverse Effect. Each
of Seller's subsidiaries ("Subsidiaries") is a corporation, partnership or
limited liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, has the
corporate or partnership power and authority to own its properties and to carry
on its business as it is now being conducted, and is duly qualified to do
business and is in good standing in each jurisdiction in which the ownership of
its property or the conduct of its business requires such qualification, except
for jurisdictions in which such failure to be so qualified or to be in good
standing would not have a Material Adverse Effect on Seller. Neither Seller nor
any Subsidiary is in violation in any material respect of any order of any
court, governmental authority or arbitration board or tribunal, or any law,
ordinance, governmental rule or regulation to which Seller or any of its
Subsidiaries or any of their respective properties or assets is subject. Seller
and its Subsidiaries have obtained all licenses, permits and other
authorizations and have taken all actions required by applicable law or
governmental regulations in connection with their business as now conducted. The
copies of Seller's Certificate of Incorporation and Bylaws delivered to
Purchaser in connection herewith are true and correct.
2.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Seller has
the requisite corporate power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby and to perform
its obligations hereunder and thereunder. The consummation by Seller of the
transactions contemplated hereby has been duly authorized by all requisite
corporate action. This Agreement constitutes, and all agreements and documents
contemplated hereby (when executed and delivered pursuant hereto for value
received) will constitute, the valid and legally binding obligations of Seller,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
2.3. CAPITALIZATION. The authorized capital stock of Seller
consists of 20,000,000 shares of Common Stock, $0.001 par value ("Seller Common
Stock"), and 5,000,000 shares of Preferred Stock, $0.001 par value ("Seller
Preferred Stock"). As of the date of this Agreement, there were 8,857,210 shares
of Seller's Common Stock and zero shares of Seller Preferred Stock, issued and
outstanding. Seller has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of Seller on any matter, other than outstanding warrants and
options (including out-of-the-money warrants and options) to purchase up to
3,625,158 shares of common stock. All issued and outstanding shares of Seller
Common Stock are duly authorized, validly issued, fully paid, nonassessable and
free of preemptive rights.
2.4. SUBSIDIARIES. Seller owns directly or indirectly all of the
outstanding shares of capital stock or membership or partnership interests of
each of Seller's Subsidiaries. As applicable, each of the outstanding shares of
capital stock of each of Seller's Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable, and each share or interest is owned,
directly or indirectly, by Seller free and clear of all liens, pledges, security
interests, claims or
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other encumbrances other than liens imposed by local law which are not material.
The name and jurisdiction of incorporation of each Subsidiary of Seller is
attached hereto as Schedule 1.4.
2.5. OTHER INTERESTS. Except for interests in the Seller
Subsidiaries, neither Seller nor any Seller Subsidiary owns directly or
indirectly any interest or investment (whether equity or debt) in any
corporation, partnership, joint venture, business, trust or entity (other than
investments in short-term investment securities and corporate partnering,
development, cooperative marketing and similar undertakings and arrangements
entered into in the ordinary course of business).
2.6. NO VIOLATION. Neither the execution and delivery by Seller of
this Agreement, nor the consummation by Seller of the transactions contemplated
hereby in accordance with the terms hereof, will: (i) conflict with or result in
a breach of any provisions of the Certificate of Incorporation or Bylaws of
Seller; (ii) violate, conflict with, result in a breach of any provision of,
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, result in the termination or in a right of
termination or cancellation of, accelerate the performance required by, result
in the creation of any lien, security interest, charge or encumbrance upon any
of the material properties of Seller or its Subsidiaries under, or result in
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any material license, franchise, permit, lease, contract, agreement or
other instrument, preemptive right, commitment or obligation to which Seller or
any of its Subsidiaries is a party, or by which Seller or any of its
Subsidiaries or any of their respective properties is bound or affected; or
(iii) require any material consent, approval or authorization of, or
declaration, filing or registration with, any domestic governmental or
regulatory authority.
