COMMON STOCK PURCHASE AGREEMENT Dated as of May 4, 2007 by and between FOLDERA, INC. and THE PURCHASERS LISTED ON EXHIBIT A
Exhibit
10.1
COMMON
STOCK PURCHASE
AGREEMENT
Dated
as of May 4, 2007
by
and between
and
THE
PURCHASERS LISTED ON EXHIBIT A
TABLE
OF
CONTENTS
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1
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ARTICLE
I PURCHASE
AND SALE OF COMMON STOCK
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1
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Section
1.1
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Purchase
and Sale of Common Stock.
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1
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Section
1.2
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Purchase
Price and Closings
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1
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ARTICLE
II REPRESENTATIONS
AND WARRANTIES
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2
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Section
2.1
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Representations
and Warranties of the Company
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2
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Section
2.2
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Representations
and Warranties of the Purchasers
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13
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ARTICLE
III COVENANTS
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16
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Section
3.1
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Securities
Compliance
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16
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Section
3.2
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Registration
and Listing
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16
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Section
3.3
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Inspection
Rights
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16
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Section
3.4
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Compliance
with Laws
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17
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Section
3.5
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Keeping
of Records and Books of Account
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17
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Section
3.6
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Reporting
Requirements
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17
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Section
3.7
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Other
Agreements
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17
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Section
3.8
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Use
of Proceeds
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17
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Section
3.9
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Reporting
Status
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17
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Section
3.10
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Disclosure
of Transaction
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Section
3.11
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Disclosure
of Material Information
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18
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Section
3.12
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Form
D
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Section
3.13
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No
Integrated Offerings
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Section
3.14
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Pledge
of Shares
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Section
3.15
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Confidentiality
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18
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Section
3.16
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Updated
Schedule of Exceptions
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19
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ARTICLE
IV CONDITIONS
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19
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Section
4.1
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Conditions
Precedent to the Obligation of the Company to Close and to Sell
the
Shares
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Section
4.2
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Conditions
Precedent to the Obligation of the Purchasers to Close and to Purchase
the
Shares
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ARTICLE
V CERTIFICATE
LEGEND
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21
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Section
5.1
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Legend
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21
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ARTICLE
VI INDEMNIFICATION
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23
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Section
6.1
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Company
Indemnity
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23
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Section
6.2
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Indemnification
Procedure
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23
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ARTICLE
VII MISCELLANEOUS
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24
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Section
7.1
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Fees
and Expenses
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24
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Section
7.2
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Specific
Performance; Consent to Jurisdiction; Venue.
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24
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Section
7.3
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Entire
Agreement; Amendment
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25
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Section
7.4
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Notices
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25
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TABLE
OF
CONTENTS
(continued)
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Section
7.5
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Waivers
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Section
7.6
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Headings
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Section
7.7
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Successors
and Assigns
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Section
7.8
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No
Third Party Beneficiaries
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Section
7.9
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Governing
Law
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26
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Section
7.10
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Survival
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26
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Section
7.11
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Counterparts
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27
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Section
7.12
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Publicity
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27
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Section
7.13
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Severability
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27
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Section
7.14
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Further
Assurances
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27
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This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of May 4, 2007 by and between Foldera, Inc., a Nevada corporation (the
"Company"),
and
the purchasers listed on Exhibit
A
hereto
(each a "Purchaser"
and
collectively, the "Purchasers"),
for
the purchase and sale of shares of the Company’s common stock, par value $0.001
per share (the “Common
Stock”).
The
parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF COMMON STOCK
Section
1.1 Purchase
and Sale of Common Stock.
Upon the
following terms and conditions, the Company shall issue and sell to the
Purchasers, and the Purchasers shall purchase from the Company, shares of Common
Stock (the “Shares”)
at a
price per share of $0.60 (the “Per
Share Purchase Price”)
for a
minimum aggregate purchase price of One Million Dollars ($1,000,000) and a
maximum aggregate purchase price of Four Million Dollars ($4,000,000) (the
“Purchase
Price”).
Each
Purchaser shall pay the portion of the Purchase Price set forth opposite its
name on Exhibit
A
hereto.
The Company and the Purchasers are executing and delivering this Agreement
in
accordance with and in reliance upon the exemption from securities registration
afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and
the
rules and regulations promulgated thereunder (the "Securities
Act"),
including Regulation D ("Regulation
D"),
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
to be made hereunder.
Section
1.2 Purchase
Price and Closings.
In
consideration of and in express reliance upon the representations, warranties,
covenants, terms and conditions of this Agreement, the Company agrees to issue
and sell to the Purchasers and, in consideration of and in express reliance
upon
the representations, warranties, covenants, terms and conditions of this
Agreement, the Purchasers, severally but not jointly, agree to purchase the
number of Shares set forth opposite their respective names on Exhibit
A.
The
Shares shall be sold and funded in separate closings (each, a “Closing”),
in
each case pursuant to terms of this Agreement and provided that each such
Purchaser executes a signature page hereto and to each of the other Transaction
Documents (as defined in Section 2.1(b) hereof) to which the Purchasers are
a
party, and thereby agrees to be bound by and subject to the terms and conditions
hereof and thereof. The initial Closing under this Agreement (the “Initial
Closing”)
shall
take place on or about May 7, 2007 (the “Initial
Closing Date”)
and
shall be funded in the amount of at least One Million Dollars ($1,000,000).
Each
subsequent Closing under this Agreement (each, a “Subsequent
Closing”)
shall
take place upon the mutual agreement of the Company and the Purchasers, but
in
no event later than July 31, 2007 (each, a “Subsequent
Closing Date”).
The
Initial Closing Date and each Subsequent Closing Date are sometimes referred
to
in this Agreement as the “Closing
Date”.
