SECURITIES PURCHASE AGREEMENT
Exhibit
10.1
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is dated as of the 5th
day of December 2019, by and between ENDRA Life Sciences Inc., a
Delaware corporation (the “Company”), and each individual or entity named on the
Schedule of Buyers attached hereto (each such individual or
entity, individually, a “Buyer” and all of such individuals
or entities, collectively, the “Buyers”).
RECITALS
Subject
to the terms and conditions set forth in this Agreement and
pursuant to Section 4(a)(2) of the Securities Act of 1933, as
amended (the “Securities
Act”), and Rule 506(b) promulgated thereunder, the
Company desires to issue and sell to each Buyer, and each Buyer,
severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereinafter expressed and other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, each intending to be
legally bound, agree as follows:
ARTICLE
I
RECITALS, EXHIBITS, SCHEDULES
The
foregoing recitals are true and correct and, together with the
Schedules and Exhibits referred to hereafter, are hereby
incorporated into this Agreement by this reference.
ARTICLE
II
DEFINITIONS
For
purposes of this Agreement, except as otherwise expressly provided
or otherwise defined elsewhere in this Agreement, or unless the
context otherwise requires, the capitalized terms in this Agreement
shall have the meanings assigned to them in this Article as
follows:
2.1 “Affiliate” means any Person that,
directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as
such terms are used in and construed under Rule 405 under the
Securities Act.
2.2 “Assets” means all of the
properties and assets of the Company and its Operating Subs,
whether real, personal or mixed, tangible or intangible, wherever
located, whether now owned or hereafter acquired.
2.3 “Buyer’s Purchase Price”
shall mean, with respect to any Buyer, the “Purchase
Price” opposite such Buyer’s name on the Schedule of
Buyers.
2.4 “Claims” means any Proceedings,
Judgments, Obligations, known threats, losses, damages,
deficiencies, settlements, assessments, charges, costs and expenses
of any nature or kind.
2.5 “Common Stock” means the
Company’s common stock, $0.0001 par value per
share.
2.6 “Consent” means any consent,
approval, order or authorization of, or any declaration, filing or
registration with, or any application or report to, or any waiver
by, or any other action (whether similar or dissimilar to any of
the foregoing) of, by or with, any Person, which is necessary in
order to take a specified action or actions, in a specified manner
and/or to achieve a specific result.
2.7 “Contract”
means any written contract, agreement, order or commitment of any
nature whatsoever, including, any sales order, purchase order,
lease, sublease, license agreement, services agreement, loan
agreement, mortgage, security agreement, guarantee, management
contract, employment agreement, consulting agreement, partnership
agreement, shareholders agreement, buy-sell agreement, option,
warrant, debenture, subscription, call or put.
2.8 “Conversion
Price” means $0.87 per
share of the Company’s Common Stock.
2.9 “Conversion
Shares” means the shares
of Common Stock underlying the Preferred Stock together with the
Closing Date Conversion Shares.
2.10 “Encumbrance”
means any lien, security interest, pledge, mortgage, easement,
leasehold, assessment, tax, covenant, restriction, reservation,
conditional sale, prior assignment, or any other encumbrance,
claim, burden or charge of any nature whatsoever.
2.11 “Environmental
Requirements” means all Laws and requirements relating
to human, health, safety or protection of the environment or to
emissions, discharges, releases or threatened releases of
pollutants, contaminants, or Hazardous Materials in the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or otherwise relating to
the treatment, storage, disposal, transport or handling of any
Hazardous Materials.
2.12 “Exchange
Act” shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated
thereunder.
2.13 “GAAP”
means generally accepted accounting principles, methods and
practices set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants, and statements and pronouncements of the
Financial Accounting Standards Board, the SEC or of such other
Person as may be approved by a significant segment of the U.S.
accounting profession, in each case as of the date or period at
issue, and as applied in the U.S. to U.S. companies.
2.14 “Governmental
Authority” means any foreign, federal, state or local
government, or any political subdivision thereof, or any court,
agency or other body, organization, group, stock market or exchange
exercising any executive, legislative, judicial, quasi-judicial,
regulatory or administrative function of government.
2.15 “Hazardous
Materials” means: (i) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and
transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls (PCB’s); (ii)
any chemicals, materials, substances or wastes which are now or
hereafter become defined as or included in the definition of
“hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous
wastes,” “restricted hazardous wastes,”
“toxic substances,” “toxic pollutants” or
words of similar import, under any Law; and (iii) any other
chemical, material, substance, or waste, exposure to which is now
or hereafter prohibited, limited or regulated by any Governmental
Authority.
2.16 “Judgment”
means any final order, writ, injunction, fine, citation, award,
decree, or any other judgment of any nature whatsoever of any
Governmental Authority.
2.17 “Law”
means any provision of any law, statute, ordinance, code,
constitution, charter, treaty, rule or regulation of any
Governmental Authority applicable to the Company.
2.18 “Leases”
means all leases for real or personal property.
2.19 “Material
Adverse Effect” means with respect to the event, item
or question at issue, that such event, item or question would not
have or reasonably be expected to result in: (i) a material adverse
effect on the legality, validity or enforceability of this
Agreement or any of the Transaction Documents; (ii) a material
adverse effect on the results of operations, Assets, business or
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole; or (iii) a material adverse effect
on the Company’s or its subsidiaries’ ability to
perform, on a timely basis, its or their respective Obligations
under this Agreement or any Transaction Documents.
2.20 “Material
Contract” means any Contract to which the Company is a
party or by which it is bound which has been filed as an exhibit to
the SEC Documents pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K promulgated by the SEC.
2.21 “Obligation”
means any debt, liability or obligation of any nature whatsoever,
whether secured, unsecured, recourse, nonrecourse, liquidated,
unliquidated, accrued, absolute, fixed, contingent, ascertained,
unascertained, known, unknown or obligations under executory
Contracts.
2.22 “Ordinary
Course of Business” means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity, quality and frequency).
2.23 “Permit”
means any license, permit, approval, waiver, order, authorization,
right or privilege of any nature whatsoever, granted, issued,
approved or allowed by any Governmental Authority.
2.24 “Person”
means any individual, sole proprietorship, joint venture,
partnership, company, corporation, association, cooperation, trust,
estate, Governmental Authority, or any other entity of any nature
whatsoever.
2.25 “Placement
Agent” means Lake Street Capital Markets,
LLC.
2.26 “Preferred
Stock” means the Company’s Series A Convertible
Preferred Stock, par value $0.0001 per share, having the rights,
preferences and privileges as set forth in the Series A Convertible
Preferred Stock Certificate of Designations, in substantially the
form attached hereto as Exhibit A.
2.27 “Preferred
Stock Issue Price” means $1,000 for each share of
Preferred Stock.
2.28 “Principal
Trading Market” shall mean the Nasdaq Global Select
Market, the Nasdaq Global Market, the Nasdaq Capital Market, the
OTC Markets, including the Bulletin Board and Pink Sheets, the NYSE
Euronext or the New York Stock Exchange, whichever is at the time
the principal trading exchange or market for the Common
Stock.
2.29 “Proceeding”
means any demand, claim, suit, action, litigation, investigation,
audit, study, arbitration, administrative hearing, or any other
proceeding of any nature whatsoever.
2.30 “Real
Property” means any real estate, land, building,
structure, improvement, fixture or other real property of any
nature whatsoever, including, but not limited to, fee and leasehold
interests.
2.31 “Registration
Rights Agreement” means the Registration Rights
Agreement, dated the date hereof, among the Company and the Buyers,
in the form of Exhibit
B attached hereto.
2.32 “SEC”
means the United States Securities and Exchange
Commission.
2.33 “Securities”
means collectively, the Preferred Stock, Conversion Shares,
Warrants and the Warrant Shares, and where applicable the Placement
Agent Warrant.
2.34 “Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
2.35 “Tax”
means (i) any foreign, federal, state or local income, profits,
gross receipts, franchise, sales, use, occupancy, general property,
real property, personal property, intangible property, transfer,
fuel, excise, accumulated earnings, personal holding company,
unemployment compensation, social security, withholding taxes,
payroll taxes, or any other tax of any nature whatsoever, (ii) any
foreign, federal, state or local organization fee, qualification
fee, annual report fee, filing fee, occupation fee, assessment,
rent, or any other fee or charge of any nature whatsoever, or (iii)
any deficiency, interest or penalty imposed with respect to any of
the foregoing.
2.36 “Tax
Return” means any tax return, filing, declaration,
information statement or other form or document required to be
filed in connection with or with respect to any Tax.
2.37 “Transaction
Documents” means this Agreement, the Warrants, the
Placement Agent Agreement, the Placement Agent Warrant and the
Registration Rights Agreement executed in connection with the
transactions contemplated hereunder.
