contemplated hereby; provided, however, that as lead placement agent, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLC may engage other placement agents.
m. No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
n. Remedies. Each Buyer and each holder of the Securities shall have all
rights and remedies set forth in the Transaction Documents and all rights and
remedies that such Buyer and holders have been granted at any time under any
other agreement or contract and all of the rights that such Buyer and holders
have under any law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting
a bond or other security or proving actual damages), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law, or in equity.
o. Rescission and Withdrawal Right. Notwithstanding anything to the
contrary contained in (and without limiting any similar provisions of) the
Transaction Documents, whenever any Buyer exercises a right, election, demand or
option under a Transaction Document and the Company or any of its Subsidiaries
does not timely perform its related obligations within the periods therein
provided, then such Buyer may rescind or withdraw, in its sole discretion from
time to time upon written notice to the Company, any relevant notice, demand or
election in whole or in part without prejudice to its future actions and rights.
p. Payment Set Aside. To the extent that the Company or any of its
Subsidiaries makes a payment or payments to a Buyer pursuant to this Agreement,
the Registration Rights Agreement, the Notes, the Shares, the Guaranty or any
other Transaction Document or a Buyer enforces or exercises its rights hereunder
or thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company or any of
its Subsidiaries, by a trustee, receiver or any other Person under any law
(including any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
q. Independent Nature of Buyers. The obligations of each Buyer hereunder
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 hereunder. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder. The decision
of each Buyer to purchase the Securities pursuant to this Agreement has been
made by 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 any of its Subsidiaries
which may have been made or given by any other Buyer or by any agent or employee
of any other Buyer, and no Buyer or any of its agents or employees shall have
any liability to any other Buyer (or any other Person or entity) relating to or
arising from any such information, materials, statements or opinions. Nothing
contained herein, and no action taken by any Buyer pursuant hereto or thereto,
shall be deemed to constitute the 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 hereby. Each Buyer shall be
entitled to independently protect and enforce its rights, including the rights
arising out of this Agreement, the Notes, the Shares, and 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.
r. Interpretative Matters. Unless the context otherwise requires, (i) all
references to Sections, Schedules, Appendices or Exhibits are to Sections,
Schedules, Appendices or Exhibits contained in or attached to this Agreement,
(b) each accounting term not otherwise defined in this Agreement has the meaning
assigned to it in accordance with GAAP, (c) words in the singular or plural
include the singular and plural and pronouns stated in either the masculine, the
feminine or neuter gender shall include the masculine, feminine and neuter, (d)
the words \"hereof,\" \"herein\" and words of similar effect shall reference
this Agreement in its entirety, and (e) the use of the word \"including\" in
this Agreement shall be by way of example rather than limitation.
* * * * * *
IN WITNESS WHEREOF, Buyer and the Company have caused this Securities Purchase
Agreement to be duly executed as of the date first written above.
COMPANY:
AVERION INTERNATIONAL CORP.
By:
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
[Company Signature Page to Securities Purchase Agreement]
BUYER:
COMVEST INVESTMENT PARTNERS II, LLC, a Delaware limited liability company
By:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Member
CUMULUS INVESTORS, LLC, a Nevada limited liability company
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, PH.D., in his individual capacity
[Buyer Signature Page to Securities Purchase Agreement]
SCHEDULE OF BUYERS
Buyer's Name Buyer Address and Contact Info Principal Amount of Initial
Notes Initial Allocation Percentage Principal Amount of Add'l Notes
Additional Closing Allocation Percentage Aggregate Total Principal Amount of
all Notes Number of Shares to be Delivered at Initial Closing Number of
Shares to be Delivered at Additional Closing Total Buyer Allocation
Percentage Buyer's Representative'sAddress and Facsimile Number (to receive
copies of notices)
ComVest Investment Partners II LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇: [ ]Fax: [
] $11,000,000 45.83% $2,000,000 100% $13,000,000
52,800,000 9,600,000 50% Akerman SenterfittAttn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ S.E.