Each
Closing under this Agreement shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at 10:00 a.m., New York time. Subject to the terms and conditions of
this
Agreement, at each Closing the Company shall deliver or cause to be delivered
to
each Purchaser (x) a certificate for the number of Shares set forth opposite
the
name of such Purchaser on Exhibit
A
hereto
and (y) any other documents required to be delivered pursuant to Article IV
hereof. At each Closing, each Purchaser shall deliver its portion of the
Purchase Price by wire transfer to an escrow account designated by the escrow
agent.
1
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchasers as follows, as of
the
date hereof and each Closing Date, except as set forth on the Schedule of
Exceptions attached hereto with each numbered Schedule corresponding to the
section number herein:
(a) Organization,
Good Standing and Power.
The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Nevada and has the requisite corporate
power to own, lease and operate its properties and assets and to conduct its
business as it is now being conducted. The Company does not have any
Subsidiaries (as defined in Section 2.1(g)) or own securities of any kind in
any
other entity except as set forth on Schedule
2.1(g)
hereto.
The Company and each such Subsidiary (as defined in Section 2.1(g)) is duly
qualified to do business as a foreign corporation and is in good standing in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary except for any jurisdiction(s)
(alone or in the aggregate) in which the failure to be so qualified will not
have a Material Adverse Effect. For the purposes of this Agreement,
"Material
Adverse Effect"
means
any effect on the business, results of operations, assets or condition
(financial or otherwise) of the Company that is material and adverse to the
Company and its subsidiaries, in the aggregate, and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company from entering into and performing any of its
obligations under the Transaction Documents (as defined below) in any material
respect.
(b) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and
perform this Agreement, the Registration Rights Agreement by and between the
Company and the Purchasers, dated as of the date hereof, substantially in the
form of Exhibit
B
attached
hereto (the “Registration
Rights Agreement”),
and
the Escrow Agreement by and among the Company, the Purchasers and the escrow
agent, dated as of the date hereof, substantially in the form of Exhibit
C
attached
hereto (the “Escrow
Agreement”
and,
together with this Agreement and the Registration Rights Agreement, the
"Transaction
Documents"),
and
to issue and sell the Shares in accordance with the terms hereof and to complete
the transactions contemplated by the Transaction Documents. The execution,
delivery and performance of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
and
validly authorized by all necessary corporate action, and, except as set forth
on Schedule
2.1(b),
no
further consent or authorization of the Company, its Board of Directors or
stockholders is required. When executed and delivered by the Company, each
of
the Transaction Documents shall constitute a valid and binding obligation of
the
Company enforceable against the Company in accordance with its terms, except
as
such enforceability may be limited by applicable bankruptcy, reorganization,
moratorium, liquidation, conservatorship, receivership or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies or
by other equitable principles of general application.
2
(c) Capitalization.
The
authorized capital stock of the Company as of the date hereof is set forth
on
Schedule
2.1(c)
hereto.
All of the outstanding shares of the Common Stock and any other outstanding
security of the Company have been duly and validly authorized and validly
issued, fully paid and nonassessable and were issued in accordance with the
registration or qualification provisions of the Securities Act, or pursuant
to
valid exemptions therefrom. Except as set forth in this Agreement and as set
forth on Schedule
2.1(c)
hereto,
no shares of Common Stock or any other security of the Company are entitled
to
preemptive rights, registration rights, rights of first refusal or similar
rights and there are no outstanding options, warrants, scrip, rights to
subscribe to, call or commitments of any character whatsoever relating to,
or
securities or rights convertible into, any shares of capital stock of the
Company. Furthermore, except as set forth in this Agreement and as set forth
on
Schedule
2.1(c)
hereto,
there are no contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of the capital
stock of the Company or options, securities or rights convertible into shares
of
capital stock of the Company. Except for customary transfer restrictions
contained in agreements entered into by the Company in order to sell restricted
securities or as provided on Schedule
2.1(c)
hereto,
the Company is not a party to or bound by any agreement or understanding
granting registration or anti-dilution rights to any person with respect to
any
of its equity or debt securities. Except as set forth on Schedule
2.1(c),
the
Company is not a party to, and it has no knowledge of, any agreement or
understanding restricting the voting or transfer of any shares of the capital
stock of the Company. Except as disclosed on Schedule
2.1(c),
(i)
there are no outstanding debt securities, or other form of material debt of
the
Company or any of its Subsidiaries, (ii) except for the Registration Rights
Agreement, there are no contracts, commitments, understandings, agreements
or
arrangements under which the Company or any of its Subsidiaries is required
to
register the sale of any of their securities under the Securities Act, (iii)
there are no outstanding securities of the Company or any of its Subsidiaries
which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings, agreements or arrangements by which the Company
or
any of its Subsidiaries is or may become bound to redeem a security of the
Company or any of its Subsidiaries, (iv) there are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by the
issuance of the Shares, (v) the Company does not have any stock appreciation
rights or “phantom stock” plans or agreements, or any similar plan or agreement
and (vi) as of the date of this Agreement, except as set forth in filings made
with the Commission, to the Company’s and each of its Subsidiaries’ knowledge,
no Person (as defined below) or group of related Persons beneficially owns
(as
determined pursuant to Rule 13d-3 promulgated under the Exchange Act) or has
the
right to acquire by agreement with or by obligation binding upon the Company,
beneficial ownership of in excess of 5% of the Common Stock. Any
Person with any right to purchase securities of the Company that would be
triggered as a result of the transactions contemplated hereby or by any of
the
other Transaction Documents has waived such rights or the time for the exercise
of such rights has passed, except where failure of the Company to receive such
waiver would not have a Material Adverse Effect. Except as set forth on
Schedule
2.1(c),
there
are no
options, warrants or other outstanding securities of the Company (including,
without limitation, any equity securities issued pursuant to any Company Plan)
the vesting of which will be accelerated by the transactions contemplated hereby
or by any of the other Transaction Documents.