2.38 “Warrants”
means the Warrants, dated the date hereof, issued by the Company to
each Buyer, in the form of Exhibit C attached hereto,
which will be exercisable commencing the Closing Date until the
fifth anniversary of the Closing Date, at an exercise price per
share of the Company’s Common Stock equal to the Conversion
Price.
2.39 “Warrant
Shares” means the shares of Common Stock underlying
the Warrants.
ARTICLE
III
INTERPRETATION
In this
Agreement, unless the express context otherwise requires: (i) the
words “herein,” “hereof” and
“hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this
Agreement; (ii) references to the words “Article” or
“Section” refer to the respective Articles and Sections
of this Agreement, and references to “Exhibit” or
“Schedule” refer to the respective Exhibits and
Schedules annexed hereto; (iii) references to a “party”
mean a party to this Agreement and include references to such
party’s permitted successors and permitted assigns; (iv)
references to a “third party” mean a Person not a party
to this Agreement; (v) the terms “dollars” and
“$” means U.S. dollars; (vi) wherever the word
“include,” “includes” or
“including” is used in this Agreement, it will be
deemed to be followed by the words “without
limitation.”
ARTICLE
IV
PURCHASE AND SALE
4.1 Sale and Issuance of Preferred Stock
and Warrants. Subject to the terms and conditions of this
Agreement, each Buyer agrees, severally and not jointly, to
purchase, and the Company agrees to sell and issue to each Buyer,
shares of Preferred Stock and Warrants at an aggregate purchase
price equal to the amount set forth on such Buyer’s signature
page to this Agreement (the “Purchase Price”); provided, if so
elected as indicated on a Buyer’s signature page, in lieu of
the Preferred Stock otherwise deliverable a Buyer may elect to
purchase a number of Conversion Shares (the “Closing Date Conversion Shares”)
equal to the number of shares of Common Stock into which such
shares of Preferred Stock would have been convertible on the
Closing Date (the “Common
Stock Purchase Election”). The number of shares of
Preferred Stock purchased by each Buyer shall equal (a) the
Buyer’s Purchase Price, divided by (b) (i) the Preferred
Stock Issue Price, plus (ii) the number of shares of Common Stock
into which a share of Preferred Stock is initially convertible
times $0.125; provided a Buyer who makes the Common Stock Purchase
Election shall acquire Closing Date Conversion Shares in lieu of
the shares of Preferred Stock otherwise purchasable by such Buyer.
Each Buyer shall also receive Warrants exercisable for a number of
Warrant Shares equal to the number of shares of Common Stock into
which such Buyer’s shares of Preferred Stock are initially
convertible; provided a Buyer who makes the Common Stock Purchase
Election shall receive Warrants exercisable for a number of Warrant
Shares equal to the number of Closing Date Conversion Shares
purchased by such Buyer. The aggregate Purchase Price of the
Preferred Stock, Closing Date Conversion Shares and Warrants sold
hereunder shall be not less than $4,000,000 and not more than
$10,000,000, unless otherwise agreed by the Company and the
Placement Agent. The Company’s agreement with each Buyer is a
separate agreement, and the sale and issuance of the shares of
Preferred Stock, Closing Date Conversion Shares and Warrants to
each Buyer is a separate sale and issuance.
4.2 Closing. The purchase, sale and
issuance of the shares of Preferred Stock, Closing Date Conversion
Shares and the Warrants hereunder (the “Closing”) shall take place at the
offices of K&L Gates LLP, 000 X. Xxxxx Xx., 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or such other location as the
parties shall mutually agree, no later than the second business day
following the satisfaction or waiver of the conditions provided in
Articles VIII and IX of this Agreement (other than conditions that,
by their terms, are intended to be satisfied at the Closing, but
subject to the satisfaction or waiver of those conditions) (the
“Closing Date”),
but in no event later than the Outside Closing Date. The Company
and the Buyers agree that the Closing may occur via delivery of
facsimiles or photocopies of the applicable documents.
4.3 Form of Payment; Delivery. At
the Closing, each Buyer shall deliver to the Company the
Buyer’s Purchase Price. Promptly following the Closing, the
Company shall cause (1) the issuance of the shares of Preferred
Stock and Closing Date Conversion Shares by book entry with
Corporate Stock Transfer, Inc., the Company’s transfer agent
and (2) the issuance and delivery to the Buyers of the
Warrants.
ARTICLE
V
BUYERS’ REPRESENTATIONS AND WARRANTIES
Each
Buyer represents and warrants to the Company, that:
5.1 Investment Purpose. Each Buyer
is acquiring the Securities for its own account for investment only
and not with a view towards, or for resale in connection with, the
public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however,
that by making the representations herein, each Buyer reserves the
right to dispose of the Securities at any time in accordance with
or pursuant to an effective registration statement covering such
Securities or an available exemption under the Securities Act. The
Buyer acknowledges that a legend will be placed on the certificates
and book entries representing the Securities in the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND ARE
“RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE
144 UNDER THE SECURITIES ACT. SUCH SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND THE
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE REASONABLE SATISFACTION OF COUNSEL TO THE
ISSUER.
5.2 Accredited Investor Status.
Each Buyer is an “accredited investor” as that term is
defined in Rule 501(a) of Regulation D, as promulgated under the
Securities Act.
5.3 Reliance on Exemptions. Each
Buyer understands that the Securities are being offered and sold to
it in reliance on specific exemptions from the registration
requirements of United States federal and state securities Laws and
that the Company is relying in part upon the truth and accuracy of,
and each Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of each
Buyer set forth herein in order to determine the availability of
such exemptions and the eligibility of each Buyer to acquire the
Securities.
5.4 Information. Each Buyer and its
advisors, if any, have been furnished with all materials relating
to the business, finances and operations of the Company and other
information each Buyer deemed material to making an informed
investment decision regarding its purchase of Preferred Stock and
Warrants hereunder, which have been requested by such Buyer. Each
Buyer acknowledges that it has received and reviewed a copy of the
SEC Documents, which are available on the SEC’s website
(xxx.xxx.xxx) at
no charge to Buyers. Buyers acknowledge that each of them may
retrieve all SEC Documents from such website and each Buyer’s
access to such SEC Documents through such website shall constitute
delivery of the SEC Documents to Buyers. Each Buyer and its
advisors, if any, have been afforded the opportunity to ask
questions of the Company and its management. Each Buyer understands
that its investment in the Securities involves a high degree of
risk. Each Buyer is in a position regarding the Company, which,
based upon employment, family relationship or economic bargaining
power, enabled and enables such Buyer to obtain information from
the Company in order to evaluate the merits and risks of this
investment. Each Buyer has sought such accounting, legal and tax
advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the
Securities. Without limiting the foregoing, each Buyer has
carefully considered the potential risks relating to the Company
and a purchase of Preferred Stock and Warrants hereunder, and fully
understands that the Securities are a speculative investment that
involves a high degree of risk of loss of the Buyer’s entire
investment. Among other things, each Buyer has carefully considered
each of the risks described under the heading “Risk
Factors” in the Company’s Form 10-K filed with the SEC
on March 11, 2019 (the “Form
10-K”).
5.5 Minimum Offering. Each Buyer
understands that the Company may accept such Buyer’s purchase
hereunder at any time once the Company shall have received an
aggregate Purchase Price in the amount of at least $4,000,000 or
such other amount as may be agreed by the Company and the Placement
Agent. Any officer or director of the Company or the Placement
Agent, or any of such parties’ affiliates, may participate in
this offering and their investment, if any, will count towards the
foregoing minimum amount. As such, Buyer understands that the
Company may not receive proceeds hereunder in any amount greater
than $4,000,000, which may limit the Company’s ability to
execute upon its intended business plan.
5.6 No Governmental Review. Each
Buyer understands that no United States federal or state
Governmental Authority has passed on or made any recommendation or
endorsement of the Securities, or the fairness or suitability of
the investment in the Securities, nor have such Governmental
Authorities passed upon or endorsed the merits of the offering of
the Securities.
5.7 Authorization, Enforcement.
This Agreement has been duly and validly authorized, executed and
delivered on behalf of each Buyer and is a valid and binding
agreement of each Buyer, enforceable in accordance with its terms,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’
rights and remedies.
5.8 No General Solicitation. No
Buyer is purchasing any Securities as a result of any
advertisement, article, notice or other communication 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. Each Buyer
represents that it has a relationship with the Placement Agent or
the Company preceding the offering of the Preferred Stock and
Warrants hereunder.
5.9 Placement Agent. Such Buyer
understands that the Placement Agent has acted solely as the agent
of the Company in the placement of the Securities, and that the
Placement Agent makes no representation or warranty with regard to
the merits of this transaction or as to the accuracy of any
information such Buyer may have received in connection therewith.
Such Buyer acknowledges that it has not relied on any information
or advice furnished by or on behalf of the Placement
Agent.
