EXHIBIT 4.2(i)
COMMON STOCK AND WARRANTS PURCHASE AGREEMENT
Between
RAZORFISH, INC.
and
the Investors Signatory Hereto
COMMON STOCK AND WARRANTS PURCHASE AGREEMENT dated as of April 25, 2002
(the "Agreement"), between the Investors signatory hereto (each an "Investor"
and together the "Investors"), and RAZORFISH, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Company").
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall issue and sell to the Investors,
and the Investors shall purchase in the aggregate, up to (i) 20,000,000 shares
of Common Stock (as defined below) and (ii) Warrants (as defined below) to
purchase up to 3,000,000 shares of the Common Stock (as defined below) with an
exercise price per share equal to the reported last trade on the Nasdaq Stock
Market on April 17, 2002.
WHEREAS, each Investor is a qualified institutional buyer (as such term
is defined in Rule 144A of the Securities Act.
WHEREAS, such investments will be made in reliance upon the provisions
of Section 4(2) ("Section 4(2)") and/or 4(6) of the United States Securities Act
of 1933, as amended (the "Securities Act") and/or Regulation D ("Regulation D")
and the other rules and regulations promulgated under the Securities Act, and/or
upon such other exemption from the registration requirements of the Securities
Act as may be available with respect to any or all of the investments in
securities to be made hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
Section 1.1. "Capital Shares" shall mean the Common Stock and any shares of any
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other class of capital stock whether now or hereafter authorized, having the
right to participate in the distribution of earnings and assets of the Company.
Section 1.2. "Capital Shares Equivalents" shall mean any securities, rights, or
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obligations that are convertible into or exchangeable for or give any right to
subscribe for any Capital Shares of
the Company, or any Warrants, options or other rights to subscribe for or
purchase Capital Shares or any such convertible or exchangeable securities.
Section 1.3. "Closing" shall mean the closing of the purchase and sale of the
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Common Stock and Warrants pursuant to Section 2.1.
Section 1.4. "Closing Date" shall mean the date on which all conditions to the
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Closing have been satisfied (as defined in Section 2.1 (b) hereto) and the
Closing shall have occurred.
Section 1.5. "Common Stock" shall mean the Company's Class A common stock, $0.01
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par value per share.
Section 1.6. "Damages" shall mean any loss, claim, damage, judgment, penalty,
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deficiency, liability, costs and expenses (including, without limitation,
reasonable attorney's fees and disbursements and reasonable costs and expenses
of expert witnesses and investigation; but excluding indirect or consequential
damages).
Section 1.7. "Effective Date" shall mean the date on which the SEC first
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declares effective a Registration Statement registering the resale of the
Registrable Securities as set forth in the Registration Rights Agreement.
Section 1.8. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations promulgated thereunder.
Section 1.9. "Knowledge" of the Company, when modifying a representation or
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warranty, means the executive officers of the Company have no actual knowledge
that such representation or warranty is not true and correct to the extent
provided therein and that such executive officers have such knowledge as they
would reasonably be expected to have in the conduct of their respective duties.
Section 1.10. "Legend" shall mean the legend set forth in Section 8.1.
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Section 1.11. "Material Adverse Effect" shall mean any effect on the business,
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operations, properties, or financial condition of the Company that is or could
reasonably be expected to have a material and adverse to the Company and its
subsidiaries and affiliates, taken as a whole, and/or any condition,
circumstance, or situation that would prohibit or otherwise interfere with the
ability of the Company to enter into and perform any of its obligations under
this Agreement, the Registration Rights Agreement, or the Warrants in any
material respect; provided, however, that it shall not be deemed to be a
Material Adverse Effect if the Company receives notification from, or is
subsequently delisted from, the Nasdaq National Market, or any other matter
disclosed in the SEC Documents.
Section 1.12. "Outstanding" when used with reference to shares of Common Stock
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or Capital Shares, shall mean, at any date as of which the number of such shares
is to be determined, all issued and outstanding shares, and shall include all
such shares issuable in respect of outstanding scrip or any certificates
representing fractional interests in such shares; provided, however, that
"Outstanding" shall not mean any such shares then directly or indirectly owned
or held by or for the account of the Company.
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Section 1.13 "Permitted Liens" means the following liens, encumbrances or
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defects (collectively, "Liens"): (a) Liens for Taxes, assessments or other
governmental charges or levies not yet due or that are being contested in good
faith by appropriate proceedings; (b) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen, repairmen and other Liens
imposed by law for amounts not yet due; (c) Liens incurred or deposits , made in
the ordinary course of business in connection with worker's compensation,
unemployment insurance or other types of social security; (d) Liens which do not
materially detract from the value of the property subject thereto; and (e) Liens
incurred in the ordinary course of business and on a basis consistent with past
practice securing liabilities which are not individually or in the aggregate
material.
Section 1.14. "Person" shall mean an individual, a corporation, a partnership, a
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limited liability company, an association, a trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Section 1.15. "Principal Market" shall mean the American Stock Exchange, the New
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York Stock Exchange, the NASDAQ National Market, or the NASDAQ Small-Cap Market,
whichever is at the time the principal trading exchange or market for the Common
Stock, based upon share volume.
Section 1.16. "Purchase Price" shall mean thirty-two cents ($0.32) per unit
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consisting of one share of Common Stock and a Warrant to purchase 0.15 shares of
Common Stock.
Section 1.17. "Registrable Securities" shall mean the Shares and the Warrant
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Shares and all other securities received in exchange for or as a distribution
with respect to the foregoing until (i) the Registration Statement has been
declared effective by the SEC, and all Shares and Warrant Shares have been
disposed of pursuant to the Registration Statement, (ii) all Shares and Warrant
Shares have been sold undercircumstances under which all of the applicable
conditions of Rule 144 (or any similar provision then in force) under the
Securities Act ("Rule 144") are met, (iii) all Shares and Warrant Shares have
been otherwise transferred to holders who may trade such shares without
restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing a
restrictive legend or (iv) such time as, in the opinion of counsel to the
Company, all Shares and Warrant Shares may be sold at any time, without volume
or manner of sale limitations pursuant to Rule 144(k) (or any similar provision
then in effect) under the Securities Act.