3
(d) Issuance
of Shares.
The
Shares to be issued at each Closing have been duly authorized by all necessary
corporate action and, when paid for and issued in accordance with the terms
hereof, the Shares will be validly issued, fully paid and nonassessable and
free
and clear of all liens, encumbrances and rights of refusal of any kind and
the
holders shall be entitled to all rights accorded to a holder of Common Stock.
(e) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby
and
thereby do not and will not (i) violate any provision of the Company's Articles
of Incorporation (the “Articles”)
or
Bylaws (the “Bylaws”),
each
as amended to date, or any Subsidiary's comparable charter documents, (ii)
conflict with, or constitute a default (or an event which 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 agreement,
mortgage, deed of trust, indenture, note, bond, license, lease agreement,
instrument or obligation to which the Company or any of its Subsidiaries is
a
party or by which the Company or any of its Subsidiaries' respective properties
or assets are bound, or (iii) result in a violation of any federal, state,
local
or foreign statute, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations) applicable to the Company
or
any of its Subsidiaries or by which any property or asset of the Company or
any
of its Subsidiaries is bound or affected, except, in all cases, other than
violations pursuant to clauses (i) or (iii) (with respect to federal and state
securities laws) above, except, for such conflicts, defaults, terminations,
amendments, acceleration, cancellations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries is required under federal, state,
foreign 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 the Transaction Documents or issue and sell the Shares in accordance
with
the terms hereof (other than any filings, consents and approvals which may
be
required to be made by the Company under applicable state and federal securities
laws and rules, or as may be required for the Company to carry out its
obligations under the Registration Rights Agreement).
(f) Commission
Documents, Financial Statements.
The
Common
Stock of the Company is registered pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"),
and,
except as disclosed on Schedule
2.1(f)
hereto,
the Company
has timely filed all reports, schedules, forms, statements and other documents
required to be filed by it with the U.S. Securities and Exchange Commission
(the
“Commission”)
pursuant to the reporting requirements of the Exchange Act, including pursuant
to Sections 13, 14 or 15(d) thereof (all of the foregoing and all exhibits
included therein and financial statements and schedules thereto, including
filings incorporated by reference therein being referred to herein as the
"Commission
Documents").
At
the times of their respective filings, the Quarterly Reports on Form 10-QSB
for
the quarters ended September 30, 2006, June 30, 2006 and March 31, 2006
(collectively, the “Form
10-QSB”)
and
the Annual Report on Form 10-KSB for the year ended December 31, 2006 (the
“Form
10-KSB”)
complied in all material respects with the requirements of the Exchange Act
and
the rules and regulations of the Commission promulgated thereunder, and the
Form
10-QSB and Form 10-KSB at the time of their respective filings 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. As of their respective dates, the financial statements of the
Company included in the Commission Documents are complete and correct in all
material respects and comply with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules
and
regulations with respect thereto. Such financial statements have been prepared
in accordance with accounting principles generally accepted in the United States
("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 may not include
footnotes or may be condensed or summary statements), and fairly present in
all
material respects the financial position of the Company and its Subsidiaries
as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
4
(g) Subsidiaries.
The
Commission Documents or Schedule
2.1(g)
hereto
sets forth each Subsidiary of the Company, showing the jurisdiction of its
incorporation or organization and showing the percentage of each person's
ownership of the outstanding stock or other interests of such Subsidiary. For
the purposes of this Agreement, "Subsidiary"
shall
mean any corporation or other entity of which at least a majority of the
securities or other ownership interest having ordinary voting power (absolutely
or contingently) for the election of directors or other persons performing
similar functions are at the time owned directly or indirectly by the Company
and/or any of its other Subsidiaries. All of the outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly issued, and
are
fully paid and nonassessable. There is no outstanding preemptive, conversion
or
other rights, options, warrants or agreements granted or issued by or binding
upon any Subsidiary for the purchase or acquisition of any shares of capital
stock of any Subsidiary or any other securities convertible into, exchangeable
for or evidencing the rights to subscribe for any shares of such capital stock.
Neither the Company nor any Subsidiary is subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire any shares of the
capital stock of any Subsidiary or any convertible securities, rights, warrants
or options of the type described in the preceding sentence except as set forth
on Schedule
2.1(g)
hereto.
Neither the Company nor any Subsidiary is party to, nor has any knowledge of,
any agreement restricting the voting or transfer of any shares of the capital
stock of any Subsidiary.
(h) No
Material Adverse Change.
Since
December 31, 2006, the Company has not experienced or suffered any Material
Adverse Effect, except as disclosed in the Commission Documents or on
Schedule
2.1(h)
hereto.
(i) No
Undisclosed Liabilities.
Except
as disclosed in the Commission Documents or on Schedule
2.1(i)
hereto,
since December 31, 2006, neither the Company nor any of its Subsidiaries has
incurred any liabilities, obligations, claims or losses (whether liquidated
or
unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise)
other than those incurred in the ordinary course of the Company's or its
Subsidiaries respective businesses or which, individually or in the aggregate,
are not reasonably likely to have a Material Adverse Effect. Since December
31,
2006, except as disclosed in Commission Documents, none of the Company or any
of
its Subsidiaries has participated in any transaction material to the condition
of the Company which is outside of the ordinary course of its
business.
5
(j) No
Undisclosed Events or Circumstances.
Since
December 31, 2006, except as disclosed in the Commission Documents or on
Schedule
2.1(j)
hereto,
no event or circumstance has occurred or exists with respect to the Company
or
its Subsidiaries or their respective businesses, properties, operations or
financial condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed.