Third AvenueMiami, Florida 33131Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq. Tel: 305-374-5600Fax:
305-374-5095
Cumulus Investors, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇: [ ]Tel: [ ]Fax: [ ]
$11,000,000 45.83% $0 0% $11,000,000 52,800,000 0
42.31% [ ]
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ c/▇ ▇▇▇▇▇▇▇ International Corp.▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇.▇▇▇: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
$2,000,000 8.34% $0 0% $2,000,000 9,600,000 0 7.69%
[ ]
APPENDIX
CERTAIN DEFINED TERMS
For purposes of this Agreement, the following terms shall have the following
meanings:
\"Acquisition Closing Date\" means the date and time of the Closing of the
Hesperion Acquisition, which shall be contemporaneous with the Closing Date.
\"Affiliate\" means, with respect to any Person, another Person that, directly
or indirectly, (i) has a 5% equity interest in that Person, (ii) has a common
ownership with that Person, (iii) controls that Person, (iv) is controlled by
that Person or (v) shares common control with that Person; and \"control\" or
\"controls\" means that a Person has the power, direct or indirect, to conduct
or govern the policies of another Person.
\"Bloomberg\" means Bloomberg Financial Markets (or any successor thereto).
\"Business Day\" means any day other than Saturday, Sunday or other day on which
commercial banks in the New York City are authorized or required by law to
remain closed.
\"Capital Lease Obligation\" means, as to any Person, any obligation that is
required to be classified and accounted for as a capital lease on a balance
sheet of such Person prepared in accordance with GAAP, and the amount of such
obligation shall be the capitalized amount thereof, determined in accordance
with GAAP.
\"Capital Stock\" means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, and any and
all equivalent ownership interests in a Person (other than a corporation).
\"Collateral\" has the meaning assigned to such term in the Security Agreement.
\"Common Stock\" means the Company's common stock, par value $0.001 per share.
\"Contingent Obligation\" means, as to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another Person if a primary
purpose or intent of the Person incurring such liability, or a primary effect
thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such liability will be protected
(in whole or in part) against loss with respect thereto.
\"Convertible Securities\" means any stock or securities (other than Options)
directly or indirectly convertible into or exchangeable or exercisable for
shares of Common Stock.
\"Environmental Laws\" means all Laws relating to any matter arising out of or
relating to public health and safety, or pollution or protection of the
environment (including ambient air, surface water, groundwater, land surface or
subsurface strata) or workplace, including any of the foregoing relating to the
presence, use, production, generation, handling, transport, treatment, storage,
disposal, distribution, discharge, emission, release, threatened release,
control or cleanup of any Hazardous Materials.
\"ERISA\" means the Employee Retirement Security Act of 1974, as amended.
\"GAAP\" means U.S. generally accepted accounting principles.
\"Governmental Entity\" means the government of the United States or any other
nation, or any political subdivision thereof, whether state, provincial or
local, or any agency (including any self-regulatory agency or organization),
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administration powers or functions of or pertaining to government.
\"Hazardous Materials\" means any hazardous, toxic or dangerous substance,
materials and wastes, including hydrocarbons (including naturally occurring or
man-made petroleum and hydrocarbons), flammable explosives, asbestos, urea
formaldehyde insulation, radioactive materials, biological substances,
polychlorinated biphenyls, pesticides, herbicides and any other kind and/or type
of pollutants or contaminants (including materials which include hazardous
constituents), sewage, sludge, industrial slag, solvents and/or any other
similar substances, materials, or wastes and including any other substances,
materials or wastes that are or become regulated under any Environmental Law
(including any that are or become classified as hazardous or toxic under any
Environmental Law).
\"Hesperion Note\" means that certain promissory note originally issued by the
Company in accordance with Section 1.1(b) of the Hesperion Acquisition
Agreement.
\"Hesperion Sellers\" means the parties to the Hesperion Acquisition Agreement
other than the Company.
\"Hesperion Transaction Documents\" means the Hesperion Acquisition Agreement
and each of the other agreements or instruments to which the Company, Hesperion
or any of the Hesperion Sellers is a party or by which the Company, Hesperion or
any of the Hesperion Sellers is bound and which is entered into by the Company,
Hesperion and/or any of the Hesperion Sellers in connection with the Hesperion
Acquisition.