Section 1.18. "Registration Rights Agreement" shall mean the agreement regarding
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the filing of the Registration Statement for the resale of the Registrable
Securities, entered into between the Company and the Investors as of the Closing
Date in the form annexed hereto as Exhibit A.
Section 1.19. "Registration Statement" shall mean a registration statement on
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Form S-3 (if use of such form is then available to the Company pursuant to the
rules of the SEC and, if not, on such other form promulgated by the SEC for
which the Company then qualifies and which counsel for the Company shall deem
appropriate, and which form shall be available for the resale by the Investors
of the Registrable Securities to be registered thereunder in accordance with the
provisions of this Agreement, the Registration Rights Agreement and in
accordance with the
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intended method of distribution of such securities), for the registration of the
resale by the Investors of the Registrable Securities under the Securities Act.
Section 1.20. "Regulation D" shall have the meaning set forth in the recitals of
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this Agreement.
Section 1.21. "SEC" shall mean the Securities and Exchange Commission.
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Section 1.22. "Section 4(2)" and "Section 4(6)" shall have the meanings set
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forth in the recitals of this Agreement.
Section 1.23. "Securities Act" shall have the meaning set forth in the recitals
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of this Agreement.
Section 1.24. "SEC Documents" shall mean the Company's Annual Report on Form
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10-K for the fiscal year ended December 31, 2001 and each periodic and current
report, proxy statement or registration statement filed by the Company with the
SEC pursuant to the Exchange Act or the Securities Act since the filing of such
Annual Report through the Closing, including any amendments thereto.
Section 1.25. "Shares" shall mean the shares of Common Stock being purchased
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pursuant to this Agreement.
Section 1.26 "Tax" or "Taxes" means any and all taxes of any kind whatsoever
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together with any interest and any penalties or additions to tax imposed by any
tax authority with respect thereto.
Section 1.26. "Trading Day" shall mean any day during which the Principal Market
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shall be open for business.
Section 1.27. "Warrants" shall mean the Warrants substantially in the form of
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Exhibit B to be issued to the Investors hereunder.
Section 1.28. "Warrant Shares" shall mean all shares of Common Stock or other
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securities issued or issuable pursuant to exercise of the Warrants.
ARTICLE II
Purchase and Sale of Common Stock and Warrants
Section 2.1. Investment.
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(a) Upon the terms and subject to the conditions set forth herein, the
Company agrees to sell, and the Investors, severally and not jointly, agree to
purchase Shares together with the Warrants, on the basis of one share of Common
Stock plus a Warrant to purchase 0.15 Warrant Shares (for each Investor, rounded
down to the nearest whole number of Shares) at the Purchase Price on the Closing
Date as follows:
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(i) Upon execution and delivery of this Agreement and the
Registration Rights Agreement by each Investor and the
Company and satisfaction of the conditions to Closing to be
met by the Company, the Investors shall deliver to the
Company immediately available funds in their proportionate
amount of the Purchase Price, as set forth on the signature
pages hereto, by wire transfer to the Company account set
forth on Appendix A hereto.
(ii) Upon receipt of each wire transfer and this Agreement and the
Registration Rights Agreement duly executed by an Investor,
the Company shall deliver to the applicable Investor at the
address indicated on the signature pages hereto certificates
representing such number of Shares and Warrants as indicated
on such Investor's signature page hereto.
(b) The Closing is subject to the satisfaction or waiver by the party
to be benefited thereby of the following conditions:
(i) acceptance and execution by the Company and by each Investor,
of this Agreement and the Registration Rights
Agreement;
(ii) payment by each Investor of immediately available funds in
the amount of the Purchase Price of the Shares and the
Warrants;
(iii) all representations and warranties of the Investors
contained herein shall remain true and correct in all
material respects as of the Closing Date (as a condition to
the Company's obligations);
(iv) all representations and warranties of the Company
contained herein shall be true and correct in all material
respects on the date hereof and remain true and correct in
all material respects as of the Closing Date, except that to
the extent any representation or warranty already contains a
qualification as to materiality such representation or
warranty shall be true and correct, and except that to the
extent that any such representation or warranty expressly
relates to another date (in which case, shall be true and
correct as of such other specified date) (as a condition to
the Investors' obligations);
(v) the Company shall have obtained all permits and
qualifications required to be obtained prior to the Closing
by any state for the offer and sale of the Shares and
Warrants, or shall have the availability of exemptions
therefrom;
(vi) the sale and issuance of the Shares and the Warrants
hereunder, and the proposed issuance by the Company to the
Investors of the Warrant Shares underlying the Warrants upon
the exercise thereof shall be legally permitted by all laws
and regulations to which the Investors and the Company are
subject and there shall be no ruling, judgment or writ of any
court prohibiting the transactions contemplated by this
Agreement;
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(vii) delivery of the original fully executed certificates
representing the Shares and Warrants, and Registration
Rights Agreement to the Investors;
(viii) delivery to the Investors of an opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel to the Company, in the form of
Exhibit C hereto.
Section 2.2. Limitation on Shares. The Company represents to each Investor that
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in no event shall the aggregate of the number of Shares and Warrant Shares sold
pursuant to this Agreement and any substantially identical agreement which may
be aggregated by the Principal Market for purposes of any listing rule exceed
19.99% of the outstanding shares of Common Stock of the Company.