(k) Indebtedness.
The
Commission Documents or Schedule
2.1(k)
hereto
sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or
any
Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed in excess
of
$100,000 (other than trade accounts payable incurred in the ordinary course
of
business), (b) all guaranties, endorsements and other contingent obligations
in
respect of liabilities for borrowed money of others in excess of $100,000,
whether or not the same are or should be reflected in the Company’s balance
sheet (or the notes thereto), except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business; and (c) the present value of any lease payments in excess
of
$25,000 due under leases required to be capitalized in accordance with GAAP.
Neither the Company nor any Subsidiary is in default with respect to any
Indebtedness.
(l) Title
to Assets.
Each of
the Company and the Subsidiaries has good and valid title to all of its real
and
personal property reflected in the Commission Documents, free and clear of
any
mortgages, pledges, charges, liens, security interests or other encumbrances,
except for those indicated in the Commission Documents or on Schedule
2.1(l)
hereto
or such that, individually or in the aggregate, do not cause a Material Adverse
Effect. All such leases of the Company and each of its Subsidiaries are valid
and subsisting and in full force and effect.
(m) Actions
Pending.
There
is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary which questions the
validity of this Agreement or any of the other Transaction Documents or any
of
the transactions contemplated hereby or thereby or any action taken or to be
taken pursuant hereto or thereto. Except as set forth in the Commission
Documents or on Schedule
2.1(m)
hereto,
there is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the knowledge of the
Company, threatened against or involving the Company, any Subsidiary or any
of
their respective properties or assets, which individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. There are no
outstanding orders, judgments, injunctions, awards or decrees of any court,
arbitrator or governmental or regulatory body against the Company or any
Subsidiary or any officers or directors of the Company or any Subsidiary in
their capacities as such, which individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
6
(n) Compliance
with Law.
The
business of the Company and the Subsidiaries has been and is presently being
conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, except as set forth in
the
Commission Documents or on Schedule
2.1(n)
hereto
or such that, individually or in the aggregate, the noncompliance therewith
could not reasonably be expected to have a Material Adverse Effect. The Company
and each of its Subsidiaries have all franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals necessary
for
the conduct of its business as now being conducted by it unless the failure
to
possess such franchises, permits, licenses, consents and other governmental
or
regulatory authorizations and approvals, individually or in the aggregate,
could
not reasonably be expected to have a Material Adverse Effect.
(o) Taxes.
Except
as set forth in the Commission Documents or on Schedule
2.1(o)
hereto,
the Company and each of the Subsidiaries has accurately prepared in all material
respects and filed all federal, state and other tax returns required by law
to
be filed by it, has paid all taxes shown to be due and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of the Company and the Subsidiaries for all current taxes
and other charges to which the Company or any Subsidiary is subject and which
are not currently due and payable. Except as disclosed on Schedule
2.1(o)
hereto,
none of the federal income tax returns of the Company or any Subsidiary has
been
audited by the Internal Revenue Service. The Company has no knowledge of any
additional assessments, adjustments or contingent tax liability (whether federal
or state) of any nature whatsoever, whether pending or threatened against the
Company or any Subsidiary for any period, nor of any basis for any such
assessment, adjustment or contingency.
(p) Certain
Fees.
Except
as set forth on Schedule
2.1(p)
hereto,
the Company has not employed any broker or finder or incurred any liability
for
any brokerage or investment banking fees, commissions, finders' structuring
fees, financial advisory fees or other similar fees in connection with the
Transaction Documents.
(q) Disclosure.
Neither
this Agreement or the Schedules hereto nor any other documents, certificates
or
instruments furnished to the Purchasers by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements made herein or therein, in the
light of the circumstances under which they were made herein or therein, not
misleading.
(r) Operation
of Business.
The
Company and each of the Subsidiaries owns or possesses the rights to use all
patents, trademarks, domain names (whether or not registered) and any patentable
improvements or copyrightable derivative works thereof, websites and
intellectual property rights relating thereto, service marks, trade names,
copyrights, licenses and authorizations which are necessary for the conduct
of
its business as now conducted without, to its knowledge, any conflict or
infringement with the rights of others.
7
(s) Environmental
Compliance.
Except
as disclosed in the Commission Documents or on Schedule
2.1(s)
hereto,
the Company and each of its Subsidiaries have obtained all material approvals,
authorization, certificates, consents, licenses, orders and permits or other
similar authorizations of all governmental authorities, or from any other
person, that are required under any Environmental Laws. "Environmental Laws"
shall mean all applicable laws relating to the protection of the environment
including, without limitation, all requirements pertaining to reporting,
licensing, permitting, controlling, investigating or remediating emissions,
discharges, releases or threatened releases of hazardous substances, chemical
substances, pollutants, contaminants or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
material or wastes, whether solid, liquid or gaseous in nature. Except as set
forth on Schedule
2.1(s)
hereto,
the Company has all necessary governmental approvals required under all
Environmental Laws and used in its business or in the business of any of its
Subsidiaries, except for such instances as would not individually or in the
aggregate have a Material Adverse Effect. The Company and each of its
Subsidiaries are also in compliance with all other limitations, restrictions,
conditions, standards, requirements, schedules and timetables required or
imposed under all Environmental Laws. Except for such instances as would not
individually or in the aggregate have a Material Adverse Effect, there are
no
past or present events, conditions, circumstances, incidents, actions or
omissions relating to or in any way affecting the Company or its Subsidiaries
that violate or would be reasonably likely to violate any Environmental Law
after the Closing or that would be reasonably likely to give rise to any
environmental liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any
Environmental Law or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including, without limitation,
underground storage tanks), disposal, transport or handling, or the emission,
discharge, release or threatened release of any hazardous substance.
(t) Books
and Records; Internal Accounting Controls.