\"Indebtedness\" of any Person means, without duplication:
(i) All indebtedness for borrowed money;
(ii) All obligations issued, undertaken or assumed as the deferred purchase
price of property or services.
(iii) All reimbursement or payment obligations with respect to letters of
credit, surety bonds and other similar instruments;
(iv) All obligations evidenced by notes, bonds, debentures, redeemable
capital stock or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses;
(v) All indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to any property or assets acquired with the proceeds of such indebtedness (even
though the rights and remedies of the seller, bank or other financing source
under such agreement in the event of default are limited to repossession or sale
of such property);
(vi) All Capital Lease Obligations;
(vii) All indebtedness referred to in clauses (i) through (vi) above secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge,
security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by any Person, even though the
Person that owns such assets or property has not assumed or become liable for
the payment of such indebtedness; and
(viii) All Contingent Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (i) through (vii) above.
\"Insolvent\" means, with respect to any Person as of any date, (i) the present
fair saleable value of such Person's assets is less than the amount required to
pay such Person's total indebtedness, contingent or otherwise, (ii) such Person
is unable to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured, (iii) such
Person intends to incur, prior to the second anniversary of such date, or
believes that it will incur, prior to the second anniversary of such date, debts
that would be beyond its ability to pay as such debts mature, or (iv) such
Person has unreasonably small capital with which to conduct the business in
which it is engaged as such business is then conducted and is then proposed to
be conducted.
\"Investment Company Act\" means the Investment Company Act of 1940, as amended.
\"Knowledge,\" \"Knowledge of the Company,\" \"to the Company's Knowledge\" and
similar language means the actual knowledge of any \"officer\" (as such term is
defined in Rule 16a-1 under the 1934 Act) of the Company or of any Subsidiary
after a reasonable inquiry.
\"▇▇▇▇▇ Notes\" shall mean those certain promissory notes originally issued by
IT&E International Group, Inc., a Delaware corporation and predecessor to the
Company, dated July 31, 2006, as follows: (i) promissory notes with a repayment
term of two (2) years in the original aggregate principal amount of $700,000 (of
which $566,242 in principal amount was issued directly to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇);
and (ii) promissory notes with a repayment term of five (5) years in the
original aggregate principal amount of $5,700,000 (of which $4,610,828 in
principal amount was issued directly to ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇).
\"Laws\" means all present or future federal, state local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative or judicial orders, judgments, decrees, rulings, consent
agreements, directed duties, requests, licenses, authorizations and permits of,
and agreements with, any Governmental Entity.
\"Lien\" means with respect to any asset or property, any mortgage, lien,
pledge, hypothecation, charge, security interest, encumbrance or adverse claim
of any kind and any restrictive covenant, condition, restriction or exception of
any kind that has the practical effect of creating a mortgage, lien, pledge,
hypothecation, charge, security interest, encumbrance or adverse claim of any
kind (including any of the foregoing created by, arising under or evidenced by
any conditional sale or other title retention agreement, the interest of a
lessor with respect to a Capital Lease Obligation, or any financing lease having
substantially the same economic effect as any of the foregoing).
\"Material Adverse Effect\" means any changes, circumstances, effects,
occurrences or events that, individually or in the aggregate, have or could
reasonably be expected to have, a material adverse effect on (i) the business,
properties, assets, operations, results of operations, condition (financial or
otherwise), credit worthiness or prospects of the Company and its Subsidiaries,
taken as a whole, (ii) any of the transactions contemplated by the Transaction
Documents, or (iii) the authority or ability of the Company or any of its
Subsidiaries to enter into the Transaction Documents and perform its obligations
thereunder.
\"Millennix Notes\" means those certain subordinated promissory notes originally
issued and still outstanding by IT&E International Group, Inc., a Delaware
corporation and predecessor to the Company, dated November 9, 2005, in the
original aggregate principal amount of $980,820.58 (all of which was issued
directly to ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇).
\"Options\" means any rights, warrants or options to subscribe for or purchase
shares of Common Stock or Convertible Securities.
\"Organic Change\" means any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Company's assets
to another Person or other transaction that is effected in such a way that
holders of Common Stock are entitled to receive (either directly or upon
subsequent liquidation) stock, securities or assets with respect to, or in
exchange for, Common Stock.