ARTICLE III
Representations and Warranties of Investors
Each Investor, severally and not jointly, represents and warrants to and agrees
with the Company that:
Section 3.1. Intent. The Investor is entering into this Agreement for its own
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account and not with a view to or for sale in connection with any distribution
of the Shares, the Warrants or any Warrant Shares. The Investor has no present
plan, intention or arrangement (whether or not legally binding) to sell the
Shares, the Warrants, or any Warrant Shares to or through any person or entity.
The Investor understands that the Shares, the Warrants and the Warrant Shares
have not been registered under the Securities Act or any state securities laws
in reliance on exemptions therefrom, which exemptions may depend upon, among
other things, the bona fide nature of the Investor's investment intent as
expressed herein. Investor agrees that it will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to
purchase, transfer or otherwise acquire or take a pledge of) any of the Shares,
the Warrants or the Warrant Shares except in compliance with the Securities Act,
applicable state securities laws and the respective rules and regulations
thereunder. Notwithstanding the foregoing, the Investor is not agreeing to hold
the Shares, the Warrants or the Warrant Shares for any particular period of
time.
Section 3.2. Qualified Institutional Investor. The Investor is a qualified
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institutional buyer as defined in Rule 144A of the Securities Act, and Investor
has such experience in business and financial matters that it has the capacity
to protect its own interests in connection with this transaction and is capable
of evaluating the merits and risks of an investment in the Shares and the
Warrants. The Investor acknowledges that an investment in the Shares, the
Warrants and the Warrant Shares is speculative and involves a high degree of
risk.
Section 3.3. Authority. This Agreement and the Registration Rights Agreement
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have been duly and validly executed and delivered by the Investor and is a valid
and binding agreement of the Investor enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application. The Investor
has the requisite power and authority to enter into and perform its obligations
under this Agreement and
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the Registration Rights Agreement in accordance with the terms of this Agreement
and the Registration Rights Agreement, and the execution, issuance and delivery
of this Agreement and the Registration Rights Agreement and the consummation by
it of the transactions contemplated hereby have been duly authorized by all
necessary entity action and no further consent or authorization of the
Investor's actions by any person or persons is required.
Section 3.4. Not an Affiliate. The Investor is not an officer, director or
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"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company.
Section 3.5. Absence of Conflicts. The execution and delivery of this Agreement
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and the Registration Rights Agreement, and the consummation of the transactions
contemplated hereby and thereby, and compliance with the requirements hereof and
thereof by the Investor, will not violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on Investor or (a) violate
any provision of any indenture, instrument or agreement to which Investor is a
party or is subject, or by which Investor or any of its assets is bound; (b)
conflict with or constitute a material default thereunder; (c) result in the
creation or imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty owed by
Investor to any third party; or (d) require the approval of any third-party
(which has not been obtained) pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which Investor is subject or to
which any of its assets, operations or management may be subject.
Section 3.6. Disclosure; Access to Information. The Investor has received all
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documents, records, books and other publicly available information pertaining to
Investor's investment in the Company that have been requested by the Investor;
provided, however, the Investor acknowledges that the Company has not delivered
to them any registration statement of the Company on file with the SEC. The
Company is subject to the periodic reporting requirements of the Exchange Act,
and the Investor has reviewed copies of all SEC Documents deemed relevant by
Investor. The Investor further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the terms and
conditions of the offering of the Shares and Warrants and the business,
properties, prospects and financial condition of the Company.
Section 3.7. Manner of Sale. At no time was Investor presented with or solicited
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by or through any leaflet, public promotional meeting, or television
advertisement or, to the Investor's knowledge, with any other form of
communication which appeared to Investor to constitute general solicitation or
advertising.
ARTICLE IV
Representations and Warranties of the Company
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The Company represents and warrants to the Investors that, except as set forth
on the Disclosure Schedule prepared by the Company and attached hereto and
except as otherwise set forth in the SEC Documents:
Section 4.1. Organization of the Company. The Company is a corporation duly
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incorporated and existing in good standing under the laws of the State of
Delaware and has all requisite corporate authority to own its properties and to
carry on its business as now being conducted. Other than the subsidiaries listed
on Exhibit 21 to the Company's most recent Form 10-K or on Schedule 4.1, the
Company does not have any subsidiaries and does not own more than fifty percent
(50%) of or control any other business entity. The Company is duly qualified and
is in good standing as a foreign corporation to do business in every
jurisdiction in which the nature of the business conducted or property owned by
it makes such qualification necessary, other than those in which the failure so
to qualify would not have a Material Adverse Effect.
Section 4.2. Authority. (i) The Company has the requisite corporate power and
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corporate authority to enter into and perform its obligations under this
Agreement, the Registration Rights Agreement and the Warrants and to issue the
Shares, the Warrants and, upon exercise of the Warrants, the Warrant Shares in
accordance with the terms of this Agreement and the Warrants, (ii) the
execution, issuance and delivery of this Agreement, the Registration Rights
Agreement, the Common Stock certificates representing the Shares and the
Warrants by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required, and (iii) this Agreement, the Registration Rights
Agreement, the Common Stock certificates representing the Shares and the
Warrants have been duly executed and delivered by the Company and at the Closing
shall constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general application. The
Company has duly and validly authorized and reserved for issuance shares of
Common Stock sufficient in number for the exercise of the Warrants. The Shares
are, and the Warrant Shares issued upon exercise of the Warrants will be, duly
authorized, validly issued, fully paid and non-assessable and free from all
taxes, liens and charges in respect of the issue thereof.
Section 4.3. Capitalization. The authorized capital stock of the Company
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immediately prior to the Closing consists of: (a) 200,000,000 shares of Common
Stock, of which 125,317,672 shares are outstanding plus 50 shares of Class B
common stock; (b) 10,000,000 shares of Preferred Stock, par value $0.01 per
share, of which no shares are outstanding; and (c) options and warrants to
purchase an aggregate of 21,026,960 shares of Common Stock. Except as set forth
above, and except for the Shares, the Warrants and the Warrant Shares, there are
no outstanding Capital Shares Equivalents nor any agreements or understandings
pursuant to which any Capital Shares Equivalents may become outstanding. Except
as set forth in Schedule 4.3, the Company is not a party to any agreement
granting registration or anti-dilution rights to any person (other than the
Investors herein) with respect to any of its equity or debt securities. All of
the outstanding shares of Common Stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.