2.7. SEC DOCUMENTS. Seller has delivered (incorporated by reference
to the Seller's filings as reported on the SEC's web site) to Purchaser each
registration statement, report, proxy statement or information statement
prepared and filed with the Securities and Exchange Commission by it since June
30, 2003, including, without limitation, its Annual Report on Form 10-KSB for
the year ended June 30, 2003, each in the form (including exhibits and any
amendments thereto) filed with the SEC (collectively, the "Seller Reports"). As
of their respective dates, the Seller Reports (i) complied as to form in all
material respects with the applicable requirements of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. Each of the consolidated balance
sheets included in or incorporated by reference into the Seller Reports
(including the related notes and schedules) fairly presents, in all material
respects, the consolidated financial position of Seller and its Subsidiaries as
of its date, and each of the consolidated statements of income, retained
earnings and cash flows included in or incorporated by reference into the Seller
Reports (together with the related notes and schedules) fairly presents, in all
material respects, the results of operations, retained earnings or cash flows,
as the case may be, of Seller and its Subsidiaries for the periods set forth
therein (subject to the lack of footnote disclosure and normal year-end audit
adjustments which would not be material in amount or effect), in each case in
accordance with generally
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accepted accounting principles consistently applied during the periods involved,
except as may be noted therein. Except as and to the extent set forth in the
consolidated balance sheet of Seller and its Subsidiaries at June 30, 2003,
including all notes thereto, or as set forth in the Seller Reports, neither
Seller nor any of its Subsidiaries has any material liabilities or obligations
of any nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of Seller
or in the notes thereto, prepared in accordance with generally accepted
accounting principles consistently applied, except liabilities arising in the
ordinary course of business since such date.
2.8. LITIGATION. There are no actions, suits or proceedings pending
against Seller or its Subsidiaries or, to the knowledge of Seller, threatened
against Seller or any of its Subsidiaries, at law or in equity, or before or by
any federal or state commission, board, bureau, agency or instrumentality, that
are reasonably likely to have a Seller Material Adverse Effect.
2.9. ABSENCE OF CERTAIN CHANGES. Since June 30, 2003, Seller has
conducted its business only in the ordinary course of such business, and, other
than as set forth in the Seller Reports, there has not been (i) any Seller
Material Adverse Effect; (ii) any declaration, setting aside or payment of any
dividend or other distribution with respect to its capital stock; or (iii) any
material change in its accounting principles, practices or methods. In June
2004, Seller permitted an elderly former preferred shareholder who did not
timely accept Seller's offer of conversion concluded on December 31, 2003 to
resolve the matter by issuing 250,000 unregistered shares of common stock in
return for repayment of dividends and other consideration, such that, Seller and
the former preferred shareholder are in similar positions as if the former
preferred shareholder had accepted the offer of conversion on December 31, 2003.
2.10. TAXES. Seller and each of its Subsidiaries (i) have timely
filed all material federal, state and foreign tax returns required to be filed
by any of them for tax years ended prior to the date of this Agreement or
requests for extensions have been timely filed and any such request shall have
been granted and not expired, and all such returns are complete in all material
respects, (ii) have paid or accrued all taxes shown to be due and payable on
such returns, (iii) have properly accrued all such taxes for such periods
subsequent to the periods covered by such returns, and (iv) have no "open" years
for federal income tax returns.
2.11. LABOR MATTERS. Neither Seller nor any of its Subsidiaries is a
party to, or bound by, any collective bargaining agreement, contract or other
agreement or understanding with a labor union or labor organization. There is no
unfair labor practice or labor arbitration proceeding pending or, to the actual
knowledge of the executive officers of Seller, threatened against Seller or its
Subsidiaries relating to their business. To the actual knowledge of the
executive officers of Seller, there are no organizational efforts with respect
to the formation of a collective bargaining unit presently being made or
threatened involving employees of Seller or any of its Subsidiaries.
2.12. SELLER COMMON STOCK. The issuance and delivery by Seller of
all shares of Seller Common Stock to be issued in connection with this Agreement
have been duly and validly authorized by all necessary corporate action on the
part of Seller and no shareholder approval is required in connection therewith.
The shares of Seller Common Stock to be issued in connection
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with this Agreement, when issued in accordance with the terms of this Agreement,
will be validly issued, fully paid and nonassessable, and issued without
violation of any preemptive right of any other person or entity. Seller has more
than 300 shareholders of record and, to the best knowledge of Seller, no 20
individual shareholders (excluding Purchaser), together with their family
members and affiliates, together own, directly or indirectly through one or more
affiliates, shares of Seller Common Stock carrying fixed entitlements to more
than 75% of Seller's income, capital or voting rights.
2.13. NO BROKERS. Seller has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligations of Seller to pay any finder's fees, brokerage or agent's commissions
or other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby. Seller is
not aware of any claim for payment of any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby.