The
records and documents of the Company and its Subsidiaries accurately reflect
in
all material respects the information relating to the business of the Company
and its Subsidiaries, the location and collection of their assets, and the
nature of all transactions giving rise to the obligations or accounts receivable
of the Company or any Subsidiary. The Company and each of its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization, (iv)
the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate actions are taken with respect to any
differences and (v) accounts, notes and other receivables and inventory are
recorded accurately, and proper and adequate procedures are implemented to
effect the collection thereof on a current and timely basis. Except as set
forth
on Schedule
2.1(t)
hereto,
there are no significant deficiencies or material weaknesses in the design
or
operation of internal controls over financial reporting that would reasonably
be
expected to adversely affect the Company’s ability to record, process, summarize
and report financial information, and there is no fraud, whether or not
material, that involves management or, to the knowledge of the Company, other
employees who have a significant role in the Company’s internal controls and the
Company has provided to the Purchaser copies of any written materials relating
to the foregoing.
8
(u) Material
Agreements.
Except
for the Transaction Documents (with respect to clause (i) of this Section 2.1(u)
only) or as set forth in the Commission Documents or on Schedule
2.1(u)
hereto,
or as would not be reasonably likely to have a Material Adverse Effect, (i)
the
Company and each of its Subsidiaries have performed all obligations required
to
be performed by them to date under any written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement, filed or required to
be
filed with the Commission (the "Material
Agreements"),
(ii)
neither the Company nor any of its Subsidiaries has received any notice of
default under any Material Agreement and, (iii) to the best of the Company's
knowledge, neither the Company nor any of its Subsidiaries is in default under
any Material Agreement.
(v) Transactions
with Affiliates.
Except
as set forth in the Commission Documents, customary employment agreements or
on
Schedule
2.1(v)
hereto,
there are no loans, leases, agreements, contracts, royalty agreements,
management contracts or arrangements or other continuing transactions between
(a) the Company, any Subsidiary or any of their respective customers or
suppliers on the one hand, and (b) on the other hand, any officer, employee,
consultant or director of the Company, or any of its Subsidiaries, or any person
owning any capital stock of the Company or any Subsidiary or any member of
the
immediate family of such officer, employee, consultant, director or stockholder
or any corporation or other entity controlled by such officer, employee,
consultant, director or stockholder, or a member of the immediate family of
such
officer, employee, consultant, director or stockholder which, in each case,
is
required to be disclosed in the Commission Documents or in the Company’s most
recently filed definitive proxy statement on Schedule 14A, that is not so
disclosed in the Commission Documents or in such proxy statement.
(w) Securities
Act of 1933.
Subject
to the accuracy and completeness of the representations and warranties of the
Purchasers contained in Section 2.2 hereof, the Company has complied and will
comply with all applicable federal and state securities laws in connection
with
the offer, issuance and sale of the Shares hereunder. Neither the Company nor
anyone acting on its behalf, directly or indirectly, has or will sell, offer
to
sell or solicit offers to buy any of the Shares or similar securities to, or
solicit offers with respect thereto from, or enter into any negotiations
relating thereto with, any person, or has taken or will take any action so
as to
bring the issuance and sale of any of the Shares under the registration
provisions of the Securities Act and applicable state securities laws, and
neither the Company nor any of its affiliates, nor any person acting on its
or
their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of any of the Shares.
(x) Governmental
Approvals.
Except
as set forth on Schedule
2.1(x)
hereto,
and except for the filing of any notice prior or subsequent to the Closing
that
may be required under applicable state and/or federal securities laws (which
if
required, shall be filed on a timely basis), no authorization, consent,
approval, license, exemption of, filing or registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary for, or in connection with, the
execution or delivery of the Shares, or for the performance by the Company
of
its obligations under the Transaction Documents.
9
(y) Employees.
Neither
the Company nor any Subsidiary has any collective bargaining arrangements or
agreements covering any of its employees, except as set forth on Schedule
2.1(y)
hereto
or disclosed in the Commission Documents. Except as set forth on Schedule
2.1(y)
hereto
or disclosed in the Commission Documents, neither the Company nor any Subsidiary
has any employment contract, agreement regarding proprietary information,
non-competition agreement, non-solicitation agreement, confidentiality
agreement, or any other similar contract or restrictive covenant, relating
to
the right of any officer, employee or consultant to be employed or engaged
by
the Company or such Subsidiary required to be disclosed in the Commission
Documents that is not so disclosed. Since December 31, 2006, no officer,
consultant or key employee of the Company or any Subsidiary whose termination,
either individually or in the aggregate, would be reasonably likely to have
a
Material Adverse Effect, has terminated or, to the knowledge of the Company,
has
any present intention of terminating his or her employment or engagement with
the Company or any Subsidiary.
(z) Labor
Relations.
Except
as could not reasonably be expected to have a Material Adverse Effect, (i)
neither the Company nor any of its Subsidiaries is engaged in any unfair labor
practice, (ii) there is no strike, labor dispute, slowdown or stoppage pending
or, to the knowledge of the Company, threatened against the Company or any
of
its Subsidiaries, and (iii) neither the Company nor any of its Subsidiaries
is a
party to any collective bargaining agreement or contract.
(aa) Absence
of Certain Developments.