\"Permitted Lien\" means:
(i) Liens created by the Security Documents;
(ii) Liens for taxes or other governmental charges not at the time due and
payable, or which are being contested in good faith by appropriate proceedings
diligently prosecuted, so long as foreclosure, distraint, sale or other similar
proceedings have not been initiated, and in each case for which the Company and
its Subsidiaries maintain adequate reserves in accordance with GAAP in respect
of such taxes and charges;
(iii) Liens arising in the ordinary course of business in favor of carriers,
warehousemen, mechanics and materialmen, or other similar Liens imposed by law,
which remain payable without penalty or which are being contested in good faith
by appropriate proceedings diligently prosecuted, which proceedings have the
effect of preventing the forfeiture or sale of the property subject thereto, and
in each case for which adequate reserves in accordance with GAAP are being
maintained;
(iv) Liens arising in the ordinary course of business in connection with
worker's compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA);
(v) Attachments, appeal bonds (and cash collateral securing such bonds),
judgments and other similar Liens, for sums not exceeding One Hundred Thousand
Dollars ($100,000) in the aggregate for the Company and its Subsidiaries,
arising in connection with court proceedings, provided that the execution or
other enforcement of such Liens is effectively stayed;
(vi) Easements, rights of way, restrictions, minor defects or irregularities
in title and other similar Liens arising in the ordinary course of business and
not materially detracting from the value of the property subject thereto and not
interfering in any material respect with the ordinary conduct of the business of
the Company or any of its Subsidiaries;
(vii) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies and burdening only deposit accounts or other funds maintained with a
creditor depository institution, provided that no such deposit account is a
dedicated cash collateral account or is subject to restrictions against access
by the depositor in excess of those set forth by regulations promulgated by the
Board of Governors of the U.S. Federal Reserve System and that no such deposit
account is intended by the Company or any of its Subsidiaries to provide
collateral to the depository institution.
\"Person\" means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization, a
Governmental Entity or any other legal entity.
\"Public Disclosure\" or \"Publicly Disclose\" means the Company's public
dissemination of information through the filing via the Electronic Data
Gathering, Analysis, and Retrieval system of the SEC of a Periodic Report or
Current Report disclosing such information pursuant to the requirements of the
1934 Act.
\"Related Party\" means a Person's or any of its subsidiary's officers,
directors, persons who were officers or directors at any time during the
previous two years, stockholders (other than any holder of less than 5% of the
outstanding shares of such Person), or Affiliates of such Person or any of its
subsidiaries, or any individual related by blood, marriage or adoption to any
such individual or any entity in which any such entity or individual owns a
beneficial interest.
\"Securities Laws\" means the securities laws (including \"Blue Sky\" laws),
legislation and regulations of, and the instruments, policies, rules, orders,
codes, notices and interpretation notes of, the securities regulatory
authorities (including the SEC) of the United States and any applicable states
and other jurisdictions.
\"Security Documents\" means the Security Agreement, the Guarantees and any
other agreements, documents and instruments executed concurrently herewith or at
any time hereafter pursuant to which the Company, its Subsidiaries, or any other
Person either (i) guarantees payment or performance of all or any portion of the
obligations hereunder or under any other instruments delivered in connection
with the transactions contemplated hereby and by the other Transaction
Documents, and/or (ii) provides, as security for all or any portion of such
obligations, a Lien on any of its assets in favor of a Buyer, as any or all of
the same may be amended, supplemented, restated or otherwise modified from time
to time.
\"Subsidiary\" means IT&E International, a California corporation and Averion
Inc., a Delaware corporation.
\"Transaction Documents\" means this Agreement, the Registration Rights
Agreement, the Notes, the Security Agreement, the Guaranty, the Account Control
Agreements, the Pledge Agreement and each of the other agreements or instruments
to which the Company or any of its Subsidiaries is a party or by which it is
bound and which is entered into by the parties hereto or thereto in connection
with the transactions contemplated hereby and thereby, or which is otherwise
delivered by the Buyers, the Company or any of its Subsidiaries in connection
with the transactions contemplated hereby and thereby.