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants as follows:
3.1 EXISTENCE AND POWER. The Purchaser is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Purchaser of this Agreement, the Related Documents to which the Purchaser is a
party, and the consummation by the Purchaser of the transactions contemplated
hereby have been duly authorized, and no additional action is required for the
approval of this Agreement by the Purchaser. This Agreement and the related
documents to which the Purchaser is a party have been or, to the extent
contemplated hereby, will be duly executed and delivered and constitute valid
and binding agreements of the Purchaser, enforceable against the Purchaser in
accordance with their terms, except as may be limited by bankruptcy,
reorganization, insolvency, moratorium and similar laws of general application
relating to or affecting the enforcement of rights of creditors and except that
enforceability of their obligations thereunder are subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3.3 INVESTMENT. The Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale in connection with,
any distribution thereof, nor with the intention of distributing or reselling
the same, provided, however, that by making the representation herein, the
Purchaser does not agree to hold any of the Shares for any minimum or other
specific term and reserves the right to dispose of the Shares at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act of 1933, as amended ("Securities Act"). The Purchaser is
aware that none of the Shares has been registered under the Securities Act or
under applicable state securities or blue sky laws, and that the Shares
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will bear appropriate restrictive legend. The Purchaser is an "Accredited
Investor" as such term is defined in Rule 501 of Regulation D, as promulgated
under the Securities Act.
3.4 RELIANCE ON EXEMPTIONS. The Purchaser understands that the
Common Stock is being offered and sold to the Purchaser in reliance upon
specific exemptions from the registration requirements of United States federal
and state securities laws and that the Seller is relying upon the truth and
accuracy of, and the Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Purchaser to acquire the Securities.
3.5 EXPERIENCE OF THE PURCHASER. The Purchaser has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
Securities, and has so evaluated the merits and risks of such investment. The
Purchaser is able to bear the economic risk of an investment in the Securities
and, at the present time, is able to afford a complete loss of such investment.
ARTICLE IV - COVENANTS OF THE SELLER
4.1 PUBLIC ANNOUNCEMENTS. Neither the Purchaser nor the Seller
shall (and each such party shall use its reasonable efforts to cause its
Subsidiaries, affiliates, directors, officers, employees and authorized
representatives not to), issue any press release, make any public announcement
or furnish any written statement to its employees or stockholders generally
concerning the transactions contemplated by this Agreement without the consent
of the other party (which consent shall not be unreasonably withheld), except to
the extent required by applicable law or as otherwise contemplated herein (and
in either such case such party shall, to the extent consistent with timely
compliance with such requirement, consult with the other party prior to making
the required release, announcement or statement).
4.2 TAXES AND CLAIMS. All liabilities for income tax attributable
to the sale of the Shares by the Seller to Purchaser pursuant to this Agreement
shall be and remain the sole liability of the Seller and Purchaser shall have no
responsibility therefor.
4.3 PURCHASER REPRESENTATIVE ON BOARD OF DIRECTORS. At and as a
condition to the Purchaser's obligations to carry out the Closing, Mr. Xxxx
Bazaar shall be elected to the Board of Directors of the Seller. Seller shall
take all necessary action for the election of Mr. Bazaar to the Board prior to
Closing.
4.4 STATE SECURITIES LAWS. The Seller shall timely prepare and
file such applications, consents to service of process and similar documents and
take such other steps and perform such further acts with respect to the sale of
the Shares under this Agreement as shall be required by the state securities law
requirements of the jurisdiction where the Purchaser resides.
4.5 ANTIDILUTION. In the event, at any time and from time to time,
that Seller shall issue shares of Seller Common Stock to former holders of
Seller's Series A Preferred Stock in consideration of their Series A Preferred
Stock ("Additional Issuance"), Seller shall immediately issue additional shares
of Common Stock to Purchaser so that the percentage of the Seller
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Common Stock represented by the 1,000,000 shares of Seller Common Stock acquired
at Closing following such additional issuance to Purchaser shall be the same as
the percentage of Seller Common Stock represented by the 1,000,000 Seller Common
Stock acquired at Closing. For example, Seller is acquiring 1,000,000 shares,
representing 10.1448585% (1,000,000/ (8,857,210 + 1,000,000)) of the outstanding
after issuance, and if Seller issues 200,000 shares as an Additional Issuance to
former Series A preferred stock holders, Seller shall be immediately issued an
additional 22,580 shares. (1,000,000 + 22,580) / (9,857,210 + 200,000 + 22,580)
= 10.1448585%.
4.6 FURTHER ASSURANCES. The Seller shall, at its cost and expense,
upon written request of the Purchaser, duly execute and deliver, or cause to be
duly executed and delivered, to the Purchaser such further instruments and do
and cause to be done such further acts as may be necessary, advisable or proper,
in the reasonable discretion of the Purchaser, to carry out more effectually the
provisions and purposes of this Agreement.