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except
as set forth and disclosed in the Company’s SEC Documents (as
defined below), the Company hereby makes the following
representations and warranties to the Buyer. The Disclosure
Schedules shall be arranged in sections corresponding to the
numbered and lettered sections and subsections contained in this
Article VI and
certain other sections of this Agreement, and the disclosures in
any section or subsection of the Disclosure Schedules shall qualify
other sections and subsections in this Article VI only to the extent
it is readily apparent from a reading of the disclosure that such
disclosure is applicable to such other sections and
subsections.
6.1 Subsidiaries. Except for those
subsidiaries set forth on Exhibit 21.1 of the Form 10-K (each, an
“Operating
Sub”), the Company has no subsidiaries and the Company
does not own, directly or indirectly, any outstanding voting
securities of or other interests in, or have any control over, any
other Person. The Company wholly-owns each Operating Sub. Each
representation and warranty contained in this Article VI or
otherwise set forth in this Agreement shall be deemed to mean and
be construed to include the Company and each of its subsidiaries,
as applicable, regardless of whether each of such representations
and warranties in Article VI specifically refers to the
Company’s subsidiaries or not.
6.2 Organization. The Company and
its subsidiaries are corporations, duly organized, validly existing
and in good standing under the Laws of the respective jurisdictions
in which they are incorporated. The Company has the full corporate
power and authority and all necessary certificates, licenses,
approvals and Permits to: (i) enter into and execute this Agreement
and each of the Transaction Documents and to perform all of its
Obligations hereunder and thereunder; and (ii) own and operate its
Assets and properties and to conduct and carry on its business as
and to the extent now conducted. The Company and each subsidiary is
duly qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction where the character of its
business or the ownership or use and operation of its Assets or
properties requires such qualification, except to the extent that
failure to so qualify will not result in a Material Adverse
Effect.
6.3 Authority and Approval of Agreement;
Binding Effect. The execution and delivery by the Company of
this Agreement and the Transaction Documents to which it is a
party, and the performance by the Company of all of its Obligations
hereunder and thereunder, including the issuance of the Preferred
Stock, Warrants, Conversion Shares, Warrant Shares and the shares
of Common Stock underlying the Placement Agent Warrant, have been
duly and validly authorized and approved by the Company and its
board of directors pursuant to all applicable Laws and no other
corporate action or Consent on the part of the Company, its board
of directors, stockholders or any other Person is necessary or
required by the Company to execute this Agreement and the
Transaction Documents, consummate the transactions contemplated
herein and therein, perform all of Company’s Obligations
hereunder and thereunder, or to issue the Securities. This
Agreement and each of the Transaction Documents have been duly and
validly executed by the Company (and the officer executing this
Agreement and all such other Transaction Documents is duly
authorized to act and execute same on behalf of the Company) and
constitute the valid and legally binding agreements of the Company,
enforceable against the Company in accordance with their respective
terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
6.4 Capitalization. Immediately
prior to the Closing, the authorized capital stock of the Company
will consist of 50,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, of which, as of the date hereof,
7,516,875 shares of Common Stock are issued and outstanding and no
shares of preferred stock are issued and outstanding. On the date
hereof, 4,583,567 shares of Common Stock are issuable upon exercise
of outstanding warrants, including 1,932,000 shares of Common Stock
issuable upon the exercise of outstanding warrants listing on the
Nasdaq Capital Market under the symbol “NDRAW,” at an
exercise price of $6.25 per share. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. The
Common Stock is currently quoted on the Nasdaq Capital Market under
the trading symbol “NDRA.” Other than as described in the SEC Documents, the
Company has received no notice, either oral or written, with
respect to the continued eligibility of the Common Stock for
quotation on the Principal Trading Market, and, other than as
described in the SEC Documents, the Company has maintained all
requirements on its part for the continuation of such
quotation. Except as described in the SEC Documents
(as defined below), no shares of Common Stock are subject to
preemptive rights or any other similar rights or any Encumbrances
suffered or permitted by the Company. Except as described in
the SEC Documents or issuable under any equity incentive plan
described in the SEC Documents, as of the date hereof:
(i) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares
of capital stock of the Company or any of its subsidiaries, or
Contracts, commitments, understandings or arrangements by which the
Company or any of its subsidiaries is or may become bound to issue
additional Shares of capital stock of the Company or any of its
subsidiaries, or options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock
of the Company or any of its subsidiaries; (collectively,
“Derivative
Securities”); (ii) there are no outstanding debt
securities, notes, credit agreements, credit facilities or other
Contracts or instruments evidencing indebtedness of the Company or
any of its subsidiaries, or by which the Company or any of its
subsidiaries is or may become bound; (iii) there are no
outstanding registration statements with respect to the Company or
any of its securities (other than registration statements on Form
S-3 or Form S-8); (iv) there are no agreements or arrangements
under which the Company or any of its subsidiaries is obligated to
register the sale of any of their securities under the Securities
Act (except pursuant to the Transaction Documents); (v) there are
no financing statements securing obligations filed in connection
with the Company or any of its Assets that have not been
terminated; (vi) there are no securities or instruments
containing anti-dilution or similar provisions that will be
triggered by this Agreement or any related agreement or the
consummation of the transactions described herein or therein; and
(vii) there are no outstanding securities or instruments of the
Company which contain any redemption or similar provisions, and
there are no Contracts by which the Company is or may become bound
to redeem a security of the Company. Except as described in the SEC
Documents, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s
stockholders.
6.5 No Conflicts; Consents and
Approvals. The execution, delivery and performance of this
Agreement and the Transaction Documents, and the consummation of
the transactions contemplated hereby and thereby, will not: (i)
constitute a violation of or conflict with any provision of the
Company’s or any Operating Sub’s certificate or
articles of incorporation, bylaws or other organizational or
charter documents; (ii) constitute a violation of, or a default or
breach under (either immediately, upon notice, upon lapse of time,
or both), or conflict with, or give to any other Person any rights
of termination, amendment, acceleration or cancellation of, any
provision of any Material Contract; (iii) constitute a violation
of, or a default or breach under (either immediately, upon notice,
upon lapse of time, or both), or conflict with, any Judgment; (iv)
assuming the accuracy of the
representations and warranties of the Buyers set forth in Article V
above, constitute a violation of, or conflict with, any Law
(including United States federal and state securities Laws and the
rules and regulations of any market or exchange on which the Common
Stock is quoted); or (v) result in the loss or adverse modification
of, or the imposition of any fine, penalty or other Encumbrance
with respect to, any Permit granted or issued to, or otherwise held
by or for the use of, Company or any of Company’s Assets. The
Company is not in violation of its articles of incorporation,
bylaws or other organizational or governing documents and the
Company is not in default or breach (and no event has occurred
which with notice or lapse of time or both could put the Company in
default or breach) under, and the Company has not taken any action
or failed to take any action that would give to any other Person
any rights of termination, amendment, acceleration or cancellation
of, any Material Contract. Except as specifically contemplated by
this Agreement, the Company is not required to obtain any Consent
of, from, or with any Governmental Authority, or any other Person,
in order for it to execute, deliver or perform any of its
Obligations under this Agreement or the Transaction Documents in
accordance with the terms hereof or thereof, or to issue and sell
the Shares in accordance with the terms hereof. All Consents which
the Company is required to obtain pursuant to the immediately
preceding sentence have been obtained or effected on or prior to
the date hereof.
6.6 Issuance of Securities. The
Conversion Shares, the Warrant Shares and the Shares of Common
Stock underlying the Placement Agent Warrants are duly authorized
and, upon issuance in accordance with the terms hereof or the
governing instrument, as the case may be, shall be duly issued,
fully paid and non-assessable, and free from all Encumbrances with
respect to the issue thereof, and, assuming the accuracy of the representations and
warranties of the Buyers set forth in Article V above, will
be issued in compliance with all applicable United States federal
and state securities Laws. Assuming
the accuracy of the representations and warranties of the Buyers
set forth in Article V above, the offer and sale by the Company of
the Securities is exempt from: (i) the registration and prospectus
delivery requirements of the Securities Act; and (ii) the
registration and/or qualification provisions of all applicable
state and provincial securities and “blue sky”
laws.
