ECHO HEALTHCARE ACQUISITION CORP. FOUNDING DIRECTOR WARRANT PURCHASE AGREEMENT
Exhibit
10.2
FOUNDING
DIRECTOR WARRANT
PURCHASE
AGREEMENT
THIS
FOUNDING DIRECTOR WARRANT PURCHASE AGREEMENT (the “Agreement”) is made as of
March 22, 2006, between Echo Healthcare Acquisition Corp., a Delaware
corporation (the “Company”), on the one hand, and Chicago Investments, Inc.,
Windy City, Inc., Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx and Xxxxx Xxxxxxxxxx, on the other hand (collectively, the “Purchasers”
or individually, a “Purchaser”). Except as otherwise indicated herein,
capitalized terms used herein are defined in Section 10 hereof.
WHEREAS,
the Purchasers are directors and stockholders of the Company; and
WHEREAS,
in furtherance of the Company’s plan to obtain funding through an initial public
offering (the “Offering”) of its units (the “Units”), each Unit consisting of
one share of common stock (the “Unit Common Stock”) and one warrant to purchase
one share of common stock (the “Unit Warrants” or a “Unit Warrant”) and to
demonstrate the commitment of the initial stockholders of the Company to
this
plan, the Purchasers desire to make an investment in the Company by purchasing
458,333 warrants in the amounts set forth opposite each Purchaser’s name on
Exhibit
A
(the
“Founding Director Warrants” or a “Founding Director Warrant” ) on the terms and
conditions described herein; and
WHEREAS,
the consummation of this Agreement is a condition to the closing of the Offering
as described in the Underwriting Agreement by and among the Company and Xxxxxx
Xxxxxx & Co. Inc., as representative of the several underwriters (the
“Representative”), which Underwriting Agreement is filed as an exhibit to the
Company’s registration statement on Form S-1, SEC File No. 333-126650, as
the same has been and may be amended from time to time hereafter (the
“Registration Statement”) and filed with the Securities and Exchange Commission
(the “Commission”).
NOW
THEREFORE, in consideration of the mutual promises contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
Section
1. Authorization,
Purchase and Sale; Terms of the Founding Director Warrants.
A. Authorization
of the Founding Director Warrants.
The
Company has authorized, and hereby ratifies such authorization by execution
hereof, the issuance and sale to the Purchasers of an aggregate of 458,333
Founding Director Warrants. Each Founding Director Warrant shall upon exercise
and payment of the exercise price specified therein entitle the holder to
purchase one share of the Company’s common stock, par value $0.0001 per share
(the “Common Stock”).
B. Purchase
and Sale of the Founding Director Warrants.
The
Company shall sell to the Purchasers, and subject to the terms and conditions
set forth herein, the Purchasers shall severally purchase from the Company,
contemporaneously with the closing of the Offering, an aggregate of 458,333
Founding Director Warrants. Each Purchaser shall purchase that number of
the
Founding Director Warrants as is set forth opposite his name in the table
contained in Exhibit
A
hereto.
The purchase price of each Founding Director Warrant shall be $1.20 per warrant
(the “Purchase Price”), which shall be paid in immediately available funds
through wire transfers to the trust account (the “Trust Account”) to be
established pursuant to that certain Investment Management Trust Agreement
by
and between the Company and Corporate Stock Transfer, Inc. (“CST”). The Purchase
Price shall be wired to the Trust Account by the Purchasers so as to be on
deposit in the Trust Account not less than 24 hours prior to the closing
of the
Offering. Amounts so received in the Trust Account shall be credited against
the
respective purchase obligations of the Purchasers as described on Exhibit
A
hereto.
C. Terms
of the Founding Director Warrants.
