ROOMLINX, INC. SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
ROOMLINX,
INC.
This
Securities Purchase Agreement (this “Agreement”)
is made as of August 18, 2010 by and among RoomLinX, Inc., a Nevada corporation
(the “Company”),
and the investors signatory hereto.
In
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Purchase
and Sale of Securities.
1.1 Common
Stock Sale and Issuance. Subject to the terms and conditions
of this Agreement and in reliance on the representations and warranties set
forth or referred to herein, the Company hereby agrees to sell and issue to each
investor signatory hereto (collectively the “Investors”
and each, individually, an “Investor”),
and each Investor hereby severally agrees to purchase from the Company, the
number of shares of Common Stock of the Company, par value $.001 per share
(“Common
Stock”), set forth on the signature pages hereto at a purchase price of
$4.00 per share of Common Stock. (the “Purchase
Price”). The aggregate number of shares of Common Stock being
sold to all Investors hereunder (the “Securities”)
is 187,500 shares and the aggregate Purchase Price for such Securities is
$750,000.
1.2 Closing. The
closing of the purchase, sale and issuance of the Securities hereunder shall
take place at the offices of Xxxxxxxxx Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
(“WBEMS”),
170 0000 XXX Xxxxx, Xxxxxxxxx, XX 00000, simultaneous with the execution hereof
(the “Closing”). At
the Closing, the Company shall deliver to the Investors duly executed stock
certificates representing the Securities being purchased pursuant to Section
1.1 hereof, against delivery by the Investors to the Company of the
Purchase Price for such Securities by wire transfer to the Company’s account or
by such other method agreed to between the Investors and the Company and a legal
opinion, issued by counsel to the Company, in a form reasonably acceptable to
the Investors, the cost and expense of which shall be borne by the Investors up
to $2,000.
1.3 Defined
Terms Used in this Agreement. In
addition to the terms defined elsewhere in this Agreement, the following terms
used in this Agreement shall be construed to have the meanings set forth
below.
“Material
Adverse Effect” means any of (i) a material and adverse effect on
the legality, validity or enforceability of this Agreement or the Registration
Rights Agreement, (ii) a material and adverse effect on the results of
operations, assets, properties, business or condition (financial or otherwise)
of the Company and its subsidiaries, taken as a whole, or (iii) a material
and adverse impairment to the Company’s ability to perform on a timely basis its
obligations under this Agreement or the Registration Rights
Agreement.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended.
“Subsidiary”
means any “subsidiary,” as defined in Rule 1-02(x) of the Regulation S-X
promulgated by the Securities and Exchange Commission (the “Commission”)
under the Securities Exchange Act of 1934, as amended, of the
Company.
2. Representations
and Warranties of the Company. The
Company hereby represents and warrants to the Investors
that:
2.1 Organization,
Good Standing and Qualification. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada and has all requisite corporate power and
authority to carry on its business as presently conducted or proposed to be
conducted and to own or lease the properties and assets it now owns or holds
under lease. The Company is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure so to qualify
would have a Material Adverse Effect.
2.2 Capitalization. As
of the date hereof, the authorized capital stock of the Company consists
of:
(a) 5,000,000
shares of preferred stock, par value $.20 per share (“Preferred
Stock”), of which 720,000 shares have been designated as Series A
Preferred Stock, all of which are issued and outstanding, 2,000,000 shares have
been designated Series B Preferred Stock, none of which are issued and
outstanding, and 1,400 shares have been designated Series C Preferred Stock,
none of which are issued and outstanding, in each case immediately prior to the
execution hereof. All of the outstanding shares of Preferred Stock
have been duly authorized, are fully paid and nonassessable.
(b) 200,000,000
shares of Common Stock, of which 4,255,851 shares are issued and
outstanding. All of the outstanding shares of Common Stock have been
duly authorized, are fully paid and nonassessable.