6.7 SEC Documents; Financial
Statements. The Common Stock is registered pursuant to
Section 12 of the Exchange Act and the Company has timely filed all
reports, schedules, forms, statements and other documents required
to be filed by it with the SEC under the Exchange Act (all of the
foregoing filed within the two (2) years preceding the date hereof
or amended after the date hereof and all exhibits included therein
and financial statements and schedules thereto and documents
incorporated by reference therein, being hereinafter referred to as
the “SEC
Documents”). The Company is current with its filing
obligations under the Exchange Act and all SEC Documents 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
Document prior to the expiration of any such extension. The Company
represents and warrants that true and complete copies of the SEC
Documents are available on the SEC’s website (xxx.xxx.xxx) at
no charge to Buyers, and Buyers acknowledge that each of them may
retrieve all SEC Documents from such website and each Buyer’s
access to such SEC Documents through such website shall constitute
delivery of the SEC Documents to Buyers. As of their respective
dates, the SEC Documents complied in all material respects with the
requirements of the Exchange Act, and none of the SEC Documents, at
the time they were filed with the SEC, 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. None of the statements made in any such
SEC Document is, or has been, required to be amended or updated
under applicable Law (except as such statements have been amended
or updated in subsequent filings prior to the date hereof, which
amendments or updates are also part of the SEC Documents). As of
their respective dates, the financial statements of the Company
included in the SEC Documents (“Financial Statements”) complied in
all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto
(except as such Financial Statements have been amended or updated
in subsequent filings prior to the date hereof, which amendments or
updates are also part of the SEC Documents). All of the Financial
Statements have been prepared in accordance with GAAP, consistently
applied, during the periods involved (except: (i) as may be
otherwise indicated in such Financial Statements or the notes
thereto; or (ii) in the case of unaudited interim statements, to
the extent they may exclude footnotes or may be condensed or
summary statements), and fairly present in all material respects
the consolidated financial position of the Company as of the dates
thereof and the consolidated results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). To the knowledge
of the Company and its officers, no other information provided by
or on behalf of the Company to the Buyers which is not included in
the SEC Documents contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstance under which
they are or were made, not misleading.
6.8 Absence of Certain Changes.
Since the date the last of the SEC Documents was filed with the
SEC, none of the following have occurred:
(a) There has been no
event or circumstance of any nature whatsoever that has resulted
in, or could reasonably be expected to result in, a Material
Adverse Effect; or
(b) Except for this
Agreement and the other Transaction Documents, there has been no
transaction, event, action, development, payment, or other matter
of any nature whatsoever entered into by the Company that requires
disclosure in an SEC Document which has not been so
disclosed.
6.9 Absence of Litigation or Adverse
Matters. Except as disclosed in the SEC Documents: (i) there
is no Proceeding before or by any Governmental Authority or any
other Person, pending, or the best of Company’s knowledge,
threatened or contemplated by, against or affecting the Company,
its business or Assets; (ii) there is no outstanding Judgment
against or affecting the Company, its business or Assets; and (iii)
the Company is not in breach or violation of any Material
Contract.
6.10 Liabilities
of the Company. The Company does not have any Obligations of
a nature required by GAAP to be disclosed on a consolidated balance
sheet of the Company, except: (i) as disclosed in the Financial
Statements; or (ii) incurred in the Ordinary Course of Business
since the date of the last Financial Statements filed by the
Company with the SEC that have not had, and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
6.11 Title
to Assets. The Company has good and marketable title to, or
a valid license or leasehold interest in, all of its Assets which
are material to the business and operations of the Company as
presently conducted, free and clear of all Encumbrances or
restrictions on the transfer or use of same, other than
restrictions on transfer or use arising under a license or Lease
with respect to such Assets that, individually or in the aggregate,
would not have, or be reasonably expected to, materially interfere
with the purposes for which they are currently used and for the
purposes for which they are proposed to be used. Except as would
not have a Material Adverse Effect, the Company’s Assets are
in good operating condition and repair, ordinary wear and tear
excepted, and are free of any latent or patent defects which might
impair their usefulness, and are suitable for the purposes for
which they are currently used and for the purposes for which they
are proposed to be used.
6.12 Real
Estate.
(a) Real Property Ownership. The
Company does not own any Real Property.
(b) Real Property Leases. Except
pursuant to the Leases described in the SEC Documents (the
“Company
Leases”), the Company does not lease any Real
Property. With respect to each of the Company Leases, except as
disclosed in the SEC Documents, (i) the Company has been in
peaceful possession of the property leased thereunder and neither
the Company nor, to the Company’s knowledge, the landlord is
in default thereunder; (ii) no waiver, indulgence or postponement
of any of the Obligations thereunder has been granted by the
Company or landlord thereunder; and (iii) there exists no event,
occurrence, condition or act known to the Company which, upon
notice or lapse of time or both, would be or could become a default
thereunder or which could result in the termination of the Company
Leases, or any of them, or have a Material Adverse Effect on the
business of the Company, its Assets or its operations or financial
results. The Company has not violated nor breached any provision of
any such Company Leases, and all Obligations required to be
performed by the Company under any of such Company Leases have been
fully, timely and properly performed. If requested by any of the
Buyers, the Company has delivered to such Buyers true, correct and
complete copies of all Company Leases, including all modifications
and amendments thereto, whether in writing or otherwise. The
Company has not received any written or oral notice to the effect
that any of the Company Leases will not be renewed at the
termination of the term of such Company Leases, or that any of such
Company Leases will be renewed only at higher rents.
6.13 Material
Contracts. An accurate, current and complete copy of each of
the Material Contracts has been furnished to Buyers and/or is
readily available as part of the SEC Documents, and each of the
Material Contracts constitutes the entire agreement of the
respective parties thereto relating to the subject matter thereof.
Each of the Material Contracts is in full force and effect and is a
valid and binding Obligation of the parties thereto in accordance
with the terms and conditions thereof. To the knowledge of the
Company and its officers, all Obligations required to be performed
under the terms of each of the Material Contracts by any party
thereto on or prior to the date hereof have been fully performed by
all parties thereto, and no party to any Material Contracts is in
default with respect to any term or condition thereof, nor has any
event occurred which, through the passage of time or the giving of
notice, or both, would constitute a default thereunder or would
cause the acceleration or modification of any Obligation of any
party thereto or the creation of any Encumbrance upon any of the
Assets of the Company. Further, the Company has received no notice,
nor does the Company have any knowledge, of any pending or
contemplated termination of any of the Material Contracts and, no
such termination is proposed or has been threatened, whether in
writing or orally.
6.14 Compliance
with Laws. Except as would not have a Material Adverse
Effect, the Company is and at all times has been in material
compliance with all Laws. The Company has not received any notice
that it is in violation of, has violated, or is under investigation
with respect to, or has been threatened to be charged with, any
violation of any Law.
6.15 Intellectual
Property. To the Company’s knowledge, the Company owns
or possesses adequate and legally enforceable rights or licenses to
use all material trademarks, trade names, service marks, service
xxxx registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and all other material intellectual
property rights necessary to conduct its business as now conducted.
The Company does not have any knowledge of any infringement by the
Company of trademark, trade name rights, patents, patent rights,
copyrights, inventions, licenses, service names, service marks,
service xxxx registrations, trade secret or other intellectual
property rights of others, and, to the knowledge of the Company,
there is no Claim being made or brought against, or to the
Company’s knowledge, being threatened against, the Company
regarding trademark, trade name, patents, patent rights, invention,
copyright, license, service names, service marks, service xxxx
registrations, trade secret or other intellectual property
infringement; and the Company is unaware of any facts or
circumstances which might give rise to any of the
foregoing.
6.16 Labor
and Employment Matters. The Company is not involved in any
labor dispute or, to the knowledge of the Company, is any such
dispute threatened. To the knowledge of the Company and its
officers, none of the Company’s employees is a member of a
union and the Company believes that its relations with its
employees are good. To the knowledge of the Company and its
officers, the Company has complied in all material respects with
all Laws relating to employment matters, civil rights and equal
employment opportunities.
6.17 Employee
Benefit Plans. The Company is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder
(“ERISA”); no
“reportable event” (as defined in ERISA) has occurred
with respect to any “pension plan” (as defined in
ERISA) for which the Company would have any liability; the Company
has not incurred and does not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal
from, any “pension plan” or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code”); and
each “pension plan” for which the Company would have
any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification. To the Company’s
knowledge, the Company has promptly paid and discharged all
Obligations arising under ERISA of a character which if unpaid or
unperformed might result in the imposition of an Encumbrance
against any of its Assets or otherwise have a Material Adverse
Effect.
6.18 Tax
Matters. The Company has made and timely filed all Tax
Returns required by any jurisdiction to which it is subject, and
each such Tax Return has been prepared in compliance with all
applicable Laws, and all such Tax Returns are true and accurate in
all respects. Except and only to the extent that the Company has
set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported Taxes, the Company has timely
paid all Taxes shown or determined to be due on such Tax Returns,
except those being contested in good faith, and the Company has set
aside on its books provision reasonably adequate for the payment of
all Taxes for periods subsequent to the periods to which such Tax
Returns apply. There are no unpaid Taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and
the officers of the Company know of no basis for any such claim.
The Company has withheld and paid all Taxes to the appropriate
Governmental Authority required to have been withheld and paid in
connection with amounts paid or owing to any Person. There is no
Proceeding or Claim for refund now in progress, pending or, to the
Company’s knowledge, threatened against or with respect to
the Company regarding Taxes.