The
Founding Director Warrants shall carry rights and terms identical to those
possessed by the Unit Warrants described in the Registration Statement, subject
to the following exceptions: the Founding Director Warrants (i) will not be
transferable or salable by the Purchasers until such time as the Company
has
completed a Business Combination, (ii) will be non-redeemable so long as
the Purchasers hold such warrants following their issuance by the Company
to
such Purchasers, and (iii) together with the shares of Common Stock
underlying the Founding Director Warrants, are and will be entitled to
registration rights under the registration rights agreement (the “Registration
Rights Agreement”) to be signed contemporaneously herewith between the
Purchasers, the Initial Stockholders (as such term is defined in the
Registration Statement) and the Company. The transfer restriction set forth
in
(i) above shall not apply to (a) transfers resulting from the death of
any of the Purchasers, (b) transfers by operation of law, (c) any
transfer for estate planning purposes to persons immediately related to the
transferor by blood, marriage or adoption, or (d) any trust solely for the
benefit of such transferor and/or the persons described in the preceding
clause;
provided, however, that with respect to each of the transfers described in
clauses (a), (b), (c) and (d) of this sentence, that prior to such
transfer, each permitted transferee or the trustee or legal guardian for
each
permitted transferee (hereinafter collectively, “Permitted Transferees” or a
“Permitted Transferee”) agrees in writing to be bound by the terms of this
Agreement. Should any of the Purchasers transfer or sell Founding Director
Warrants to persons other than Permitted Transferees after the Company has
completed a Business Combination, then such Founding Director Warrants shall
on
the date of such transfer immediately become redeemable under the same terms
as
the Unit Warrants. Except as specifically provided in this Agreement, the
terms
of the Founding Director Warrants shall in all other respects be as set forth
in
the Warrant Agreement relating to the Unit Warrants by and between the Company
and CST. In the event of any conflict between this Agreement and the Warrant
Agreement, the terms and provisions of which are incorporated herein by
reference, this Agreement shall control.
Section
2. The
Closing.
The
closing of the purchase and sale of the Founding Director Warrants to the
Purchasers (the “Closing”) shall take place at the offices of Xxxxxx Xxxxxxxxx
at One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, XX, Xxxxxxx Xxxxxxx 00000
at
or immediately prior to the closing of the Offering. At the Closing, the
Company
shall deliver warrant certificates evidencing the Founding Director Warrants
to
be purchased by the Purchasers hereunder, registered in each Purchaser’s name,
upon the payment of the aggregate purchase price therefor, by wire transfer
of
immediately available funds to the Trust Account.
Section
3. Representations
and Warranties of the Company.
As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Founding Director Warrants, the Company hereby represents and warrants
that:
A. Organization
and Corporate Power.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business in
every
jurisdiction in which the failure to so qualify would reasonably be expected
to
have a material adverse effect on the financial condition, operating results
or
assets of the Company. The Company possesses all requisite corporate power
and
authority necessary to carry out the transactions contemplated by this
Agreement.
B. Authorization;
No Breach.
(i) The
execution, delivery and performance of this Agreement to which the Company
is a
party will have been duly authorized by the Company as of the Closing upon
the
approval hereof by the Company and its Board of Directors. This Agreement
constitutes a valid and binding obligation of the Company, enforceable in
accordance with its terms upon its execution.
(ii) The
execution and delivery by the Company of this Agreement, the sale and issuance
of the Founding Director Warrants hereunder, the issuance of the Common Stock
upon exercise of the Founding Director Warrants (except, with respect thereto,
any filings required under Federal or state securities laws or issuance of
one
or more legal opinions in form and content reasonably satisfactory to the
Company pertaining to the availability of one or more
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exemptions
with respect to the issuance of the Founding Director Warrants under applicable
securities laws) and the fulfillment of and compliance with the respective
terms
hereof and thereof by the Company, do not and will not as of the Closing
(i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the
creation of any lien, security interest, charge or encumbrance upon the
Company’s capital stock or assets pursuant to, (iii) result in a violation
of, or (iv) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or filing with, any court or
administrative or governmental body or agency pursuant to the Certificate
of
Incorporation of the Company or the bylaws of the Company, or any material
law,
statute, rule or regulation to which the Company is subject, or any agreement,
order, judgment or decree to which the Company is subject, except for any
filings required after the date hereof under Federal or state securities
laws.