2.3 Authorization. All
corporate action on the part of the Company necessary for the authorization,
execution, delivery and performance of the Transaction Documents (as defined
below) and the authorization, issuance and delivery of the Securities has been
taken, and no further consent or authorization is required by the Company, its
board of directors or its stockholders. The Transaction Documents,
when executed and delivered by the Company and assuming due execution and
delivery by the Investors, shall constitute a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other laws of general
application relating to or affecting the enforcement of creditors’ rights
generally, and as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
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2.4 Valid
Issuance of Securities. The
Securities, when issued, sold and delivered in accordance with the terms hereof
for the consideration expressed herein, will be duly and validly issued, fully
paid and nonassessable and free and clear of all liens, encumbrances and
restrictions on transfer, other than restrictions on transfer under applicable
state and federal securities laws or those created by the
Investors. The Securities will be issued in compliance with all
applicable United States federal and state securities laws and regulations and
rules of the OTB Bulletin Board. Neither the stockholders of the
Company, nor any other person or entity have any preemptive rights or rights of
first refusal with respect to the Securities or other rights to purchase or
receive any of the Securities or any other securities or assets of the
Company.
2.5 No
Conflicts. The execution, delivery and performance of this
Agreement and the Registration Rights Agreement (collectively, the “Transaction
Documents”) by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents,
or (ii) violate, conflict with, or constitute a breach or default (or an
event that with notice or lapse of time or both would become a breach or
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of,
any agreement, credit facility, debt or other instrument (evidencing a Company
or Subsidiary debt or otherwise) or other agreement or understanding to which
the Company or any Subsidiary is a party or by which any property or asset of
the Company or any Subsidiary is bound or affected, or (iii) result in a
violation of any law, rule, regulation, order, judgment, injunction, decree or
other restriction of any court or governmental authority to which the Company or
a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary
is bound or affected; except in the case of each of clauses (ii) and (iii),
as would not, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect.
2.6 Filings,
Consents and Approvals. The Company is not required to obtain
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other than
(i) the filing with the Commission of one or more Registration Statements
in accordance with the requirements of the Registration Rights Agreement,
(ii) filings required by state securities laws, (iii) the filing of a
Notice of Sale of Securities on Form D with the Commission under Regulation D of
the Securities Act, (iv) the filings required in accordance with Section
4.15 and (v) those that have been made or obtained prior to the date of
this Agreement.
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2.7 SEC
Reports; Financial Statements. The Company has filed all
reports required to be filed by it under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof (the foregoing
materials together with all other reports filed by the Company with the
Commission since January 1, 2009 being collectively referred to herein as the
“SEC
Reports” and,
together with the Schedules to this Agreement (if any), the “Disclosure
Materials”). The Company is current with its filing
obligations under the Exchange Act and all SEC Reports have been filed on a
timely basis or the Company has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports filed by the
Company with the Commission complied in all material respects with the
requirements of the Securities Act and the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and none of the SEC
Reports filed by the Company with the Commission, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the
SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements
have been prepared from the books and records of the Company in accordance with
United States Generally Accepted Accounting Principles (“GAAP”)
applied on a consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes thereto, and
fairly present in all material respects the financial position of the Company
and its consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit
adjustments. Except as set forth in the SEC Reports and for
liabilities or obligations incurred in the ordinary course of business since
June 30, 2010, neither the Company nor any of its Subsidiaries has any material
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be set forth on a consolidated balance sheet
of the Company or in the notes thereto. The disclosure contained in
Item 9A(b) (Management’s Report on Internal Control over Financial Reporting)
set forth in the Company’s most recent Annual Report on Form 10-K is true and
correct in all material respects.
2.8 Material
Changes. Since the date of the latest audited financial
statements included within the SEC Reports, except as set forth in the SEC
Reports, (i) the Company has not altered its method of accounting or the
identity of its auditors, (ii) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock, and (iii) the Company has not issued any equity
securities. The Company does not have pending before the Commission
any request for confidential treatment of information.