6.19 Insurance.
The Company is covered by policies of insurance which were issued
to it by reputable insurers of recognized financial responsibility,
covering its properties, Assets and businesses against losses and
risks normally insured against by other corporations or entities in
the same or similar lines of businesses as the Company is engaged
and in coverage amounts which are prudent and typically and
reasonably carried by such other corporations or entities (the
“Insurance
Policies”). Such Insurance Policies are in full force
and effect, and all premiums due thereon have been paid. None of
the Insurance Policies will lapse or terminate as a result of the
transactions contemplated by this Agreement. The Company has
complied with the provisions of such Insurance Policies. The
Company has not been refused any insurance coverage sought or
applied for and the Company does not have any reason to believe
that it will not be able to renew its existing Insurance Policies
as and when such Insurance Policies expire or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect
the condition, financial or otherwise, or the earnings, business or
operations of the Company.
6.20 Permits.
The Company possesses all Permits necessary to conduct its business
as currently conducted, and the Company has not received any notice
of, or is otherwise involved in any Proceedings relating to, the
revocation or modification of any such Permits. All such Permits
are valid and in full force and effect and the Company is in
material compliance with the respective requirements of all such
Permits.
6.21 Business
Location. The Company has no office or place of business
other than as identified in the SEC Documents and the
Company’s principal executive offices are located in Ann
Arbor, Michigan. All books and records of the Company and other
material Assets of the Company are held or located at the offices
and places of business identified in the SEC
Documents.
6.22 Environmental
Laws. The Company is and has at all times been in compliance
in all material respects with any and all applicable Environmental
Requirements, and there are no pending Claims against the Company
relating to any Environmental Requirements, nor to the knowledge of
the Company, is there any basis for any such Claims.
6.23 Illegal
Payments. Neither the Company, nor any director, officer,
agent, employee or other Person acting on behalf of the Company
has, in the course of his actions for, or on behalf of, the
Company: (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic
government official or employee.
6.24 Related
Party Transactions. Except as disclosed in the SEC
Documents, and except for arm’s length transactions pursuant
to which the Company makes payments in the Ordinary Course of
Business upon terms no less favorable than the Company could obtain
from third parties, none of the officers, directors or employees of
the Company, nor any stockholders who own, legally or beneficially,
five percent (5%) or more of the issued and outstanding shares of
any class of the Company’s capital stock (each a
“Material
Shareholder”), is presently a party to any transaction
with the Company (other than for services as employees, officers
and directors), including any Contract 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 Material Shareholder or,
to the best knowledge of the Company, any other Person in which any
officer, director, or any such employee or Material Shareholder has
a substantial or material interest in or of which any officer,
director or employee of the Company or Material Shareholder is an
officer, director, trustee or partner. There are no Claims or
disputes of any nature or kind between the Company and any officer,
director or employee of the Company or any Material Shareholder,
or, to the Company’s knowledge, between any of them, relating
to the Company and its business.
6.25 Internal
Accounting Controls. Except as set forth in the SEC
Documents, the Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in
accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (iii) access to Assets
is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for Assets is compared with the existing Assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
6.26 Acknowledgment
Regarding Buyers’ Purchase of the Shares. The Company
acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company
further acknowledges that no Buyer is acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement and the transactions contemplated hereby
and any advice given by any Buyer or any of its representatives or
agents in connection with this Agreement and the transactions
contemplated hereby is merely incidental to such Buyer’s
purchase of the Shares. The Company further represents to each
Buyer that the Company’s decision to enter into this
Agreement has been based solely on the independent evaluation by
the Company and its representatives.
6.27 Listing
and Maintenance Requirements. The Company’s Common
Stock is registered pursuant to Section 12 of the Exchange Act, and
the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act, nor has
the Company received any notification that the SEC is contemplating
terminating such registration.
6.28 Bad
Actor. No “bad actor” disqualifying event
described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a
“Disqualification
Event”) is applicable to the Company or, to the
Company’s knowledge, any Company Covered Person. As used in
this Section 6.28, the term “Company Covered Person” means,
with respect to the Company as an “issuer” for purposes
of Rule 506 promulgated under the Securities Act, any Person listed
in the first paragraph of Rule 506(d)(1).
6.29 Brokerage
Fees. Except for the Placement Agent and National Securities
Corporation, there is no Person acting on behalf of the Company who
is entitled to or has any claim for any financial advisory,
brokerage or finder’s fee or commission in connection with
the execution of this Agreement or the consummation of the
transactions contemplated hereby. The Company has agreed to pay the
Placement Agent a cash amount equal to 8.0% of the gross proceeds
from the sale of Preferred Stock and Warrants hereunder and issue
to the Placement Agent a warrant to purchase a number of shares of
Common Stock equal to 8.0% of the Conversion Shares. Such warrant
will have an exercise price equal to the Conversion Price and be
exercisable, commencing the Closing Date, for a period of three
years after the Closing Date. The shares issuable upon exercise of
the warrant issued to the Placement Agent will have registration
rights. The Company has also agreed to reimburse the Placement
Agent up to $25,000 for its legal fees and up to $10,000 for other
expenses in connection with the sale of the Preferred Stock and the
Warrants hereunder.
ARTICLE
VII
COVENANTS
7.1 Best Efforts. Each party shall
use its best efforts to timely satisfy each of the conditions to be
satisfied by it as provided in Articles VIII and IX of this
Agreement.
7.2 Form D. If required by
applicable Law, the Company agrees to file a Form D with respect to
the offering of Preferred Stock and the Warrants as required under
Regulation D of the Securities Act and to provide a copy thereof to
the Placement Agent. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is
necessary to qualify the Preferred Stock and the Warrants, or
obtain an exemption for the Preferred Stock and the Warrants for
sale to each of the Buyers at Closing pursuant to this Agreement
under applicable securities or “Blue Sky” Laws of the
states of the United States, and shall provide evidence of any such
action so taken to the Placement Agent on or prior to the Closing
Date.
7.3 Affirmative
Covenants.
(a) Reporting Status; Listing.
Until the earlier of three (3) years from the date hereof or when
the shares of Preferred Stock issued hereunder, Conversion Shares,
Warrants and Warrant Shares are no longer registered in the names
of the Buyers on the books and records of the Company, the Company
shall: (i) file in a timely manner all reports required to be filed
under the Securities Act, the Exchange
Act or any securities Laws and regulations thereof applicable to
the Company of any state of the United States, or by the rules and
regulations of the Principal Trading Market, and, if not otherwise
publicly available, to provide a copy thereof to a Buyer upon
request; (ii) not terminate its status as an issuer
required to file reports under the Exchange Act even if the
Exchange Act or the rules and regulations thereunder would
otherwise permit such termination unless in connection with a Sale
Event (as defined below); (iii) if required by the rules and
regulations of the Principal Trading Market, promptly secure the
listing of any of the Conversion Shares or Warrant Shares upon the
Principal Trading Market (subject to official notice of issuance)
and, take all reasonable action under
its control to maintain the continued listing, quotation and
trading of its Common Stock on the Principal Trading Market,
and the Company shall comply in all respects with the
Company’s reporting, filing and other Obligations under the
bylaws or rules of the Principal Trading Market, the Financial
Industry Regulatory Authority, Inc. and such other Governmental
Authorities, as applicable.
(b) Rule 144. With a view to making
available to each Buyer the benefits of Rule 144 under the
Securities Act (“Rule
144”), or any similar rule or regulation of the SEC
that may at any time permit Buyers to sell any of the Conversion
Shares or Warrant Shares to the public without registration, the
Company represents and warrants that: (i) the Company is, and has
been for a period of at least ninety (90) days immediately
preceding the date hereof, subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act; (ii) the Company has filed
all required reports under Section 13 or 15(d) of the Exchange Act,
as applicable, during the twelve (12) months preceding the Closing
Date (or for such shorter period that the Company was required to
file such reports); (iii) the Company is not an issuer defined as a
“Shell Company” (as hereinafter defined); and (iv) if
the Company has, at any time, been an issuer defined as a Shell
Company, the Company has: (A) not been an issuer defined as a Shell
Company for at least six (6) months prior to the Closing Date; and
(B) has satisfied the requirements of Rule 144(i) (including,
without limitation, the proper filing of “Form 10
information” at least six (6) months prior to the Closing
Date). For the purposes hereof, the term “Shell Company” shall mean an
issuer that meets the description set forth under Rule
144(i)(1)(i). In addition, until the earliest of (x) three (3)
years from the date hereof, (y) when the Conversion Shares and
Warrant Shares no longer bear a restrictive legend, or (z) the sale
of all or substantially all the assets of the Company; any merger,
consolidation or acquisition involving the Company with, by or into
another corporation, entity or person; or any change in the
ownership of more than fifty percent (50%) of the voting capital
stock of the Company in one or more related transactions (such
transactions described in this clause (z), a “Sale Event”), the Company shall,
at its sole expense:
(i)
make, keep and
ensure that adequate current public information with respect to the Company, as required in
accordance with Rule 144, is publicly
available.