C. Title
to Securities.
Upon
issuance in accordance with, and payment pursuant to, the terms hereof, the
Founding Director Warrants to be purchased hereunder and, upon exercise of
the
Founding Director Warrants, payment of the exercise price set forth therein
and
conformance with the other provisions relating to the exercise thereto, the
Common Stock issuable upon exercise of such Founding Director Warrants will
be
duly and validly issued, fully paid, nonassessable, and the Purchasers will
have
or receive good title to such securities, free and clear of all liens, claims
and encumbrances of any kind, other than (a) transfer restrictions
hereunder and under the other agreements contemplated hereby, (b) transfer
restrictions under federal and state securities laws, and (c) liens, claims
or encumbrances imposed due to the actions of the Purchaser.
D. Governmental
Consents.
No
permit, consent, approval or authorization of, or declaration to or filing
with,
any governmental authority is required in connection with the execution,
delivery and performance by the Company of this Agreement, or the consummation
by the Company of any other transactions contemplated hereby.
E. Disclosure.
(a) The Company has provided each Purchaser with a copy of the Registration
Statement and each Amendment to the Company’s Registration Statement, or
informed each Purchaser of the filing thereof and instructed or requested
the
Purchasers to review the Registration Statement and each such Amendment on
the
Commission’s website . The Company will provide the Purchasers with a copy of
any and all amendments to the Registration Statement filed by the Company
with
the Commission prior to the Closing. (b) To the best of the Company’s
knowledge as of the date hereof, neither this Agreement nor the Registration
Statement, taken as a whole, contains any untrue statement of a material
fact or
omits to state a material fact necessary to make the statements herein or
therein not misleading in light of the circumstances in which such statements
were made.
Section
4. Representations,
Warranties and Covenants of Purchasers.
As a
material inducement to the Company to enter into this Agreement and issue
and
sell the Founding Director Warrants to the Purchasers, the Purchasers hereby
severally represent, warrant and covenant to the Company (which representations,
warranties and covenants shall survive the Closing) that:
A. Capacity
and State Law Compliance.
Each
Purchaser is an individual over the age of 21 years with the legal capacity
to
execute and perform the obligations imposed on each of the Purchasers hereunder.
Each Purchaser has engaged in the transactions contemplated by this Agreement
within a state in which the offer and sale of the Founding Director Warrants
is
permitted under applicable securities laws. The Purchaser understands and
acknowledges that the purchase of Common Stock on exercise of the Founding
Director Warrants may require the registration of such Common Stock under
Federal and/or state securities laws or the availability of an exemption
from
such registration requirements.
B. Authorization;
No Breach.
(i) This
Agreement constitutes a valid and binding obligation of each Purchaser,
enforceable in accordance with its terms.
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(ii) The
execution and delivery by Purchasers of this Agreement and the fulfillment
of
and compliance with the respective terms hereof by Purchasers do not and
shall
not as of the Closing conflict with or result in a breach of the terms,
conditions or provisions of any other agreement, instrument, order, judgment
or
decree to which Purchaser is subject.
C. Investment
Representations.
(i)
Each
of
the Purchasers is acquiring the Founding Director Warrants and, upon exercise
thereof, the Common Stock issuable upon such exercise (collectively, the
“Securities”) for his own account, for investment only and not with a view
towards, or for resale in connection with, any public sale or distribution
thereof.
(ii)
Each
Purchaser is an “accredited investor” as defined in Rule 501(a)(3) of Regulation
D.
(iii)
Each
Purchaser understands that the Securities are being offered and sold to him
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 Purchaser’s compliance with, the
representations, warranties and agreements of Purchaser set forth herein
in
order to determine the availability of such exemptions and the eligibility
of
Purchaser to acquire such securities.