2.9 Litigation. There
is no action which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or the Securities
or (ii) could, if there were an unfavorable decision, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any Subsidiary, nor any director or
officer thereof (in his or her capacity as such), is or has been the subject of
any action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty. There has not
been, and to the knowledge of the Company, there is not pending any
investigation by the Commission involving the Company or any current or former
director or officer of the Company (in his or her capacity as
such).
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2.10 Compliance. Neither
the Company nor any Subsidiary (i) is in default under or in violation of
(and no event has occurred that has not been waived that, with notice or lapse
of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it
is in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of
any statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.
2.11 Regulatory
Permits. The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such permits could
not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such permits.
2.12 Patents
and Trademarks. The Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and other similar
rights that are necessary or material for use in connection with their
respective businesses as described in the SEC Reports and which the failure to
so have could, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). Neither the Company nor any Subsidiary has
received a written notice that the Intellectual Property Rights used by the
Company or any Subsidiary violates or infringes upon the rights of any
person. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another
person of any of the Intellectual Property Rights.
2.13 Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged. The Company has no reason to believe that it will not be
able to renew its and the Subsidiaries’ existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business on terms consistent with market for the
Company’s and such Subsidiaries’ respective lines of business. Schedule 2.13
lists and describes all insurance policies maintained by the
Company.
2.14 Transactions
With Affiliates and Employees. Except as set forth in the SEC
Reports, none of the officers or directors of the Company and, to the knowledge
of the Company, none of the employees of the Company, is presently a party to
any transaction with the Company or any Subsidiary (other than for services as
employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the
Company, any entity in which any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or
partner.
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2.15 Certain
Registration Matters. Assuming the accuracy of the Investors’
representations and warranties set forth in Section
3, no registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Investors under the Transaction
Documents. Except as set forth on Schedule
2.15 or as disclosed in the SEC Reports, the Company has not granted or
agreed to grant to any person any rights (including “piggy-back” registration
rights) to have any securities of the Company registered with the Commission or
any other governmental authority that have not been
satisfied.
2.16 Investment
Company. The Company is not, and is not an affiliate of, and
immediately following the Closing will not have become, an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended.
2.17 Application
of Takeover Protections. The Company has taken all necessary
action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s
Certificate of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Investors as a
result of the Investors and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including, without
limitation, the Company’s issuance of the Securities and the Investors’
ownership of the Securities.
2.18 Certain
Fees. No brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other person with respect to
the transactions contemplated by this Agreement. The Investors shall
have no obligation with respect to any fees or with respect to any claims (other
than such fees or commissions owed by an Investor pursuant to written agreements
executed by such Investor which fees or commissions shall be the sole
responsibility of such Investor) made by or on behalf of other persons for fees
of a type contemplated in this Section
2.18 that may be due in connection with the transactions contemplated by
this Agreement.
2.19 General
Solicitation. The Company has not offered or sold the
Securities by means of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or any other
general solicitation or general advertisement.
2.20 Foreign
Corrupt Practices Act. Neither the Company nor to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, has, directly or indirectly, (i) used any funds, or will use any
proceeds from the sale of the Securities, for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any person acting on the
Company’s behalf of which the Company is aware) or any members of their
respective management which is in violation of any legal requirement, or
(iv) has violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder.
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3.
Representations
and Warranties of the Investors. Each
Investor, severally and not jointly, hereby represents and warrants to the
Company that:
3.1 Authorization. Such
Investor has full power and authority to enter into and perform its obligations
under the Transaction Documents. The Transaction Documents, when
executed and delivered by such Investor, will constitute a valid and legally
binding obligation of such Investor, enforceable against such Investor in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors’ rights
generally, and as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
3.2 Disclosure
of Information. Such
Investor has had an opportunity to discuss the Company’s business, management,
financial affairs and the terms and conditions of the offering of the Securities
with the Company’s management and has had an opportunity to review the Company’s
facilities and has had all questions related thereto answered to the full
satisfaction of the Investor. Such Investor understands that such
discussions and any written information delivered by the Company to such
Investor were intended to describe the aspects of the Company’s business which
such Investor believes to be material. Such Investor understands that
no person other than the Company has been authorized to make any representation
and if made, such representation may not be relied on. The Company
has not, however, rendered any investment advice to the Investor with respect to
the suitability of the purchase of any of the Securities or an investment in the
Company.