ARTICLE V - INDEMNIFICATION AND TERMINATION
5.1 SURVIVAL OF REPRESENTATIONS. Except as otherwise provided
herein, the representations and warranties of the Seller and the Purchaser
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing Date and shall continue in full force
and effect for a period of two (2) years from the Closing; provided, however,
that the Seller's warranties and representations under Sections 2.10 (Taxes),
2.4 (Subsidiaries) and 2.3 (Capitalization), shall survive the Closing Date and
continue in full force and effect until the expiration of all applicable
statutes of limitation. The Seller's warranties and representations shall in no
way be affected by any investigation of the subject matter thereof made by or on
behalf of the Seller or the Purchaser.
5.2 INDEMNIFICATION. (a) The Seller agrees to indemnify and hold
harmless the Purchaser, its affiliates, each of its officers, directors,
employees and agents and their respective successors and assigns, from and
against any losses, damages, or expenses which are caused by or arise out of (i)
any breach or default in the performance by the Seller or any Subsidiary of any
covenant or agreement made by the Seller or any Subsidiary in this Agreement or
in any of the documents contemplated hereby; (ii) any breach of warranty or
representation made by the Seller or any Subsidiary in this Agreement or in any
of the documents contemplated hereby, and (iii) any and all third party actions,
suits, proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal fees and expenses) incident to any of the foregoing.
(b) The Purchaser agrees to indemnify and hold harmless
the Seller, its affiliates, each of its officers, directors, employees and
agents and their respective successors and assigns, from and against any third
party losses, damages, or expenses which are caused by or arise out of (A) any
breach or default in the performance by the Purchaser of any covenant or
agreement made by the Purchaser in this Agreement or in any of the documents
contemplated hereby; (B) any breach of warranty or representation made by the
Purchaser in this Agreement or in any of the documents contemplated hereby; and
(C) any and all third party actions, suits, proceedings, claims, demands,
judgments, costs and expenses (including reasonable legal fees
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and expenses) incident to any of the foregoing, provided, however, that in no
event shall Purchaser's liability hereunder exceed the Purchase Price paid by
the Purchaser.
5.3 INDEMNITY PROCEDURE. (a) A party or parties hereto agreeing to
be responsible for or to indemnify against any matter pursuant to this Agreement
is referred to herein as the "Indemnifying Party" and the other party or parties
claiming indemnity is referred to as the "Indemnified Party".
(b) An Indemnified Party under this Agreement shall, with
respect to claims asserted against such party by any third party, give written
notice to the Indemnifying Party of any liability which might give rise to a
claim for indemnity under this Agreement within sixty (60) business days of the
receipt of any written claim from any such third party, but not later than
twenty (20) days prior to the date any answer or responsive pleading is due, and
with respect to other matters for which the Indemnified Party may seek
indemnification, give prompt written notice to the Indemnifying Party of any
liability which might give rise to a claim for indemnity; provided, however,
that any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying Party are
materially prejudiced.
(c) The Indemnified Party shall have the right to conduct
and control, through counsel of its choosing, the defense, compromise or
settlement of any third Person claim, action or suit against such Indemnified
Party as to which indemnification will be sought by any Indemnified Party from
any Indemnifying Party hereunder, and in any such case the Indemnifying Party
shall cooperate in connection therewith and shall furnish such records,
information and testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be reasonably requested by the Indemnified
Party in connection therewith; provided, that the Indemnifying Party may
participate, through counsel chosen by it and at its own expense, in the defense
of any such claim, action or suit as to which the Indemnified Party has so
elected to conduct and control the defense thereof; and provided, further, that
the Indemnified Party shall not, without the written consent of the Indemnifying
Party (which written consent shall not be unreasonably withheld), pay,
compromise or settle any such claim, action or suit, except that no such consent
shall be required if, following a written request from the Indemnified Party,
the Indemnifying Party shall fail, within 14 days after the making of such
request, to acknowledge and agree in writing that, if such claim, action or suit
shall be adversely determined, such Indemnifying Party has an obligation to
provide indemnification hereunder to such Indemnified Party. Notwithstanding the
foregoing, the Indemnified Party shall have the right to pay, settle or
compromise any such claim, action or suit without such consent, provided, that
in such event the Indemnified Party shall waive any right to indemnity therefor
hereunder unless such consent is unreasonably withheld.
(d) The parties agree to cooperate in defending such
third party claims, and the Indemnified Party shall provide such cooperation and
such access to its books, records and properties as the Indemnifying Party shall
reasonably request with respect to any matter for which indemnification is
sought hereunder; and the parties hereto agree to cooperate with each other in
order to ensure the proper and adequate defense thereof.