(ii)
furnish
to each Buyer, promptly upon reasonable request: (A) a written
statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act;
and (B) such other information as may be reasonably requested by
each Buyer to permit each Buyer to sell any of the shares of
Preferred Stock issued hereunder or Warrants pursuant to Rule 144
without limitation or restriction; and
(iii)
promptly at the request of each Buyer, upon the
Buyer’s providing customary supporting documentation, give
the Company’s transfer agent instructions to the effect that,
upon the transfer agent’s receipt from any Buyer of a
certificate (a “Rule 144
Certificate”) certifying
that such Buyer’s holding period (as determined in accordance
with the provisions of Rule 144) for any portion of the Conversion
Shares or Warrant Shares which such Buyer proposes to sell (the
“Securities Being
Sold”) is not less than
six (6) months and such sale otherwise complies with the
requirements of Rule 144, and receipt by the transfer agent of the
“Rule 144 Opinion” (as hereinafter defined) from the
Company or its counsel (or from such Buyer and its counsel as
permitted below), the transfer agent is to effect the transfer of
the Securities Being Sold and issue to such Buyer or transferee(s)
thereof one or more stock certificates representing the transferred
Securities Being Sold without any restrictive legend and without
recording any restrictions on the transferability of such
Securities Being Sold on the transfer agent’s books and
records or, at the Buyer’s option, the Securities Being Sold
shall be transmitted by the transfer agent to the Buyer by
crediting the account of the Buyer’s or its designee’s
balance account with The Depository Trust Company through its
Deposit or Withdrawal at Custodian system if the transfer agent is
then a participant in such system. In this regard, upon each
Buyer’s request, the Company shall have an affirmative
obligation at its expense to cause its counsel to promptly issue to
the transfer agent a legal opinion providing that, based on the
Rule 144 Certificate, the Securities Being Sold were or may be
sold, as applicable, pursuant to the provisions of Rule 144, even
in the absence of an effective registration statement (the
“Rule
144 Opinion”). If the
transfer agent requires any additional documentation in connection
with any proposed transfer by any Buyer of any Securities Being
Sold, the Company shall promptly deliver or cause to be delivered
to the transfer agent or to any other Person, all such additional
documentation as may be necessary to effectuate the transfer of the
Securities Being Sold and the issuance of an unlegended certificate
to any transferee thereof, all at the Company’s
expense.
(c) Matters With Respect to Shares and
Transfer Agent.
(i) Removal of Restrictive Legends.
In the event that any Buyer has any Conversion Shares or Warrant
Shares bearing any restrictive legends, and such Buyer, through its
counsel or other representatives, submits to the Company’s
transfer agent (“Transfer
Agent”) any such shares for the removal of the
restrictive legends thereon, whether in connection with a sale of
such shares pursuant to any
exemption to the registration requirements under the Securities
Act, or otherwise, and the Company and or its counsel refuses or
fails for any reason (except to the extent that such refusal or
failure is based solely on applicable Law, including SEC
interpretive guidance, that would prevent the removal of such
restrictive legends) to render an opinion of counsel or any other
documents or certificates required for the removal of the
restrictive legends, then the Company hereby agrees and
acknowledges that such Buyer is hereby irrevocably and expressly
authorized to have counsel to such Buyer render any and all
opinions and other certificates or instruments which may be
required for purposes of removing such restrictive legends, and the
Company hereby irrevocably authorizes and directs the Transfer
Agent to, without any further confirmation or instructions from the
Company, issue any such shares without restrictive legends as
instructed by such Buyer, and, unless such shares are issued by
book entry, surrender to a common carrier for overnight delivery to
the address as specified by such Buyer, certificates, registered in
the name of such Buyer or its designees, representing the shares of
Common Stock to which such Buyer is entitled, without any
restrictive legends and otherwise freely transferable on the books
and records of the Company. Notwithstanding the foregoing, it is
acknowledged and agreed that the Company shall not be required to
comply with a request to remove any restrictive legend for any
Buyer who at the time of the request is an Affiliate of the Company
other than in connection with the sale of the shares underlying the
applicable certificate(s) in accordance with Rule 144.
(ii) Authorized
Agent of the Company. The Company hereby irrevocably
appoints each Buyer and each Buyer’s counsel and its
representatives, each as the Company’s duly authorized agent
and attorney-in-fact for the Company solely for the purposes of
authorizing and instructing the Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer, in
strict compliance with this Section 7.3(c). The
authorization and power of attorney granted hereby is coupled with
an interest and is irrevocable so long as any Buyer owns or has the
right to receive, any shares of the Company’s Common Stock
hereunder. In this regard, the Company hereby confirms to the
Transfer Agent and each Buyer that it can NOT and will NOT give instructions,
including stop orders or otherwise, inconsistent with the terms of
this Section 7.3(c)
with regard to the matters contemplated herein, and that each Buyer
shall have the absolute right to provide a copy of this Agreement
to the Transfer Agent as evidence of the Company’s
irrevocable authority for each Buyer and Transfer Agent to process
issuances, transfers and legend removals upon instructions from
each Buyer, or any counsel or representatives of each Buyer, in
each case as specifically contemplated in this Section 7.3(c), without any
further instructions, orders or confirmations from the
Company.
(iii) Injunction
and Specific Performance. The Company specifically
acknowledges and agrees that in the event of a breach or threatened
breach by the Company of any provision of this Section 7.3(c), each Buyer will
be irreparably damaged and that damages at law would be an
inadequate remedy if this Agreement were not specifically
enforced. Therefore, in the event of a breach or threatened
breach of any provision of this Section 7.3(c) by the Company,
each Buyer shall be entitled to seek, in addition to all other
rights or remedies such Buyer may have, at law or in equity, an
injunction restraining such breach, without being required to show
any actual damage or to post any bond or other security, and/or to
a decree for specific performance of the provisions of this
Section
7.3(c).
7.4 Use of Proceeds. The Company
shall use the net proceeds from the sale of the Preferred Stock and
the Warrants for working capital and general corporate purposes,
repayment of its outstanding senior secured convertible promissory
notes issued in July 2019, and payment of the fees and expenses of
this offering.
7.5 Fees and Expenses. The Company
agrees to pay to each Buyer (or any designee or agent of the
Buyers), upon demand, or to otherwise be responsible for the
payment of, any and all costs, fees, charges and expenses,
including the reasonable fees, costs, expenses and disbursements of
counsel for any Buyer, and of any experts and agents, which any
Buyer may incur or which may otherwise be due and payable in
connection with: (i) any documentary stamp taxes, intangibles
taxes, recording fees, filing fees, or other similar taxes, fees or
charges imposed by or due to any Governmental Authority in
connection with this Agreement or any other Transaction Documents;
(ii) the exercise or enforcement of any of the rights of any
Buyer under this Agreement or the Transaction Documents; or
(iii) the failure by the Company to perform or observe any of
the provisions of this Agreement or any of the Transaction
Documents. The provisions of this Subsection shall survive the
termination of this Agreement.
7.6 Public Disclosure of Buyers.
The Company shall not publicly disclose the name of any Buyer, or
include the name of any Buyer in any filing with the SEC or any
regulatory agency or Principal Trading Market, without the prior
written consent of such Buyer except: (a) as required by federal
securities law in connection with any registration statement
contemplated by the Registration Rights Agreement or (b) to the
extent such disclosure is required by Law or Principal Trading
Market regulations, in which case the Company shall provide Buyers
with prior written notice of such disclosure permitted under this
clause (b).
ARTICLE
VIII
CONDITIONS PRECEDENT TO THE COMPANY’S OBLIGATIONS TO
SELL
The
obligation of the Company hereunder to issue and sell the Preferred
Stock and the Warrants to a Buyer at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at
any time in its sole discretion:
8.1 The Buyer shall
have executed the Transaction Documents that require the
Buyer’s execution, and delivered them to the
Company.
8.2 The Company shall
have received the Buyer’s Purchase Price to the Company,
which payment may be made by the Payment Agent’s release of
its control over a bank account of the Company.
8.3 The Buyer’s
representations and warranties shall be true and correct in all
material respects as of the date when made and as of the Closing
Date as though made at that time (except for representations and
warranties that speak as of a specific date), and the Buyer shall
have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Buyer
at or prior to the Closing Date.
8.4 The Company shall
have obtained all governmental, regulatory or third party consents
and approvals necessary for the sale of the Preferred Stock and the
Warrants.
8.5 No statute, rule,
regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or
governmental authority of competent jurisdiction that prohibits the
consummation of any of the transactions contemplated by the
Transaction Documents.
8.6 Since the date of
execution of this Agreement, no event or series of events shall
have occurred that resulted, or could reasonably be expected to
result, in a Material Adverse Effect.
8.7 Trading in the
Common Stock shall not have been suspended by the SEC or any
Principal Trading Market (except for any suspensions of trading of
not more than one trading day solely to permit dissemination of
material information regarding the Company) at any time since the
date of execution of this Agreement.