(iv) Each
Purchaser initiated discussions with the Company relating to the purchase
and
sale of the Securities contemplated by this Agreement on an unsolicited basis
prior to the date of this Agreement. The Purchasers did not initiate such
discussions, nor did Purchasers decide to enter into this Agreement, as a
result
of any general solicitation or general advertising within the meaning of
Rule
502(c) under the Securities Act of 1933, as amended (the “Securities Act”),
including the filing of the Registration Statement.
(v) Each
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities which have been requested by Purchaser. Each Purchaser
has been afforded the opportunity to ask questions of the other executive
officers and directors of the Company. Each Purchaser understands that his
investment in the Securities involves a high degree of risk. Each Purchaser
has
sought such accounting, legal and tax advice as he has considered necessary
to
make an informed investment decision with respect to his acquisition of the
Securities. Each Purchaser has received and reviewed a copy of the Registration
Statement, including without limitation, the language therein under the caption
“Risk Factors,” and signed the Registration Statement signature page in his
capacity as an officer or director (or both) of the Company, as the case
may be.
(vi)
Each
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency 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 authorities passed upon or endorsed the merits
of the offering of the Securities.
(vii)
Each
Purchaser understands that: (a) the Securities have not been and are not
being registered under the Securities Act or any state securities laws, and
may
not be offered for sale, sold, assigned or transferred unless
(A) subsequently registered thereunder or (B) sold in reliance on an
exemption therefrom; and (b) except as specifically set forth in the
Registration Rights Agreement, neither the Company nor any other person is
under
any obligation to register such securities under the Securities Act or any
state
securities laws or to comply with the terms and conditions of any exemption
thereunder. In this regard, each Purchaser represents that he is familiar
with
Rule 144 adopted pursuant to the Securities Act, and understands the resale
limitations imposed thereby and by the Securities Act. Each Purchaser is
able to
bear the economic risk of its investment in the Securities for an indefinite
period of time.
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(viii)
Each
Purchaser is an investor in securities of companies in the development stage
and
acknowledges that he is able to fend for himself, has knowledge and experience
in financial and business matters, knows of the high degree of risk associated
with investments generally and particularly investments in the securities
of
companies in the development stage such as the Company, is capable of evaluating
the merits and risks of an investment in the Securities and is able to bear
the
economic risk of an investment in the Securities in the amount contemplated
hereunder. Each Purchaser has adequate means of providing for his current
financial needs and contingencies and will have no current or anticipated
future
needs for liquidity which would be jeopardized by the investment in the
Securities. Each Purchaser can afford a complete loss of his investment in
the
Securities.
(ix)
Without
in any way limiting the representations set forth above, the Purchasers agree
not to make any disposition of all or any portion of the Securities unless
and
until:
(a) There
is
then in effect a registration statement under the Securities Act covering
such
proposed disposition and such disposition is made in accordance with such
registration statement; or
(b) (i)
The
Purchaser shall have notified the Company of the proposed disposition and
shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (ii) if reasonably requested by
the Company, the Purchaser shall have furnished the Company with an opinion
of
counsel, reasonably satisfactory to the Company, that such disposition will
not
require registration of such Securities under the Securities Act.
Notwithstanding the foregoing, each Purchaser also understands and acknowledges
that the transfer or exercise of the Founding Director Warrants is subject
to
the specific conditions to such transfer or exercise as outlined herein,
as to
which each Purchaser specifically assents by his execution hereof.
D. No
Group.
By
virtue of the Purchasers purchasing the Founding Director Warrants under
this
Agreement, such participation shall not be construed so as to make any of
the
Purchasers part of, or a participant in, a “group” as defined in Rule 13d-5 of
the Exchange Act with respect to any securities of the Company.
E. Rescission
Right Waiver and Indemnification.