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Section 4.4. Common Stock; S-3 Eligibility. The Company has registered its
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Common Stock pursuant to Section 12(b) or (g) of the Exchange Act and is in
compliance in all material respects with all reporting requirements of the
Exchange Act, and the Company is in compliance in all material respects with all
requirements for the continued listing or quotation of its Common Stock, and
such Common Stock is currently listed or quoted on, the Principal Market. As of
the date hereof, the Principal Market is the Nasdaq National Market, and except
for the Company's failure to maintain a minimum bid price of $3.00 for the
requisite periods and minimum shareholder equity requirements, the Company has
not received any notice regarding, and to its knowledge there is no threat of,
the termination or discontinuance of the eligibility of the Common Stock for
such listing. The Company is eligible to register the Shares and the Warrant
Shares for resale by the Investors on Form S-3.
Section 4.5. SEC Documents. The Company has not provided to the Investors any
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information that, according to applicable law, rule or regulation, should have
been disclosed publicly prior to the date hereof by the Company, but which has
not been so disclosed. As of their respective filing dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act or
the Securities Act, as applicable, and rules and regulations of the SEC
promulgated thereunder and the SEC Documents did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents complied in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC or other applicable rules and regulations with respect
thereto at the time of such inclusion. Such financial statements have been
prepared in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis 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 exclude footnotes
or may be condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited interim statements, to normal year-end audit adjustments).
Neither the Company nor any of its subsidiaries has any material indebtedness,
obligations or liabilities of any kind (whether accrued, absolute, contingent or
otherwise, and whether due or to become due) that would have been required to be
reflected in, reserved against or otherwise described in the financial
statements or in the notes thereto in accordance with GAAP, which was not fully
reflected in, reserved against or otherwise described in the financial
statements or the notes thereto included in the SEC Documents or was not
incurred in the ordinary course of business consistent with the Company's past
practices since the last date of such financial statements. The Company's
auditors are "independent" within the meaning and requirements of the Exchange
Act.
Section 4.6. Exemption from Registration; Valid Issuances. Subject to the
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accuracy of the Investors' representations in Article III, the sale of the
Shares and the Warrants will not require registration under the Securities Act
and/or any applicable state securities law. When issued and paid for in
accordance with the Warrants, the Warrant Shares will be duly and validly
issued, fully paid, and non-assessable. Neither the sale of the Shares, the
Warrants or the Warrant Shares pursuant to, nor the Company's performance of its
obligations under, this Agreement, the Registration Rights Agreement or the
Warrants will (i) result in the creation or imposition by the
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Company of any liens, charges, claims or other encumbrances upon the Shares, the
Warrants or the Warrant Shares or, except as contemplated herein, any of the
assets of the Company, or (ii) entitle the holders of outstanding Capital Shares
to preemptive or other rights to subscribe for or acquire the Capital Shares or
other securities of the Company. Other than in reliance upon the Investors'
representations in Article III, the Company has taken no action, and will take
no action, which could cause the Securities sold pursuant to this Agreement to
be integrated with any other securities issuance so as to cause the
unavailability of the exemption from registration being relied on by the Company
and the Investors hereunder.
Section 4.7. No General Solicitation or Advertising in Regard to this
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Transaction. Neither the Company nor any of its affiliates nor, to the knowledge
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of the Company, any person acting on its or their behalf (i) has conducted or
will conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D) or general advertising with respect to the sale of the Shares or
the Warrants, or (ii) made any offers or sales of any security or solicited any
offers to buy any security under any circumstances that would require
registration of the Shares, the Warrants or the Warrant Shares under the
Securities Act.
Section 4.8. No Conflicts. The execution, delivery and performance of this
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Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby, including without limitation the issuance of the Shares,
the Warrants and the Warrant Shares, do not and will not (i) result in a
violation of the Company's Certificate of Incorporation or By-Laws or (ii)
conflict with, or constitute a material default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any material
agreement, indenture or instrument, or any "lock-up" or similar provision of any
underwriting or similar agreement to which the Company is a party, or (iii)
result in a violation of any federal, state or local law, rule, regulation,
order, judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or by which any material property or
asset of the Company is bound or affected, nor is the Company otherwise in
violation of, conflict with or default under any of the foregoing (except in
each case for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not have, individually or in the
aggregate, a Material Adverse Effect). The business of the Company is not being
conducted in violation of any law, ordinance or regulation of any governmental
entity, except for possible violations that either singly or in the aggregate
would not have a Material Adverse Effect. The Company is not required under any
Federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Shares or the Warrants in
accordance with the terms hereof (other than any SEC, Principal Market or state
securities filings that may be required to be made by the Company subsequent to
Closing and any Registration Statement that may be filed pursuant hereto);
provided that, for purposes of the representation made in this sentence, the
Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Investors herein.
Section 4.9. No Material Adverse Change. Since December 31, 2001, no event or
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development has occurred or exists with respect to the Company that resulted in
a Material Adverse Effect, except as disclosed in the SEC Documents.
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Section 4.10. No Undisclosed Events or Circumstances. Since December 31, 2001,
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no event or circumstance has occurred or exists with respect to the Company or
its businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company, or which would be required
to be disclosed in a registration statement filed pursuant to the Securities Act
in connection with a public offering of the Company's securities, but which has
not been so publicly announced or disclosed in the SEC Documents.