3.3 Restricted
Securities. Such
Investor understands that the Securities have not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of such
Investor’s representations as expressed herein. Such Investor
understands that the Securities are “restricted securities” under applicable
U.S.
federal and state securities laws and that, pursuant to these laws, such
Investor must hold the Securities indefinitely unless they are registered with
the Commission and qualified by state authorities, or an exemption from such
registration and qualification requirements is available. Such
Investor acknowledges that the Company has no obligation to register or qualify
the Securities for resale except as contemplated by Section
4.2
hereof. Such Investor further acknowledges that if an exemption from
registration or qualification is available, it may be conditioned on various
requirements including, but not limited to, the time and manner of sale, the
holding period for the Securities, and on requirements relating to the Company
which are outside of such Investor’s control, and, other than the Company’s
obligation to timely file periodic reports in accordance with the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”), which
the Company is under no obligation and may not be able to
satisfy. Subject to the foregoing, nothing contained herein shall be
deemed a representation or warranty by the Investor to hold the Securities for
any period of time.
3.4 No
Need for Liquidity. Such
Investor has no need for liquidity in connection with its purchase of the
Securities. Such Investor has the ability to bear the economic risks
of its purchase of the Securities for an indefinite period to
time.
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3.5 Legends. Such
Investor understands that the Securities and any securities issued in respect of
or exchange for the Securities, may bear one or all of the following
legends:
(a)
“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR
OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT.”
(b) Any
legend required by the securities laws of any state to the extent such laws are
applicable to the shares represented by the certificate so
legended.
3.6 Accredited
Investor. Such
Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act (an “Accredited
Investor”) and either (i) was not organized for the specific purpose
of acquiring the Securities or (ii) each of its equity owners, members or
partners, as the case may be, is an Accredited Investor.
3.7 Brokers;
No General Solicitation. No
finder or broker was or is engaged by such Investor in connection with the
entering into of this Agreement by the Company and the
Investors. Such Investor is not purchasing the Securities as a result
of any advertisement, article, notice or other communication regarding the
Securities published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other general
solicitation or general advertisement.
4.
Miscellaneous.
4.1 Indemnification
of Investor. In addition to the indemnity provided in the
Registration Rights Agreement, the Company will indemnify and hold each Investor
and their respective directors, officers, shareholders, partners, employees,
affiliates and agents (each, an “Investor
Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation (collectively, “Losses”)
that any such Investor Party may suffer or incur as a result of or relating to
any material misrepresentation, breach or inaccuracy of any representation,
warranty, covenant or agreement made by the Company in any Transaction
Document. In addition to the indemnity contained herein, the Company
will reimburse each Investor Party for its reasonable legal and other expenses
(including the cost of any investigation, preparation and travel in connection
therewith) incurred in connection therewith, as such expenses are
incurred. Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section
4.1 shall be the same as those set forth in Section 5 of the Registration
Rights Agreement. Other than in the case of the Company’s willful
breaches of its covenants in this Agreement or the Company’s fraud, in no event
will the Company’s aggregate indemnity obligations to the Investor Parties
pursuant to this Agreement exceed $750,000 plus the reasonable legal expenses
incurred by one counsel to the Investors in connection with enforcing Investor’s
indemnity rights against the Company.
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4.2 Registration
Rights. The
Company and the Investors, concurrently with the execution of this Agreement,
shall enter into the Registration Rights Agreement in the form attached hereto
as Exhibit
A.