Except
as disclosed in the Commission Documents or on Schedule
2.1(aa)
hereto,
since December 31, 2006, neither the Company nor any Subsidiary
has:
(i) issued
any stock, bonds or other corporate securities or any right, options or warrants
with respect thereto;
(ii) borrowed
any amount in excess of $100,000 or incurred or become subject to any other
liabilities in excess of $100,000 (absolute or contingent) except current
liabilities incurred in the ordinary course of business which are comparable
in
nature and amount to the current liabilities incurred in the ordinary course
of
business during the comparable portion of its prior fiscal year, as adjusted
to
reflect the current nature and volume of the business of the Company and its
Subsidiaries;
(iii) discharged
or satisfied any lien or encumbrance in excess of $100,000 or paid any
obligation or liability (absolute or contingent) in excess of $100,000, other
than current liabilities paid in the ordinary course of business;
(iv) declared
or made any payment or distribution of cash or other property to stockholders
with respect to its stock, or purchased or redeemed, or made any agreements
so
to purchase or redeem, any shares of its capital stock, in each case in excess
of $50,000 individually or $100,000 in the aggregate;
10
(v) sold,
assigned or transferred any other tangible assets, or canceled any debts or
claims, in each case in excess of $100,000, except in the ordinary course of
business;
(vi) sold,
assigned or transferred any patent rights, trademarks, trade names, copyrights,
trade secrets or other intangible assets or intellectual property rights, or
disclosed any proprietary confidential information to any person except to
customers in the ordinary course of business or to the Purchasers or their
representatives;
(vii) suffered
any material losses or waived any rights of material value, whether or not
in
the ordinary course of business, or suffered the loss of any material amount
of
prospective business;
(viii) made
any
changes in employee compensation except in the ordinary course of business
and
consistent with past practices;
(ix) made
capital expenditures or commitments therefor that aggregate in excess of
$250,000;
(x) entered
into any material transaction, whether or not in the ordinary course of
business;
(xi) made
charitable contributions or pledges in excess of $10,000;
(xii) suffered
any material damage, destruction or casualty loss, whether or not covered by
insurance;
(xiii) experienced
any material problems with labor or management in connection with the terms
and
conditions of their employment; or
(xiv) entered
into an agreement, written or otherwise, to take any of the foregoing
actions.
(bb) Public
Utility Holding Company Act and Investment Company Act Status.
The
Company is not a “holding company” or a “public utility company” as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended.
The
Company is not, and as a result of and immediately upon the Closing will not
be,
an “investment company” or a company “controlled” by an “investment company,”
within the meaning of the Investment Company Act of 1940, as
amended.
(cc) ERISA.
No
liability to the Pension Benefit Guaranty Corporation has been incurred with
respect to any Plan by the Company or any of its Subsidiaries which is or would
be materially adverse to the Company and its Subsidiaries. The execution and
delivery of this Agreement and the issuance and sale of the Shares will not
involve any transaction which is subject to the prohibitions of Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)
or in
connection with which a tax could be imposed pursuant to Section 4975 of the
Internal Revenue Code of 1986, as amended, provided that, if any of the
Purchasers, or any person or entity that owns a beneficial interest in any
of
the Purchasers, is an “employee pension benefit plan” (within the meaning of
Section 3(2) of ERISA) with respect to which the Company is a “party in
interest” (within the meaning of Section 3(14) of ERISA), the requirements of
Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met. As used in
this
Section 2.1(cc), the term “Plan” shall mean an “employee pension benefit plan”
(as defined in Section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company
or
any Subsidiary or by any trade or business, whether or not incorporated, which,
together with the Company or any Subsidiary, is under common control, as
described in Section 414(b) or (c) of the Code.
11
(dd) Independent
Nature of Purchasers.
The
Company acknowledges that the obligations of each Purchaser under the
Transaction Documents are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under the Transaction
Documents and the Company shall not be excused from performance of its
obligations to any Purchaser under the Transaction Documents as a result of
nonperformance or breach by any other Purchaser. The Company acknowledges that
it has been advised that the decision of each Purchaser to purchase Shares
pursuant to this Agreement has been made by such Purchaser independently of
any
other purchaser and independently of any information, materials, statements
or
opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or of its Subsidiaries which may have made or given
by
any other Purchaser or by any agent or employee of any other Purchaser, and
no
Purchaser or any of its agents or employees shall have any liability to any
Purchaser (or any other person) relating to or arising from any such
information, materials, statements or opinions. The Company acknowledges that
nothing contained herein, or in any Transaction Document, and no action taken
by
any Purchaser pursuant hereto or thereto, shall be deemed to constitute the
Purchasers as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Purchasers are in any way acting
in
concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. The Company acknowledges that each
Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation, the rights arising out of this Agreement or out
of
the other Transaction Documents, and it shall not be necessary for any other
Purchaser to be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that for reasons of administrative convenience
only, the Transaction Documents have been prepared by counsel for one of the
Purchasers and such counsel does not represent all of the Purchasers but only
such Purchaser and the other Purchasers have retained their own individual
counsel with respect to the transactions contemplated hereby. The Company
acknowledges it has elected to provide all Purchasers with the same terms and
Transaction Documents for the convenience of the Company and not because it
was
required or requested to do so by the Purchasers. The Company acknowledges
such
procedure with respect to the Transaction Documents in no way creates a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to the Transaction Documents or the transactions contemplated
hereby or thereby.
12
(ee) Anti-takeover
Device.
Neither
the Company nor any of its Subsidiaries has any outstanding shareholder rights
plan or “poison pill” or any similar arrangement. There are no provisions of any
anti-takeover or
business combination statute applicable to the Company, the Articles of
Incorporation and the Bylaws which would
preclude the issuance and sale of the Shares and the consummation of the other
transactions contemplated by this Agreement or any of the other Transaction
Documents.
(ff) No
Integrated Offering.