8.8 The Company shall
have received an aggregate Purchase Price in the amount of not less
than $4,000,000 and no more than $10,000,000. Any officer or
director of the Company or the Placement Agent, or any of such
parties affiliates, may participate in this offering and their
investment, if any, will count towards the foregoing
amount.
ARTICLE
IX
CONDITIONS PRECEDENT TO A BUYER’S OBLIGATIONS TO
PURCHASE
The
obligation of a Buyer hereunder to purchase the Preferred Stock,
Closing Date Conversion Shares and the Warrants at the Closing is
subject to the satisfaction, at or before the Closing Date, of each
of the following conditions (in addition to any other conditions
precedent elsewhere in this Agreement), provided that these
conditions are for the Buyer’s sole benefit and may be waived
by the Buyer at any time in its sole discretion:
9.1 The Company shall
have executed and delivered the Transaction Documents and delivered
the same to the Placement Agent.
9.2 The representations
and warranties of the Company shall be true and correct in all
material respects (except to the extent that any of such
representations and warranties are already qualified as to
materiality in Article VI above, in which case, such
representations and warranties shall be true and correct in all
respects without further qualification) as of the date when made
and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date)
and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date. The Placement
Agent shall have received a certificate, executed by the Chief
Executive Officer or Chief Financial Officer of the Company, dated
as of the Closing Date, to the foregoing effect.
9.3 The Company shall
have delivered to the Placement Agent a certificate evidencing the
formation and good standing of the Company in its jurisdiction of
formation issued by the Secretary of State (or comparable office)
of such jurisdiction of formation as of a date within ten (10) days
of the Closing Date.
9.4 The Company shall
have delivered to the Placement Agent a certificate or other
reasonably acceptable evidence evidencing the Company’s
qualification as a foreign corporation and good standing issued by
the Secretary of State (or comparable office) of each jurisdiction
in which the Company conducts business and is required to so
qualify, as of a date within twenty (20) days of the Closing
Date.
9.5 The Company shall
have delivered to the Placement Agent a certificate, in the form
acceptable to the Placement Agent, executed by the Secretary of the
Company dated as of the Closing Date, as to (i) the resolutions
consistent with Section
6.3 as adopted by the Company’s board of directors,
(ii) the Certificate of Incorporation of the Company and (iii) the
Bylaws of the Company as in effect at the Closing.
9.6 The Company shall
have delivered to the Placement Agent an opinion of counsel to the
Company, as of the Closing Date, in a form reasonably satisfactory
to the Placement Agent and its counsel.
9.7 No event shall have
occurred which could reasonably be expected to have a Material
Adverse Effect.
ARTICLE
X
INDEMNIFICATION
10.1 Company’s
Obligation to Indemnify. In consideration of the
Buyers’ execution and delivery of this Agreement, and in
addition to all of the Company’s other obligations under this
Agreement, the Company hereby agrees to defend and indemnify each
Buyer and each Buyer’s Affiliates and subsidiaries, and their
respective directors, officers, employees, agents and
representatives, and the successors and assigns of each of them
(collectively, the “Buyer
Indemnified Parties”) and the Company hereby agrees to
hold the Buyer Indemnified Parties harmless, from and against any
and all Claims made, brought or asserted against the Buyer
Indemnified Parties, or any one of them, and the Company hereby
agrees to pay or reimburse the Buyer Indemnified Parties for any
and all Claims payable by any of the Buyer Indemnified Parties to
any Person, including reasonable attorneys’ and
paralegals’ fees and expenses, court costs, settlement
amounts, costs of investigation and interest thereon from the time
such amounts are due at the highest non-usurious rate of interest
permitted by applicable Law, through all negotiations, mediations,
arbitrations, trial and appellate levels, as a result of, or
arising out of, or relating to: (i) any misrepresentation or breach
of any representation or warranty made by the Company in this
Agreement, the Transaction Documents or any other certificate,
instrument or document contemplated hereby or thereby; (ii) any
breach of any covenant, agreement or Obligation of the Company
contained in this Agreement, the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby;
or (iii) any Claims brought or made against the Buyer Indemnified
Parties, or any one of them, by any Person and arising out of or
resulting from the execution, delivery, performance or enforcement
of this Agreement, the Transaction Documents or any other
instrument, document or agreement executed pursuant hereto or
thereto. To the extent that the foregoing undertaking by the
Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of
the Claims covered hereby, which is permissible under applicable
Law. The Company will not be liable to any Buyer under this
indemnity: (i) for any settlement by a Buyer in connection with any
Claim effected without the Company’s prior written consent,
which consent shall not be unreasonably withheld, conditioned or
delayed; or (ii) to the extent, but only to the extent, that a
Claim is attributable to any Buyer’s breach of any of the
representations, warranties, covenants or agreements made by such
Buyer in this Agreement or in the other Transaction
Documents.
ARTICLE
XI
MATTERS RELATING TO THE BUYERS
11.1 Independent
Nature of Buyers’ Obligations and Rights. The
obligations of each Buyer under this Agreement and the Transaction
Documents are several and not joint with the obligations of any
other Buyer, and no Buyer shall be responsible in any way for the
performance of the obligations of any other Buyer under any one or
more of the Transaction Documents. The decision of each Buyer to
purchase the Preferred Stock and the Warrants pursuant to the
Transaction Documents has been made by each such Buyer
independently of any other Buyer and independently of any
information, materials, statements or opinions as to the business,
affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the
Company or of its subsidiaries, if any, which may have been made or
given by any other Buyer or any of their respective officers,
directors, principals, employees, agents, counsel or
representatives (collectively, including the Buyer in question, the
“Buyer
Representatives”). No Buyer Representative shall have
any liability to any other Buyer or the Company relating to or
arising from any such information, materials, statements or
opinions, if any. Each Buyer acknowledges that no other Buyer has
acted as agent for such Buyer in connection with making its
investment hereunder and that no Buyer will be acting as agent of
such other Buyer in connection with monitoring its investment in
the Securities or enforcing its rights under the Transaction
Documents. Each Buyer shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights
arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any Proceeding for such purpose.
The Company and each of the Buyers acknowledge that, for reasons of
administrative convenience the Company has elected to provide each
of the Buyers with the same Transaction Documents for the purpose
of closing a transaction with multiple Buyers and not because it
was required or requested to do so by any Buyer. In furtherance of
the foregoing, and not in limitation thereof, the Company and the
Buyers acknowledge that nothing contained in this Agreement or in
any Transaction Document, and no action taken by any Buyer pursuant
thereto, shall be deemed to constitute any two or more Buyers as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Buyers are in any way
acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction
Documents.
11.2 Equal
Treatment of Buyers. No consideration shall be offered or
paid to any Buyer to amend or consent to a waiver or modification
of any provision of any of the Transaction Documents, unless the
same consideration is also offered to all of the other Buyers
parties to the Transaction Documents.
ARTICLE
XII
TERMINATION
12.1 Termination.
This Agreement may be terminated prior to Closing (i) by written
agreement of the Buyers and the Company, or (ii) by either the
Company or a Buyer (as to itself but no other Buyer) upon written
notice to the other, if the Closing shall not have taken place by
December 6, 2019 (the “Termination Date”), provided that
(x) the Termination Date may be extended until December 31, 2019
upon the mutual consent of the Placement Agent and the Company and
(y) in the event that there shall have occurred any material
adverse change in the financial markets of the United States, any
outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such to
make it, in the judgment of the Placement Agent, impracticable to
market the securities offered hereby or enforce contracts for the
sale of those securities, the Termination Date may be unilaterally
extended by the Placement Agent for a period not to exceed ninety
(90) days from the later of December 6, 2019 or such later date as
may have been previously extended by the Placement Agent and the
Company pursuant to clause (x) above (the “Outside Closing
Date”).
12.2 Consequences
of Termination. No termination of this Agreement shall
release any party from any liability for breach by such party of
the terms and provisions of this Agreement or the other Transaction
Documents.
ARTICLE
XIII
MISCELLANEOUS
13.1 Notices.
All notices of request, demand and other communications hereunder
shall be addressed to the parties as follows:
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If
to the Company:
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0000
Xxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000-0000
Attention:
Xxxxxxxx Xxxxxxxx, CEO
Email:
xxxxxxxxx@xxxxxxxx.xxx
|
|
With a copy
to:
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K&L Gates
LLP
000
Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxx
Email:
xxxx.xxxxx@xxxxxxx.xxx
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If
to the Buyers:
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To each
Buyer based
on the information set forth in the Schedule of Buyers attached
hereto
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unless
the address is changed by the party by like notice given to the
other parties. Notice shall be in writing and shall be deemed
delivered: (i) if mailed by certified mail, return receipt
requested, postage prepaid and properly addressed to the address
below, then three (3) business days after deposit of same in a
regularly maintained U.S. Mail receptacle; or (ii) if mailed by
Federal Express, UPS or other nationally recognized overnight
courier service, next business morning delivery, then one (1)
business day after deposit of same in a regularly maintained
receptacle of such overnight courier; or (iii) if hand delivered,
then upon hand delivery thereof to the address indicated on or
prior to 5:00 p.m., New York time, on a business day. Any notice
hand delivered after 5:00 p.m., New York time, shall be deemed
delivered on the following business day. Notwithstanding the
foregoing, notice, consents, waivers or other communications
referred to in this Agreement may be sent by facsimile, e-mail, or
other method of delivery, but shall be deemed to have been
delivered only when the sending party has confirmed (by reply
e-mail or some other form of written confirmation from the
receiving party) that the notice has been received by the other
party.