(i) Each
of
the Purchasers understands and acknowledges that an exemption from the
registration requirements of the Securities Act requires that there be no
general solicitation of purchasers of the Founding Director Warrants. In
this
regard, if the Offering of the Units were deemed to be a general solicitation
with respect to the Founding Director Warrants, the offer and sale of such
Founding Director Warrants may not be exempt from registration and, if not,
the
Purchasers may have a right to rescind their purchases of the Founding Director
Warrants. In order to facilitate the completion of the Offering and in order
to
protect the Company, its stockholders and the Trust Account from claims that
may
adversely affect the Company or the interests of its stockholders, each of
the
Purchasers hereby agrees to waive, to the maximum extent permitted by applicable
law, any claims, right to xxx or rights in law or arbitration, as the case
may
be, to seek rescission of his purchase of the Founding Director Warrants.
Each
of the Purchasers acknowledges and agrees that this waiver is being made
in
order to induce the Company to sell the Founding Director Warrants to the
Purchasers. Each Purchaser agrees that the foregoing waiver of rescission
rights
shall apply to any and all known or unknown actions, causes of action, suits,
claims, or proceedings (collectively, “Claims”) and related losses, costs,
penalties, fees, liabilities and damages, whether compensatory, consequential
or
exemplary, and expenses in connection therewith (collectively, “Losses and
Expenses”) including reasonable attorneys’ and expert witness fees and
disbursements and all other expenses reasonably incurred in investigating,
preparing or defending against any Claims, whether pending or threatened,
in
connection with any present or future actual or asserted right to rescind
the
purchase of the Founding Director Warrants hereunder or relating to the purchase
of the Founding Director Warrants and the transactions contemplated hereby.
5
(ii) Each
Purchaser agrees not to seek recourse against the Trust Account for any reason
whatsoever in connection with his purchase of the Founding Director Warrants
or
any Claim that may arise now or in the future.
(iii) The
Purchasers (collectively, “Indemnitors”) agree to severally indemnify and hold
harmless the Company, the Representative, the underwriters of the Offering
and
the Trust Account against any and all Losses and Expenses whatsoever to which
the Company, the Representative and the Trust Account may become subject
as a
result of the purchase of the Founding Director Warrants by the Purchasers
or a
Purchaser, including but not limited to any Claim by any Purchaser of the
Founding Director Warrants, but only to the extent necessary to ensure that
such
Losses and Expenses do not reduce the amount in the Trust Account. To the
extent
that the foregoing several indemnification by the Indemnitors may be
unenforceable for any reason, each of the Indemnitors agree to make the maximum
contribution permissible by applicable law to the payment and satisfaction
of
any Losses and Expenses relating to Claims that may or will otherwise reduce
the
amount in the Trust Account. Any Losses and Expenses indemnified hereunder
by
the Indemnitors will be paid equally by them except to the extent that such
Claims are brought by either of the Indemnitors, in which case the foregoing
indemnity obligation shall only be that of the person making the Claim, it
being
the understanding and agreement of the Indemnitors that each of them shall
be
held harmless by the other as to any Claims, Losses and Expenses.
(iv) The
Purchasers acknowledge and agree that the stockholders of the Company, including
those who purchase the Units in the Offering, are and shall be third-party
beneficiaries of the foregoing provisions of Section 5G of this Agreement.
(v) Each
Purchaser agrees that to the extent any waiver of rights under this Section
4. E
is
ineffective as a matter of law, each Purchaser has offered such waiver for
the
benefit of the Company as an equitable right that shall survive any statutory
disqualification or bar that applies to a legal right. Each Purchaser
acknowledges the receipt and sufficiency of consideration received from the
Company hereunder in this regard.
Section
5. Conditions
of the Purchasers’ Obligations at the Closing.
The
obligation of the Purchasers to purchase and pay for the Founding Director
Warrants is subject to the fulfillment, at or before the Closing, of each
of the
following conditions:
A. Representations
and Warranties.
The
representations and warranties of the Company contained in Section 3,
except for those stated to be made as of the date hereof, shall be true and
correct in all material respects at and as of the Closing as though then
made,
except to the extent of changes caused by the transactions expressly
contemplated herein or in the prospectus contained in the Registration
Statement.
B. Performance.
The
Company shall have performed and complied with all agreements, obligations
and
conditions contained in this Agreement that are required to be performed
or
complied with by it on or before the Closing.