In
reliance on the accuracy of the representation made by Purchaser in Section
2.2(i) and the Black Box, Inc., SEC No-Action Letter (June 26, 1990), 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
the offering of the Shares pursuant to this Agreement to be integrated with
prior offerings by the Company for purposes of the Securities Act which would
prevent the Company from selling the Shares pursuant to Regulation D and Rule
506 thereof under the Securities Act, or any applicable exchange-related
stockholder approval provisions, nor will the Company or any of its affiliates
or subsidiaries take any action or steps that would cause the offering of the
Shares to be integrated with other offerings
if such
other offering, if integrated, would cause the offer and sale of the Shares
not
to be exempt from registration pursuant to Regulation D and Rule 506 thereof
under the Securities Act. Except as set forth on Schedule
2.1(ff)
hereto,
the Company does not have any registration statement pending before the
Commission or currently under the Commission’s review and since October 1, 2006,
the Company has not offered or sold any of its equity securities or debt
securities convertible into shares of Common Stock.
(gg) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
The Company is in compliance with the applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”),
and
the rules and regulations promulgated thereunder, that are effective and for
which compliance by the Company is required as of the date hereof and intends
to
use its reasonable efforts comply with other applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the rules and regulations promulgated thereunder, upon
the effectiveness of such provisions or the date by which compliance therewith
by the Company is required.
Section
2.2 Representations
and Warranties of the Purchasers.
Each of
the Purchasers hereby represents and warrants to the Company with respect solely
to itself and not with respect to any other Purchaser as follows as of the
date
hereof and as of the Closing Date, except as set forth on the Schedule of
Exceptions attached hereto with each numbered schedule corresponding to the
section number herein:
(a) Organization
and Standing of the Purchasers.
If the
Purchaser is an entity, such Purchaser is a corporation, limited liability
company or partnership duly incorporated or organized, validly existing and
in
good standing under the laws of the jurisdiction of its incorporation or
organization.
(b) Authorization
and Power.
Such
Purchaser has the requisite power and authority to enter into and perform the
Transaction Documents and to purchase the Shares being sold to it hereunder.
The
execution, delivery and performance of the Transaction Documents by such
Purchaser and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate, partnership or other
action, and no further consent or authorization of such Purchaser or its Board
of Directors, stockholders, partners or members, as the case may be, is
required. When executed and delivered by the Purchasers, the other Transaction
Documents shall constitute valid and binding obligations of such Purchaser
enforceable against such Purchaser in accordance with their terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies or by other equitable principles of general
application.
13
(c) No
Conflict.
The
execution, delivery and performance of the Transaction Documents by such
Purchaser and the consummation by such Purchaser of the transactions
contemplated thereby and hereby do not and will not (i) violate any provision
of
such Purchaser’s charter or organizational documents, (ii) conflict with, or
constitute a default (or an event which 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 agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which such Purchaser is a party or by which such Purchaser’s respective
properties or assets are bound, or (iii) result in a violation of any federal,
state, local or foreign statute, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations) applicable to
such
Purchaser or by which any property or asset of such Purchaser are bound or
affected, except, in all cases, other than violations pursuant to clauses (i)
or
(iii) (with respect to federal and state securities laws) above, for such
conflicts, defaults, terminations, amendments, accelerations, cancellations
and
violations as would not, individually or in the aggregate, materially and
adversely affect such Purchaser’s ability to perform its obligations under the
Transaction Documents.
(d) Acquisition
for Investment.
Such
Purchaser is purchasing the Shares solely for its own account for the purpose
of
investment and not with a view to or for sale in connection with distribution.
Such Purchaser does not have a present intention to sell any of the Shares
nor a
present arrangement (whether or not legally binding) or intention to effect
any
distribution of any of the Shares to or through any person or entity;
provided,
however,
that by
making the representations herein, such Purchaser does not agree to hold the
Shares for any minimum or other specific term and reserves the right to dispose
of the Shares at any time in accordance with Federal and state securities laws
applicable to such disposition. Such Purchaser acknowledges that it (i) has
such
knowledge and experience in financial and business matters such that Purchaser
is capable of evaluating the merits and risks of Purchaser's investment in
the
Company, (ii) is able to bear the financial risks associated with an investment
in the Shares and (iii) has been given full access to such records of the
Company and the Subsidiaries and to the officers of the Company and the
Subsidiaries as it has deemed necessary or appropriate to conduct its due
diligence investigation.
(e) Rule
144.
Such
Purchaser understands that the Shares must be held indefinitely unless such
Shares are registered under the Securities Act or an exemption from registration
is available. Such Purchaser acknowledges that such person is familiar with
Rule
144 of the rules and regulations of the Commission, as amended, promulgated
pursuant to the Securities Act ("Rule
144"),
and
that such Purchaser has been advised that Rule 144 permits resales only under
certain circumstances. Such Purchaser understands that to the extent that Rule
144 is not available, such Purchaser will be unable to sell any Shares without
either registration under the Securities Act or the existence of another
exemption from such registration requirement.
14
(f) General.
Such
Purchaser understands that the Shares are being offered and sold in reliance
on
a transactional exemption from the registration requirements of federal and
state securities laws and the Company is relying upon the truth and accuracy
of
the representations, warranties, agreements, acknowledgments and understandings
of such Purchaser set forth herein in order to determine the applicability
of
such exemptions and the suitability of such Purchaser to acquire the Shares.
Such Purchaser understands that no United States federal or state agency or
any
government or governmental agency has passed upon or made any recommendation
or
endorsement of the Shares.
(g) No
General Solicitation.
Such
Purchaser acknowledges that the Shares were not offered to such Purchaser by
means of any form of general or public solicitation or general advertising,
or
publicly disseminated advertisements or sales literature, including (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine, or similar media, or broadcast over television or radio,
(ii) any seminar or meeting to which such Purchaser was invited by any of the
foregoing means of communications, or (iii) through electronic mail over the
Internet. Such Purchaser, in making the decision to purchase the Shares, has
relied upon independent investigation made by it and the representations,
warranties, agreements, acknowledgments and understandings set forth in the
Transaction Documents and has not relied on any information or representations
made by third parties.