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(e) With regard to claims of third parties for which
indemnification is payable hereunder, such indemnification shall be paid by the
Indemnifying Party upon the earlier to occur of: (i) the entry of a judgment
against the Indemnified Party and the expiration of any applicable appeal
period, or if earlier, five (5) days prior to the date that the judgment
creditor has the right to execute the judgment; (ii) the entry of an
unappealable judgment or final appellate decision against the Indemnified Party;
or (iii) a settlement of the claim. Notwithstanding the foregoing, the
reasonable fees and disbursements of counsel to the Indemnified Party shall be
reimbursed on a current basis by the Indemnifying Party if such fees and
disbursements are a liability of the Indemnifying Party. With regard to other
claims for which indemnification is payable hereunder, such indemnification
shall be paid promptly by the Indemnifying Party upon demand by the Indemnified
Party.
ARTICLE VI - MISCELLANEOUS
6.1 FURTHER ASSURANCES. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
6.2 FEES AND EXPENSES. Seller shall be responsible for the payment
of Seller's legal fees and expenses relating to the preparation and negotiation
of this Agreement, and for the payment of Purchaser's reasonable legal fees and
expenses relating to the preparation and negotiation of this Agreement in the
amount of up to $7,500. Purchaser shall be responsible for all other of
Purchaser's legal fees and expenses.
6.3 NOTICES. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earliest of (a) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 5:00 p.m. (New York City
time) on a business day, (b) the next business day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a business day
or later than 5:00 p.m. (New York City time) on any business day, or (c) the
business day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service such as Federal Express. The address for
such notices and communications shall be as follows:
If to the Purchaser, to: If to the Seller, to:
GFX Investments, LLC Media Sciences International, Inc.
c/o Xxxxxxx X. Xxxxx Investments, LLC 00 Xxxxxxxx Xxxx
100 First Stamford Place Allendale, New Jersey
Xxxxxxxx, Xx. 00000 Att'n: Xxxxxxx X. Xxxxx
Att'n: Xxxx Bazaar Fax No.: 000-000-0000
Fax No.: 000-000-0000
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With a copy to: With a copy to:
Boult, Cummings, Xxxxxxx & Xxxxx, PLC Law Offices of Xxx Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000 00 Xxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 000000 Xxx Xxxx, XX 00000
Xxxxxxxxx, Xxxxxxxxx 00000 Att'n: Xxx Xxxxxxx, Esq.
Att'n: Xxxxx Xxxxx, Esq. Fax No.: 000-000-0000
Fax No.: 000-000-0000
Unless otherwise stated above, such communications shall be effective when they
are received by the addressee thereof in conformity with this Section. Any party
may change its address for such communications by giving notice thereof to the
other parties in conformity with this Section.
6.4 GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and enforced in accordance with the laws of the State of Delaware without
reference to the choice of law principles thereof.
6.5 SUCCESSORS AND ASSIGNS. This Agreement is personal to each of
the parties and may not be assigned without the written consent of the other
parties; provided, however, that Purchaser shall be permitted to assign their
rights under this Agreement to any affiliate of the Purchaser.
6.6 SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall continue in full force and effect and in
no way be affected, impaired or invalidated.
6.7 ENTIRE AGREEMENT. This Agreement and the other agreements and
instruments referenced herein constitute the entire understanding and agreement
of the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings.
6.8 OTHER REMEDIES. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party shall be deemed cumulative
with and not exclusive of any other remedy conferred hereby or by law, or in
equity on such party, and the exercise of any one remedy shall not preclude the
exercise of any other.
6.9 AMENDMENT AND WAIVERS. Any term or provision 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 by a writing signed by the Seller and the Purchaser. The
waiver by a party of any breach hereof or default in the performance hereof
shall not be deemed to constitute a waiver of any other default or any
succeeding breach or default. This Agreement may not be amended or supplemented
by any party hereto except pursuant to a written amendment executed by the
Seller and Purchaser.
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6.10 NO WAIVER. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
6.11 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 of the parties reflected hereon as signatories. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
6.12 NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
6.13 GENDER, SINGULAR AND PLURAL. The use of any gender shall be
construed to include all other genders, unless the context clearly indicates
that less than all the genders is intended. The use of the singular or the
plural shall include both the singular and the plural unless the context clearly
indicates that only the singular or only the plural is intended.
[SIGNATURE PAGE FOLLOWS:]
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IN WITNESS WHEREOF, the parties hereto have executed this Common Stock
Purchase Agreement as of the date first above written.
PURCHASER: SELLER:
GFX INVESTMENTS, LLC, a Delaware limited MEDIA SCIENCES INTERNATIONAL, INC., a
liability company Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Managing Member Title: President
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SCHEDULE 1.4
Subsidiaries State of Incorporation
Cadapult Graphic Systems, Inc. NJ
Media Sciences, Inc. NJ
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