Section 4.11. Litigation and Other Proceedings. Except as disclosed in the SEC
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Documents, there are no lawsuits or proceedings pending or, to the knowledge of
the Company, threatened, against the Company or any subsidiary, nor has the
Company received any written or oral notice of any such action, suit, proceeding
or investigation, which could reasonably be expected to have a Material Adverse
Effect. Except as set forth in the SEC Documents, no judgment, order, writ,
injunction or decree or award has been issued by or, to the knowledge of the
Company, requested of any court, arbitrator or governmental agency which could
result in a Material Adverse Effect.
Section 4.12. Property. Neither the Company nor any of its subsidiaries owns any
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real property. Each of the Company and its subsidiaries has good and marketable
title to all personal property owned by it, free and clear of all liens,
encumbrances and defects except for Permitted Liens.
Section 4.13. Intellectual Property. Each of the Company and its subsidiaries
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owns or possesses adequate and enforceable rights to use all material patents,
patent applications, trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as now being conducted in all material respects. To the Company's
knowledge, except as disclosed in the SEC Documents neither the Company nor any
of its subsidiaries is infringing upon or in conflict with any right of any
other person with respect to any Intangibles. Except as disclosed in the SEC
Documents, no adverse claims have been asserted by any person to the ownership
or use of any Intangibles and the Company has no knowledge of any basis for such
claim.
Section 4.14. Internal Controls and Procedures. The Company maintains books and
--------------------------------
records and internal accounting controls which provide reasonable assurance that
(i) all transactions to which the Company or any subsidiary is a party or by
which its properties are bound are executed with management's authorization;
(ii) the recorded accounting of the Company's consolidated assets is compared
with existing assets at regular intervals; (iii) access to the Company's
consolidated assets is permitted only in accordance with management's
authorization; and (iv) all transactions to which the Company or any subsidiary
is a party or by which its properties are bound are recorded as necessary to
permit preparation of the financial statements of the Company in accordance with
U.S. GAAP.
Section 4.15. Payments and Contributions. Neither the Company, any subsidiary,
--------------------------
nor any of its directors, officers or, to its knowledge, other employees has (i)
used any Company funds for any unlawful contribution, endorsement, gift,
entertainment or other unlawful expense relating to
11
political activity; (ii) made any direct or indirect unlawful payment of Company
funds to any foreign or domestic government official or employee; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of
1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other similar payment to any person with respect to Company matters.
Section 4.16. No Misrepresentation. The representations and warranties of the
--------------------
Company contained in this Agreement, any schedule, annex or exhibit hereto and
any agreement, instrument or certificate furnished by the Company to the
Investors pursuant to this Agreement, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
Section 4.17. No Integrated Offering. Neither the Company, nor any of its
----------------------
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Shares and the Warrants to be integrated with prior offerings by the Company for
purposes of the Securities Act or any applicable shareholder approval
provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of the
Company are listed or designated, nor will the Company take any action or steps
that would cause the offering of the Shares and Warrants to be integrated with
other offerings.
ARTICLE V
Covenants of the Company
Section 5.1. Registration Rights. The Company shall cause the Registration
-------------------
Rights Agreement to remain in full force and effect as provided therein and the
Company shall comply in all material respects with the terms thereof.
Section 5.2. Reservation of Common Stock. As of the date hereof, the Company has
---------------------------
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, a sufficient number of shares of Common Stock
for the purpose of enabling the Company to issue the Warrant Shares pursuant to
any exercise of the Warrants.
Section 5.3. Listing of Common Stock. The Company hereby agrees to use its
-----------------------
commercially reasonable efforts to maintain the listing of the Common Stock on a
Principal Market, and as soon as reasonably practicable following the Closing
(but not later than the earlier of the Effective Date and the first anniversary
of the Closing Date) to list the Shares and the Warrant Shares on each market
where the Common Stock is traded. The Company further agrees, if the Company
applies to have the Common Stock traded on any other Principal Market, it will
include in such application the Shares and the Warrant Shares, and will take
such other action as is necessary or desirable in the opinion of the Investors
to cause the Shares and Warrant Shares to be listed on such other Principal
Market as promptly as possible. The Company will comply
12
in all respects with the Company's reporting, filing and other obligations under
the bylaws or rules of the Principal Market and shall provide Investors with
copies of any correspondence to or from such Principal Market which questions or
threatens delisting of the Common Stock, within three (3) Trading Days of the
Company's receipt thereof, until the Investors have disposed of all of their
Registrable Securities.
Section 5.4. Exchange Act Registration. The Company will cause its Common Stock
-------------------------
to continue to be registered under Section 12(b) or (g) of the Exchange Act,
will use its commercially reasonable efforts to comply in all material respects
with its reporting and filing obligations under the Exchange Act, and will not
take any action or file any document (whether or not permitted by the Exchange
Act or the rules thereunder) to terminate or suspend such registration or to
terminate or suspend its reporting and filing obligations under the Exchange Act
until the Investors have disposed of all of their Registrable Securities.
Section 5.5. Legends. The certificates evidencing the Registrable Securities
-------
shall be free of legends, except as set forth in Article VIII and except as may
be required by state securities laws.
Section 5.6. Corporate Existence; Conflicting Agreements. For so long as any
-------------------
Investor holds any Registrable Securities, the Company will take all steps
necessary to preserve and continue the corporate existence of the Company; and
the Company shall not enter into any agreement, the terms of which agreement
would restrict or impair the right or ability of the Company to perform any of
its obligations under this Agreement or any of the other agreements attached as
exhibits hereto. Section 5.7. Securities Filings. The Company shall make any
necessary SEC and "blue sky" filings required to be made by the Company in
connection with the sale of the Shares, the Warrants and the Warrant Shares to
the Investors as required by all applicable laws, and shall provide a copy
thereof to the Investors promptly after such filing.