4.3 Furnishing
of Information. The Company shall use its commercially
reasonable efforts to comply with all requirements imposed upon it by the
Securities Act and the Exchange Act. Without limiting the generality
of the foregoing, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports
required to be filed by the Company pursuant to the Exchange Act. As
long as any Investor or any of their affiliates own any Securities, if the
Company is not required to file reports pursuant to the Exchange Act, it will
prepare and furnish to the Investors or such affiliates and make publicly
available in accordance with Rule 144(c) such information as is required for the
Investors or such affiliates to sell the Securities under Rule
144. The Company further covenants that it will take such further
action as any holder of Securities may reasonably request, all to the extent
required from time to time to enable such person to sell the Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144. The Company shall use its commercially
reasonable efforts to cause the Common Stock to continue to be listed and quoted
on the OTC Bulletin Board or another national securities
exchange.
4.4 Integration. The
Company shall not, and shall use its commercially reasonable efforts to ensure
that no affiliate of the Company shall, sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Investors, or that would be integrated
with the offer or sale of the Securities for purposes of the rules and
regulations of any trading market in a manner that would require stockholder
approval of the sale of the Securities to the Investors.
4.5 Subsequent
Registrations. Other than pursuant to the Registration
Statement (as defined in the Registration Rights Agreement), prior to the
Effective Date, the Company may not file any registration statement (other than
on Form S-8) with the Commission with respect to any securities of the
Company. The Investors agree that the Common Stock set forth on Schedule
2.15 may be included on the registration statement filed by the Company
registering the resale of the Securities.
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4.6 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the
Securities will result in dilution of the outstanding shares of Common Stock,
which dilution may be substantial.
4.7 Limitation
of Liability. Notwithstanding anything herein to the contrary,
the Company acknowledges and agrees that the liability of an Investor arising
directly or indirectly, under any Transaction Document of any and every nature
whatsoever shall be satisfied solely out of the assets of such Investor, and
that no trustee, officer, other investment vehicle or any other affiliate of
such Investor or any investor, stockholder or holder of shares of beneficial
interest of such Investor shall be personally liable for any liabilities of such
Investor.
4.8 Successors
and Assigns. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
hereto. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this
Agreement.
4.9 Governing
Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof, except to the extent the laws of the
State of Nevada are mandatorily applicable. Each party agrees that all
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, employees or agents) will be commenced in
the New York Courts (as defined in the Registration Rights Agreement). Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the New
York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any proceeding, any claim
that it is not personally subject to the jurisdiction of any New York Court, or
that such proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby. If
either party shall commence a proceeding to enforce any provisions of this
Agreement, then the prevailing party in such proceeding shall be reimbursed by
the other party for its attorney’s fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such
proceeding.
10
4.10 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
4.11 Titles
and Subtitles. The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
4.12 Notices. Any
notice required or permitted by this Agreement shall be in writing and shall be
deemed sufficient upon delivery, when delivered personally or by overnight
courier or sent by
fax (upon customary confirmation of receipt), or 48 hours after being deposited
in the U.S. mail, as certified or registered mail, with postage prepaid,
addressed to the party to be notified at such party’s address as set forth on
the signature page hereto, or as subsequently modified by written notice, and if
to the Company, with a copy to Xxxxxxxxx Ball Xxxxxx Xxxxxx and Xxxxxxxxxx, LLP,
0000 XXX Xxxxx, Xxxxxxxxx, XX 00000 Attn: Xxxx Xxxxxx, Esq., and if to an
Investor, with a copy to Sidley Austin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxxx, Facsimile Number: (000)
000-0000.
4.13 Securities
Laws Disclosure; Press Release. The Company will file a
Current Report on Form 8-K, disclosing the material terms of this Agreement, the
Registration Rights Agreement and the transactions contemplated thereby by 5:30
New York City time on the fourth business day after the date
hereof. The Company may issue a press release regarding the
transactions contemplated hereby using Investors’ names, provided, that any such
press release is subject to Investors’ prior review and
approval.