13.2 Entire
Agreement. This Agreement, including the Exhibits and
Schedules attached hereto and the documents delivered pursuant
hereto, including the Transaction Documents, set forth all the
promises, covenants, agreements, conditions and understandings
between the parties hereto with respect to the subject matter
hereof and thereof, and supersede all prior and contemporaneous
agreements, understandings, inducements or conditions, expressed or
implied, oral or written, except as contained herein and in the
Transaction Documents; provided, however, except as explicitly
stated herein, nothing contained in this Agreement or any other
Transaction Document shall (or shall be deemed to) (i) have any
effect on any agreements any Buyer has entered into with, or any
instruments any Buyer has received from, the Company prior to the
date hereof with respect to any prior investment made by such Buyer
in the Company or (ii) waive, alter, modify or amend in any respect
any obligations of the Company, or any rights of or benefits to any
Buyer or any other Person, in any agreement entered into prior to
the date hereof between or among the Company and any Buyer, or any
instruments any Buyer received from the Company prior to the date
hereof, and all such agreements and instruments shall continue in
full force and effect..
13.3 Successors
and Assigns. This Agreement, and any and all rights, duties
and obligations hereunder, shall not be assigned, transferred,
delegated or sublicensed by the Company without the prior written
consent of each Buyer. Subject to the foregoing and except as
otherwise provided herein, the provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties
hereto.
13.4 Binding
Effect. This Agreement shall be binding upon the parties
hereto, their respective successors and permitted
assigns.
13.5 Amendment.
Except as specifically set forth herein, neither the Company nor
any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. For clarification
purposes, the Recitals are part of this Agreement. No provision of
this Agreement may be amended other than by an instrument in
writing signed by the Company and the Required Buyers. Any
amendment to any provision of this Agreement made in conformity
with the provisions of this Section 13.5 shall be binding on all
Buyers and holders of Securities, as applicable, provided that no
such amendment shall be effective to the extent that it (1) applies
to less than all of the holders of the Securities then outstanding
or (2) imposes any obligation or liability on any Buyer without
such Buyer’s prior written consent (which may be granted or
withheld in such Buyer’s sole discretion). No waiver shall be
effective unless it is in writing and signed by an authorized
representative of the waiving party, provided that the Required
Buyers may waive any provision of this Agreement, and any waiver of
any provision of this Agreement made in conformity with the
provisions of this Section 13.5 shall be binding on all Buyers and
holders of Securities, as applicable, provided that no such waiver
shall be effective to the extent that it (1) applies to less than
all of the holders of the Securities then outstanding (unless a
party gives a waiver as to itself only) or (2) imposes any
obligation or liability on any Buyer without such Buyer’s
prior written consent (which may be granted or withheld in such
Buyer’s sole discretion). No consideration shall be offered
or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents
unless the same consideration also is offered to all of the parties
to the Transaction Documents who are holders of Securities. The
Company has not, directly or indirectly, made any agreements with
any Buyers relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in
the Transaction Documents. Without limiting the foregoing, the
Company confirms that, except as set forth in this Agreement, no
Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company or otherwise.
As a material
inducement for each Buyer to enter into this Agreement, the Company
expressly acknowledges and agrees that no due diligence or other
investigation or inquiry conducted by a Buyer, any of its advisors
or any of its representatives shall affect such Buyer’s right
to rely on, or shall modify or qualify in any manner or be an
exception to any of, the Company’s representations and
warranties contained in this Agreement or any other Transaction
Document. “Required
Buyers” means Buyers holding a majority of the Closing
Date Conversion Shares and the shares of Common Stock underlying
the Preferred Stock sold pursuant to this Agreement (with the
number of shares underlying such Preferred Stock being measured as
of the Closing Date).
13.6 Gender
and Use of Singular and Plural. All pronouns shall be deemed
to refer to the masculine, feminine, neuter, singular or plural, as
the identity of the party or parties or their personal
representatives, successors and assigns may require.
13.7 Execution.
This Agreement may be executed in one or more counterparts, all of
which taken together shall be deemed and considered one and the
same Agreement, and same shall become effective when counterparts
have been signed by each party and each party has delivered its
signed counterpart to the other party. A digital reproduction,
portable document format (“.pdf”) or other reproduction
of this Agreement may be executed by one or more parties hereto and
delivered by such party by electronic signature (including
signature via DocuSign or
similar services), electronic mail or any similar electronic
transmission device pursuant to which the signature of or on behalf
of such party can be seen. Such execution and delivery shall be
considered valid, binding and effective for all
purposes.
13.8 Headings.
The article and section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
13.9 Governing
Law. This Agreement shall be construed and enforced in
accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be
governed by, the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company hereby irrevocably
submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, 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
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Nothing
contained herein shall be deemed to limit in any way any right to
serve process in any manner permitted by law. In the event that any
provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of this Agreement. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Holder. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
13.10 Further
Assurances. The parties hereto will execute and deliver such
further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purposes of this
Agreement.
13.11 Survival.
The representations and warranties contained herein shall survive
the Closing. Each Buyer shall be responsible only for its own
representations, warranties and covenants hereunder.
13.12 Joint
Preparation. The preparation of this Agreement has been a
joint effort of the parties and the resulting documents shall not,
solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
13.13 Severability.
If any one of the provisions contained in this Agreement, for any
reason, shall be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, and this Agreement
shall remain in full force and effect and be construed as if the
invalid, illegal or unenforceable provision had never been
contained herein.
13.14 No
Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
13.15 WAIVER
OF JURY TRIAL. THE BUYERS AND THE COMPANY, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, IRREVOCABLY, THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT
EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH
THE BUYERS AND THE COMPANY ARE ADVERSE PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BUYERS TO PURCHASE THE PREFERRED STOCK
AND THE WARRANTS.
[SIGNATURES
ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year set forth above.
“COMPANY”
a
Delaware corporation
|
By:_____________________
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Xxxxxxxx
Xxxxxxxx
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|
Chief Executive
Officer
|
BUYERS:
See
Signature pages for each Buyer attached
Company
Signature Page to Securities Purchase Agreement
BUYER SIGNATURE PAGE FOR
SECURITIES PURCHASE AGREEMENT
By its
execution below, the undersigned Buyer hereby acknowledges and
agrees to the terms set forth in the Securities Purchase Agreement
to which this signature page is attached.
|
FOR ENTITY
INVESTORS:
|
FOR INDIVIDUAL
INVESTORS:
|
|
|
|
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_____________________________
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[Name of
Entity]
|
Signature:_____________________
|
|
|
Name:________________________
|
|
By:__________________________
|
|
|
Name:_______________________
|
|
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Title:________________________
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Signature:______________________
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|
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Name:_________________________
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|
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WORK
ADDRESS:
|
HOME
ADDRESS:
|
|
|
|
|
_____________________________
|
_____________________________
|
|
_____________________________
|
_____________________________
|
|
|
|
|
Attention:
_____________________________
|
Phone:
_____________________________
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|
Phone:
_____________________________
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SSN:
_____________________________
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Fax:
_____________________________
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|
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E-mail:
_____________________________
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Taxpayer ID#:
_____________________________
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|
Aggregate
Purchase Price for Buyer’s Securities:
$_________________
Common
Stock Purchase Election ☐
Number
of Closing Date Conversion Shares included in Buyer’s
Securities:____________________
Buyer Signature Page to Securities Purchase
Agreement
BUYER
ADDENDUM RE DEPOSIT
(this information is
required)
(Print
Name of Buyer)
By
signing the Securities Purchase Agreement, the above named Buyer
hereby certifies and confirms that: In the event that the
Buyer’s Purchase Price is returned to the Buyer, which may or
may not occur, the Buyer hereby confirms that such disbursement is
to be made by wire transfer using the following wire transfer
instructions. The the Company and the Placement Agent can rely on
this confirmation and the Buyer will not revoke this confirmation
unless the Buyer confirms to the Company on this form, replacement
wire transfer instructions at least two (2) Business Days before
revoking this confirmation. The Company may withhold any such
disbursement until the Company is reasonably satisfied with the
instructions and procedures for making such
disbursement.
Bank
Name: ____________________
Bank
Address: ____________________
ABA
Number: ____________________
Account
Number: ____________________
Account
Name: ____________________
Reference:
____________________