ARTICLE VI
Survival; Indemnification
Section 6.1. Survival. The representations, warranties and covenants made by
--------
each of the Company and each Investor in this Agreement, the exhibits hereto and
in each instrument, agreement and certificate entered into and delivered by them
pursuant to this Agreement, shall survive the Closing and the consummation of
the transactions contemplated hereby. In the event of a breach or violation of
any of such representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach or violation available to it under the provisions
of this Agreement, irrespective of any investigation made by or on behalf of
such party on or prior to the Closing Date.
Section 6.2. Indemnity. (a) The Company hereby agrees to indemnify and hold
---------
harmless the Investors, their respective Affiliates (as defined in Rule 405
under the Securities Act) and their respective officers, directors, partners and
members (collectively, the "Investor Indemnitees"),
13
from and against any and all Damages, and agrees to reimburse the Investor
Indemnitees for all reasonable out-of-pocket expenses (including the reasonable
fees and expenses of legal counsel), in each case promptly as incurred by the
Investor Indemnitees and to the extent arising out of or in connection with:
(i) any material misrepresentation, omission of any material
fact or breach of any of the Company's representations or warranties
contained in this Agreement, the annexes, schedules or exhibits hereto
or any instrument, agreement or certificate entered into or delivered
by the Company pursuant to this Agreement; or
(ii) any failure by the Company to perform in any material
respect any of its covenants, agreements, undertakings or obligations
set forth in this Agreement, the annexes, schedules or exhibits hereto
or any instrument, agreement or certificate entered into or delivered
by the Company pursuant to this Agreement; or
(iii) any action instituted against the Investors, their
respective Affiliates, or any of them, by any stockholder of the
Company who is not an Affiliate of an Investor, with respect to any of
the transactions contemplated by this Agreement, except for any claim
arising out of a breach by any Investor of this Agreement; or
(iv) the enforcement of this Section 6.2.
(b) Each Investor, severally and not jointly, hereby agrees to
indemnify and hold harmless the Company, its Affiliates and their respective
officers, directors, partners and members (collectively, the "Company
Indemnitees"), from and against any and all Damages, and agrees to reimburse the
Company Indemnitees for reasonable all out-of-pocket expenses (including the
reasonable fees and expenses of legal counsel), in each case promptly as
incurred by the Company Indemnitees and to the extent arising out of or in
connection with any material misrepresentation, omission of a material fact, or
breach of any of the Investor's representations or warranties contained in this
Agreement, the annexes, schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by the Investor pursuant to
this Agreement. Notwithstanding anything to the contrary herein, the Investor
shall be liable under this Section 6.2(b) for only that amount as does not
exceed the net proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to the Registration Statement (including any amount that
could be received by such Investor for Registrable Securities not yet sold).
Section 6.3. Notice. Promptly after receipt by either party hereto seeking
------
indemnification pursuant to Section 6.2 (an "Indemnified Party") of written
notice of any investigation, claim, proceeding or other action in respect of
which indemnification is being sought (each, a "Claim"), the Indemnified Party
promptly shall notify the party from whom indemnification pursuant to Section
6.2 is being sought (the "Indemnifying Party") of the commencement thereof; but
the omission so to notify the Indemnifying Party shall not relieve it from any
liability that it otherwise may have to the Indemnified Party, except to the
extent that the Indemnifying Party is actually prejudiced by such omission or
delay. In connection with any Claim as to which both the Indemnifying Party and
the Indemnified Party are parties, the Indemnifying Party shall be entitled to
assume the defense thereof. Notwithstanding the assumption of the defense of any
14
Claim by the Indemnifying Party, the Indemnified Party shall have the right to
employ separate legal counsel and to participate in the defense of such Claim,
and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs
and expenses of one such separate legal counsel to the Indemnified Party if (and
only if): (x) the Indemnifying Party shall have agreed to pay such fees,
out-of-pocket costs and expenses, (y) the Indemnified Party reasonably shall
have concluded that representation of the Indemnified Party and the Indemnifying
Party by the same legal counsel would not be appropriate due to actual or, as
reasonably determined by legal counsel to the Indemnified Party, potentially
differing interests between such parties in the conduct of the defense of such
Claim, or if there may be legal defenses available to the Indemnified Party that
are in addition to or disparate from those available to the Indemnifying Party,
or (z) the Indemnifying Party shall have failed to employ competent legal
counsel within a reasonable period of time after notice of the commencement of
such Claim. If the Indemnified Party employs separate legal counsel in
circumstances other than as described in clauses (x), (y) or (z) above, the
fees, costs and expenses of such legal counsel shall be borne exclusively by the
Indemnified Party. Except as provided above, the Indemnifying Party shall not,
in connection with any Claim in the same jurisdiction, be liable for the fees
and expenses of more than one firm of legal counsel for the Indemnified Party
(together with appropriate local counsel). The Indemnifying Party shall not,
without the prior written consent of the Indemnified Party (which consent shall
not unreasonably be withheld), settle or compromise any Claim or consent to the
entry of any judgment that does not include an unconditional release of the
Indemnified Party from all liabilities with respect to such Claim or judgment.
All fees and expenses of the Indemnified Party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and, except as otherwise provided above, all reasonable attorneys' fees
and expenses) shall be paid to the Indemnified Party, as incurred, within ten
(10) Trading Days of written notice thereof to the Indemnifying Party
(regardless of whether it is ultimately determined that an Indemnified Party is
not entitled to indemnification hereunder; provided, that the Indemnifying Party
may require such Indemnified Party to undertake to reimburse all such fees and
expenses, with interest at market rates, to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder).
Section 6.4. Direct Claims. In the event one party hereunder should have a claim
-------------
for indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnifying Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration conducted in accordance with the
procedures and rules of the American Arbitration Association as set forth in
Article IX. Judgment upon any award rendered by any arbitrators may be entered
in any court having competent jurisdiction thereof.