4.14 Use
of Proceeds. The
Company will use the net proceeds received by it hereunder for working capital
and general corporate purposes.
4.15 Entire
Agreement; Amendments; Waivers. This
Agreement constitutes the entire agreement among the parties hereto pertaining
to the subject matter hereof, and any and all other prior or contemporaneous
written or oral agreements relating to the subject matter hereof existing
between the parties hereto are expressly canceled. This Agreement may
not be amended, modified or waived except by an instrument in writing signed by
each of the parties hereto.
4.16 Fees
and Expenses. Each party shall pay the fees and expenses of
its advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of the Transaction Documents, except as
otherwise provided in the Registration Rights Agreement and Section 1.2 of this
Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the sale of the Securities.
4.17 Severability. If
any provision of this Agreement is construed to be invalid, illegal or
unenforceable, then the remaining provisions hereof shall not be affected
thereby and shall be enforceable without regard thereto.
[SIGNATURE
PAGES FOLLOW]
11
IN
WITNESS WHEREOF, the parties have executed this Securities Purchase Agreement as
of the date first written above.
|
THE
COMPANY:
|
|||
| ROOMLINX, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Executive Officer
|
|||
| Address: | |||
| 0000 X. 0xx Xxx., Xxxx X | |||
| Xxxxxxxxxx, XX 00000 | |||
[Signature Page to
RoomLinX Securities Purchase Agreement]
| THE INVESTORS: | |||
| VERITION MULTI-STRATEGY MASTER FUND LTD. | |||
| By: |
Verition
Fund Management LLC,
|
||
| its investment manager | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
|
Name:
Xxxx Xxxxxxxxx
|
|||
|
Title:
COO
|
|||
|
Address:
|
|||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
| Number of Shares of Common Stock Purchased: 87,500 | |||
| Total Purchase Price: $350,000 | |||
| XXXXXX ADVISORS LLC | |||
| By: | Verition Fund Management LLC, | ||
| its investment manager | |||
|
|
By:
|
/s/ Xxxx Xxxxxxxx | |
|
Name:
Xxxx Xxxxxxxxx
|
|||
|
Title:
COO
|
|||
|
Address:
|
|||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
|
Xxxxxxxxx,
XX 00000
|
|||
| Number of Shares of Common Stock Purchased: 67,500 | |||
| Total Purchase Price: $270,000 | |||
[Signature Page to RoomLinX
Securities Purchase Agreement]
|
THE
INVESTORS (continued):
|
|||
| ARCEUS PARTNERSHIP | |||
|
|
By:
|
/s/ Manousos Vourkoutiotis | |
|
Name:
Manousos Vourkoutiotis
|
|||
|
Title:
Partner
|
|||
| Address: | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
| Number of Shares of Common Stock Purchased: 27,500 | |||
| Total Purchase Price: $110,000 | |||
| XXX XXXXX | |||
| /s/ Xxx Xxxxx | |||
| Xxx Xxxxx | |||
| Address: | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
| Number of Shares of Common Stock Purchased: 2,500 | |||
| Total Purchase Price: $10,000 | |||
[Signature Page to RoomLinX
Securities Purchase Agreement]
|
THE
INVESTORS (continued):
|
||
| XXXX XXXXXXXXX | ||
| /s/ Xxxx Xxxxxxxxx | ||
| Xxxx Xxxxxxxxx | ||
| Address: | ||
| C/O Verition Fund Management LLC | ||
| 0 Xxxxxxxx Xxxx | ||
|
Xxxxxxxxx,
XX 00000
|
||
| Number of Shares of Common Stock Purchased: 2,500 | ||
| Total Purchase Price: $10,000 |
[Signature Page to RoomLinX
Securities Purchase Agreement]
Exhibit
A
Form
of Registration Rights Agreement