C. Registration
Statement. The
Registration Statement shall have been declared effective by the Commission
and
the closing of the Offering shall take place within four business days of
such
effective date or, if the Registration Statement is declared effective before
2:00 p.m. on a business day, the closing of the Offering shall take place
within
three business days of such effective date.
6
Section
6. Conditions of the Company’s Obligations at the Closing.
The
obligations of the Company to the Purchasers under this Agreement are subject
to
the fulfillment on or before the Closing of each of the following conditions:
A. Representations
and Warranties.
The
representations and warranties of Purchasers contained in Section 4 shall
be true at and as of the Closing as though then made.
B. Performance.
The
Purchasers shall have performed and complied with all agreements, obligations
and conditions contained in this Agreement that are required to be performed
or
complied with by them on or before the Closing.
C. Corporate
Consents.
The
Company shall have obtained the consent of its Board of Directors authorizing
the execution, delivery and performance of this Agreement and the issuance
and
sale of the Founding Director Warrants hereunder.
Section
7. Termination.
This
Agreement may or will be terminated at any time prior to the consummation
of the
Closing under the following described circumstances:
(i) automatically
upon the mutual written consent of the Company and the Purchasers;
(ii) by
either
of the Company or the Purchasers by delivery of written notice thereof, if
the
Offering shall not have been consummated prior to the one-month anniversary
of
the date of this Agreement; or
(iii)
automatically
if the Offering is not closed within the time periods described in the
Underwriting Agreement after the Registration Statement is declared effective.
Section
8. Survival
of Representations and Warranties.
All of
the representations and warranties contained herein shall survive the Closing
for a period of six (6) months except as otherwise specifically provided
herein.
Section
9. Definitions.
For the
purposes of this Agreement, the following terms have the meanings set forth:
“Affiliate”
of any particular Person means any other Person controlling, controlled by
or
under common control with such particular Person, where “control” means the
possession, directly or indirectly, of the power to direct the management
and
policies of a Person whether through the ownership of voting securities,
contract or otherwise.
“Business
Combination” means a merger, stock exchange, asset acquisition or similar
business combination of the Company with a target business or businesses
that is
its initial business combination and which meets the size, timing and other
criteria outlined in the Registration Statement.
“Common
Stock” means the Company’s Common Stock, par value $0.0001 per share.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Person”
means any individual, partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization or governmental entity or any department, agency or political
subdivision thereof.
“Securities
Act” means the Securities Act of 1933, as amended.
7
“Securities
and Exchange Commission” or “Commission” means the United States Securities and
Exchange Commission.
Section
10. Miscellaneous.
A. Legends.
(i) The
certificates evidencing the Founding Director Warrants will include the legend
set forth below, which the Purchasers have read and understand:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY NOT BE OFFERED,
SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
INVESTMENT REPRESENTATIONS AND RESTRICTIONS ON TRANSFER OR SALE PURSUANT
TO A
PURCHASE AGREEMENT DATED MARCH 22, 2006, WHICH RESTRICTS THE TRANSFER THEREOF,
A
COPY OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE OFFICES.
(ii) By
accepting the certificates bearing the aforesaid legend, each Purchaser agrees,
prior to any permitted transfer of the Securities represented by the
certificates and subject to the restrictions contained herein, to give written
notice to the Company expressing his desire to effect such transfer and
describing briefly the proposed transfer. Upon receiving such notice, the
Company shall present copies thereof to its counsel and the following provisions
shall apply:
(a) subject
to the transfer restrictions contained elsewhere in this Agreement, if, in
the
reasonable opinion of counsel to the Company, the proposed transfer of such
Securities may be effected without registration under the Securities Act
and
applicable state securities acts, the Company shall promptly thereafter notify
the transferring Purchaser, whereupon the transferring Purchaser shall be
entitled to transfer such Securities, all in accordance with the terms of
the
notice delivered by the transferring Purchaser and upon such further terms
and
conditions as shall be required to ensure compliance with the Securities
Act and
the applicable state securities acts, and, upon surrender of the certificate
evidencing such Securities, in exchange therefor, a new certificate not bearing
a legend of the character set forth above if such counsel reasonably believes
that such legend is no longer required under the Securities Act and the
applicable state securities acts; and
(b) subject
to the transfer restrictions contained elsewhere in this Agreement, if, in
the
reasonable opinion of counsel to the Company, the proposed transfer of such
Securities may not be effected without registration under the Securities
Act or
the applicable state securities acts, a copy of such opinion shall be promptly
delivered to the transferring Purchaser, and such proposed transfer shall
not be
made unless such registration is then in effect.