ARTICLE VII
Non-Disclosure of Non-Public Information.
Section 7.1. Non-Disclosure of Non-Public Information.
----------------------------------------
15
(a) The Company shall not disclose material non-public information to
the Investors, advisors to or representatives of the Investors unless prior to
disclosure of such information the Company identifies such information as being
non-public information and provides the Investors, such advisors and
representatives with the opportunity to accept or refuse to accept such
non-public information for review. The Company may, as a condition to disclosing
any non-public information hereunder, require the Investors and their respective
advisors and representatives to enter into a confidentiality agreement in form
and content reasonably satisfactory to the Company and the Investors.
(b) Nothing herein shall require the Company to disclose material
non-public information to the Investors or their advisors or representatives;
provided, however, that notwithstanding anything herein to the contrary, the
Company will, as hereinabove provided, promptly notify the advisors and
representatives of the Investors and, if any, underwriters, of any event or the
existence of any circumstance (without any obligation to disclose the specific
event or circumstance) of which it becomes aware, constituting material
non-public information (whether or not requested of the Company specifically or
generally during the course of due diligence by such persons or entities),
which, if not disclosed in the prospectus included in the Registration Statement
would cause such prospectus to include a material misstatement or to omit a
material fact required to be stated therein in order to make the statements,
therein in light of the circumstances in which they were made, not misleading.
Nothing contained in this Section 7.1 shall be construed to mean that such
persons or entities other than the Investors (without the written consent of the
Investors prior to disclosure of such information as set forth in Section
7.1(a)) may not obtain non-public information in the course of conducting due
diligence in accordance with the terms of this Agreement and nothing herein
shall prevent any such persons or entities from notifying the Company of their
opinion that based on such due diligence by such persons or entities, that the
Registration Statement contains an untrue statement of a material fact or omits
a material fact required to be stated in the Registration Statement or necessary
to make the statements contained therein, in light of the circumstances in which
they were made, not misleading.
ARTICLE VIII
Legends; Transfer Agent Instructions
Section 8.1. Legends. Unless otherwise provided below, each certificate
-------
representing Registrable Securities will bear the following legend or equivalent
(the "Legend"), and such other legends as may be required under state securities
laws:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER
APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, OR OTHERWISE DISPOSED
OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
16
UNDER THE SECURITIES ACT OR PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM SUCH
REGISTRATION.
Section 8.2. No Other Legend or Stock Transfer Restrictions. No legend other
----------------------------------------------
than the ones specified in Section 8.1 has been or shall be placed on the share
certificates representing the Registrable Securities and no instructions or
"stop transfer orders," "stock transfer restrictions," or other restrictions
have been or shall be given to the Company's transfer agent with respect thereto
other than as expressly set forth in this Article VIII.
Section 8.3 Instructions to Transfer Agent. The Company agrees that it shall,
------------------------------
immediately prior to the Effective Date, deliver to its transfer agent an
opinion letter of its counsel, opining that at any time the Registration
Statement is effective, the transfer agent shall issue, in connection with the
issuance of the Shares and the Warrant Shares, certificates representing such
Shares and Warrant Shares without the restrictive legend above, provided such
Shares and Warrant Shares are to be sold pursuant to the prospectus contained in
the Registration Statement. Upon receipt of such opinion, the Company shall use
best efforts to cause the transfer agent to confirm, for the benefit of the
Investors, that no further opinion of counsel will be required at the time of
transfer in order to issue such shares without such restrictive legend.
Section 8.4 Investors' Compliance. Nothing in this Article shall affect in any
---------------------
way each Investor's obligations to comply with all applicable securities laws,
including prospectus delivery requirements, upon resale of the Common Stock.
ARTICLE IX
Choice of Law; Arbitration
Section 9.1. Governing Law/Arbitration. This Agreement shall be governed by and
-------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made in New York by persons domiciled in New York City and without
regard to its principles of conflicts of laws that would result in the
application of the laws of any other jurisdiction. Any dispute under this
Agreement shall be submitted to arbitration under the American Arbitration
Association (the "AAA") in New York City, New York, and shall be finally and
conclusively determined by the decision of a board of arbitration consisting of
three (3) members (hereinafter referred to as the "Board of Arbitration")
selected according to the rules governing the AAA. The Board of Arbitration
shall meet on consecutive business days in New York City, New York, and shall
reach and render a decision in writing (concurred in by a majority of the
members of the Board of Arbitration) with respect to the amount, if any, which
the losing party is required to pay to the other party in respect of a claim
filed. In connection with rendering its decisions, the Board of Arbitration
shall adopt and follow the laws of the State of New York unless the matter at
issue is the corporation law of the company's state of incorporation, in which
event the corporation law of such jurisdiction shall govern such issue. To the
extent practical, decisions of the Board of Arbitration shall be rendered no
more than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. Any decision made by the Board
of Arbitration (either prior to or
17
after the expiration of such thirty (30) calendar day period) shall be final,
binding and conclusive on the parties to the dispute, and entitled to be
enforced to the fullest extent permitted by law and entered in any court of
competent jurisdiction. The Board of Arbitration shall be authorized and is
hereby directed to enter a default judgment against any party failing to
participate in any proceeding hereunder within the time periods set forth in the
AAA rules. The non-prevailing party to any arbitration (as determined by the
Board of Arbitration) shall pay the expenses of the prevailing party, including
reasonable attorney's fees, in connection with such arbitration. Any party shall
be entitled to seek injunctive relief from a court in any case where such relief
is available, and the non-prevailing party to any such injunctive proceeding
shall pay the expenses of the prevailing party, including reasonable attorney's
fees, in connection with such proceeding.
ARTICLE X
Assignment
Section 10.1. Assignment. Neither this Agreement nor any rights of the Investors
----------
or the Company hereunder may be assigned by either party to any other person.
Notwithstanding the foregoing, (a) the provisions of this Agreement shall inure
to the benefit of, and be enforceable by, any permitted transferee of any of the
Shares or Warrants prior to the Effective Date purchased or acquired by any
Investor hereunder with respect to the Shares or Warrants held by such person,
and (b) upon the prior written consent of the Company, which consent shall not
unreasonably be withheld or delayed, each Investor's interest in this Agreement
may be assigned at any time, in whole or in part prior to the Effective Date, to
an Affiliate of the Investor or any other person or entity who purchases
substantially all of the Shares of such Investor, provided that in each case
such transferee shall agree to make the representations and warranties contained
in Article III and shall agree to be bound by the terms of this Agreement.
ARTICLE XI
Notices
Section 11.1. Notices. All notices, demands, requests, consents, approvals, and
-------
other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) hand delivered, (ii) deposited
in the mail, registered or certified, return receipt requested, postage prepaid,
(iii) delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by facsimile, addressed as set forth below or to such other address
as such party shall have specified most recently by written notice. Any notice
or other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (b) on the first business day
following the date of sending by reputable courier service, fully prepaid,
addressed to such address, or (c) upon actual receipt of such mailing, if
mailed. The addresses for such communications shall be:
18
If to the Company: Razorfish, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, CFO
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to (shall not constitute ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
notice): ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
if to the Investors: As set forth on the signature pages
hereto
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 11.1 by giving written notice of such changed
address or facsimile number to the other party hereto as provided in this
Section 11.1.
ARTICLE XII
Miscellaneous
Section 12.1. Counterparts/ Facsimile/ Amendments. This Agreement may be
-----------------------------------
executed in multiple counterparts, each of which may be executed by less than
all of the parties and shall be deemed to be an original instrument which shall
be enforceable against the parties actually executing such counterparts and all
of which together shall constitute one and the same instrument. Except as
otherwise stated herein, in lieu of the original documents, a facsimile
transmission or copy of the original documents shall be as effective and
enforceable as the original. This Agreement may be amended only by a writing
executed by all parties.
Section 12.2. Entire Agreement. This Agreement and the agreements attached as
----------------
Exhibits hereto, which include the Warrants and the Registration Rights
Agreement, set forth the entire agreement and understanding of the parties
relating to the subject matter hereof and supersede all prior and
contemporaneous agreements, negotiations and understandings between the parties,
both oral and written relating to the subject matter hereof. The terms and
conditions of all Exhibits to this Agreement are incorporated herein by this
reference and shall constitute part of this Agreement as if fully set forth
herein.
19
Section 12.3. Severability. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any party.
Section 12.4. Headings. The headings used in this Agreement are used for
--------
convenience only and are not to be considered in construing or interpreting this
Agreement.
Section 12.5. Number and Gender. There may be one or more Investor parties to
-----------------
this Agreement, which Investors may be natural persons or entities. All
references to plural Investors shall apply equally to a single Investor if there
is only one Investor, and all references to an Investor as "it" shall apply
equally to a natural person.
Section 12.6. Replacement of Certificates. Upon (i) receipt of evidence
---------------------------
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of a certificate representing the Shares or Warrants or any Warrant
Shares and (ii) in the case of any such loss, theft or destruction of such
certificate, upon delivery by the Investor of an indemnity agreement reasonably
satisfactory in form to the Company (which shall not include the posting of any
bond other than that required by the Company's transfer agent) or (iii) in the
case of any such mutilation, on surrender and cancellation of such certificate,
the Company at its expense will execute and deliver, in lieu thereof, a new
certificate of like tenor.
Section 12.7. Fees and Expenses. Each of the Company and the Investors agrees to
-----------------
pay its own expenses incident to the performance of its obligations hereunder.
Section 12.8. Brokerage. Each of the parties hereto represents that it has had
---------
no dealings in connection with this transaction with any finder or broker who
will demand payment of any fee or commission from the other party except for
Ladenburg ▇▇▇▇▇▇▇▇ & Co. Inc., whose fee shall be paid by the Company. The
Company on the one hand, and the Investors, severally, on the other hand, agree
to indemnify the other against and hold the other harmless from any and all
liabilities to any person claiming brokerage commissions or finder's fees on
account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby.
20
Section 12.9. Publicity. The Company agrees that it will issue a press release
---------
describing the transaction contemplated by this Agreement within one business
day of Closing, and shall file a Form 8-K with respect to the same within five
business days of Closing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
RAZORFISH, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: Chief Financial Officer
--------------------------------
[signature pages continued]
21
INVESTORS:
Gundyco -- In Trust For The K2
Arbitrage Fund
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Authorized Signatory
Number of Shares: 1,000,000
Number of Warrants: 150,000
Total Purchase Price: $320,000.00
Royal capital management inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tite: President and CEO
Number of Shares: 1,000,000
Number of Warrants: 150,000
Total Purchase Price: $320,000.00
22
APPENDIX A
Company Wire Instructions
-------------------------
Account Name: Razorfish, Inc.
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇ ▇▇▇▇▇
Bank Name: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Account No.: ▇▇▇-▇▇▇-▇▇▇
Routing No.: ▇▇▇-▇▇▇▇-▇▇
Bank Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
23
SCHEDULE 4.3 and SCHEDULE 4.8
1) Registration Rights Agreement made as of January 22, 2000, by
and among Razorfish, Inc. and Per Jauring, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Lars Lidefelt, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
2) Registration Rights Agreement dated as of December 1, 1999
between Razorfish, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇.
3) Registration Rights Agreement made as of November 30, 1999, by
and between Razorfish, Inc. and ▇▇▇ ▇▇▇▇.
4) Registration Rights Agreement between Razorfish and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, Dr. Hannspeter ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ and Southern Blue Beteiligungsgesellschaft GmBH
("Sellers"), dated August 18, 2000.
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