(iii) The
Company may, from time to time, make stop transfer notations in its records
and
deliver stop transfer instructions to its transfer agent to the extent its
counsel considers it necessary to ensure compliance with the Securities Act
and
the applicable state securities acts.
B. Successors
and Assigns.
Except
as otherwise expressly provided herein, all covenants and agreements contained
in this Agreement by or on behalf of any of the parties hereto shall bind
and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. Notwithstanding the foregoing or anything
to
the contrary herein, the parties may not assign this Agreement.
8
C. Severability.
Whenever possible, each provision of this Agreement shall be interpreted
in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable
law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of this Agreement.
D. Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, any
one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
E. Descriptive
Headings; Interpretation.
The
descriptive headings of this Agreement are inserted for convenience only
and do
not constitute a substantive part of this Agreement. The use of the word
“including” in this Agreement shall be by way of example rather than by
limitation.
F. Governing
Law.
The
general corporation law of the State of Delaware shall govern all issues
and
questions concerning the construction, validity, enforcement and interpretation
of this Agreement, without giving effect to any choice of law or conflict
of law
rules or provisions that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
G. Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall
be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by reputable overnight courier service (charges prepaid) or
mailed
to the recipient by certified or registered mail, return receipt requested
and
postage prepaid. Such notices, demands and other communications shall be
sent:
| If to the Company: |
0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Xxxx Xxxxxx, President
Facsimile:
(000) 000-0000
|
|
With
a copy to:
|
Xxxxxx
Xxxxxxxxx LLP
One
Atlantic Center, Fourteenth Floor
0000
Xxxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxx,
Xxxxxxx 00000-0000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Facsimile:
(000) 000-0000
|
If
to the
Purchaser: At the address of the respective Purchaser as set forth in the
records of the Company or to such other address or to the attention of such
other person as the recipient party has specified by prior written notice
to the
sending party.
H. No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting
of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
9
IN
WITNESS WHEREOF, the parties hereto have executed this Purchase Agreement
on the
date first written above.
|
By:
/s/
Xxxx X. Xxxxxxxx
Name:
Xxxx
X. Xxxxxxxx
Title:
Chief
Executive Officer
Chicago
Investments, Inc.:
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxxxx
X. Xxxxxx
Title:
President
Windy
City, Inc.:
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
President
Xxxx
X. Xxxxxxxx:
/s/
Xxxx X. Xxxxxxxx
Xxxx
X. Xxxxxxxx:
/s/
Xxxx X. Xxxxxxxx
Xxxxxxxx
Xxxxxx:
/s/
Xxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxx:
/s/
Xxxxxxx Xxxxxx
Xxxxx
Xxxxxxxxxx:
/s/
Xxxxx Xxxxxxxxxx
|
10
Exhibit
A
|
Chicago
Investments, Inc.
|
$305,000
|
|
Windy
City, Inc.
|
$12,500
|
|
Xxxx
Xxxxxxxx
|
$10,000
|
|
Xxxx
X. Xxxxxxxx
|
$160,000
|
|
Xxxxxxxx
Xxxxxx
|
$15,000
|
|
Xxxxxxx
Xxxxxx
|
$25,000
|
|
Xxxxx
Xxxxxxxxxx
|
$22,500
|
The
address for each of the above is:
0000
Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000.