(h) Accredited
Investor.
Such
Purchaser is an “accredited investor” (as defined in Rule 501 of Regulation D),
and such Purchaser has such experience in business and financial matters that
it
is capable of evaluating the merits and risks of an investment in the Shares.
Such Purchaser is not required to be registered as a broker-dealer under Section
15 of the Exchange Act and such Purchaser is not a broker-dealer. Such Purchaser
acknowledges that an investment in the Shares is speculative and involves a
high
degree of risk.
(i) Qualified
Institutional Buyer.
Such
Purchaser is a “qualified institutional buyer” (as such term is defined in Rule
144A(a)(1) of the Securities Act).
(j) Certain
Fees.
The
Purchasers have not employed any broker or finder or incurred any liability
for
any brokerage or investment banking fees, commissions, finders' structuring
fees, financial advisory fees or other similar fees in connection with the
Transaction Documents.
(k) Independent
Investment.
Except
as may be disclosed in any filings with the Commission by the Purchasers under
Section 13 and/or Section 16 of the Exchange Act, no Purchaser has agreed to
act
with any other Purchaser for the purpose of acquiring, holding, voting or
disposing of the Shares purchased hereunder for purposes of Section 13(d) under
the Exchange Act, and each Purchaser is acting independently with respect to
its
investment in the Shares.
15
(l) Trading
Activities.
Each
Purchaser’s trading activities with respect to the Shares has been and shall be
in compliance with all applicable federal and state securities laws.
No
Purchaser nor any of its affiliates has an open short position in the Common
Stock, each Purchaser agrees that it shall not, and that it will cause its
affiliates not to, engage in any short sales with respect to the Common
Stock.
ARTICLE
III
COVENANTS
The
Company covenants with each Purchaser as follows, which covenants are for the
benefit of each Purchaser and their respective permitted assignees.
Section
3.1 Securities
Compliance.
The
Company shall notify the Commission in accordance with its rules and
regulations, of the transactions contemplated by any of the Transaction
Documents and shall take all other necessary action and proceedings as may
be
required and permitted by applicable law, rule and regulation, for the legal
and
valid issuance of the Shares to the Purchasers, or their respective subsequent
holders.
Section
3.2 Registration
and Listing.
The
Company shall cause its Common Stock to continue to be registered under Sections
15(d) of the Exchange Act, to comply in all respects with its reporting and
filing obligations under the Exchange Act, to comply with all requirements
related to any registration statement filed pursuant to this Agreement, and
to
not take any action or file any document (whether or not permitted by the
Securities Act or the rules promulgated thereunder) to terminate or suspend
such
registration or to terminate or suspend its reporting and filing obligations
under the Exchange Act or Securities Act, except as permitted herein. The
Company will take all action necessary to continue the listing or trading of
its
Common Stock on the OTC Bulletin Board or any successor market. Subject to
the
terms of the Transaction Documents, the Company further covenants that it will
take such further action as the Purchasers may reasonably request, all to the
extent required from time to time to enable the Purchasers to sell the Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act. Upon
the
request of the Purchasers, the Company shall deliver to the Purchasers a written
certification of a duly authorized officer as to whether it has complied with
such requirements.
Section
3.3 Inspection
Rights.
The
Company shall permit, during normal business hours and upon reasonable request
and reasonable notice, each Purchaser or any employees, agents or
representatives thereof, so long as such Purchaser shall be obligated hereunder
to purchase the Shares or shall beneficially own any Shares, for purposes
reasonably related to such Purchaser's interests as a stockholder to examine
and
make reasonable copies of the records and books of account of, and visit and
inspect the properties, assets, operations and business of the Company and
any
Subsidiary, and to discuss the affairs, finances and accounts of the Company
and
any Subsidiary with any of its officers, consultants, directors, and key
employees.
16
Section
3.4 Compliance
with Laws.
The
Company shall comply, and cause each Subsidiary to comply, with all applicable
laws, rules, regulations and orders, noncompliance with which would be
reasonably likely to have a Material Adverse Effect.
Section
3.5 Keeping
of Records and Books of Account.
The
Company shall keep and cause each Subsidiary to keep adequate records and books
of account, in which complete entries will be made in accordance with GAAP
consistently applied, reflecting all financial transactions of the Company
and
its Subsidiaries.
Section
3.6 Reporting
Requirements.
If the
Company ceases to file its periodic reports with the Commission, or if the
Commission ceases making these periodic reports available via the Internet
without charge, then the Company shall, promptly after filing with the
Commission, furnish the following to each Purchaser so long as such Purchaser
shall be obligated hereunder to purchase the Shares or shall beneficially own
Shares:
(a) Quarterly
Reports on Form 10-QSB filed with the Commission ;
(b) Annual
Reports on Form 10-KSB filed with the Commission; and
(c) Copies
of
all notices, information and proxy statements in connection with any meetings,
that are, in each case, provided generally to holders of shares of Common Stock,
contemporaneously with the delivery of such notices or information to such
holders of Common Stock.
Section
3.7 Other
Agreements.
The
Company shall not enter into any agreement in which the terms of such agreement
would restrict or impair the right or ability of the Company or any Subsidiary
to perform its obligations under any Transaction Document.
Section
3.8 Use
of
Proceeds.
The net
proceeds from the sale of the Shares will be used by the Company for working
capital and general corporate purposes and not to redeem any Common Stock or
securities convertible, exercisable or exchangeable into Common Stock or to
settle any outstanding litigation.
Section
3.9 Reporting
Status. So
long
as a Purchaser beneficially owns any of the Shares, the Company shall timely
file all reports required to be filed with the Commission pursuant to the
Exchange Act, and the Company shall not terminate its status as an issuer
required to file reports under the Exchange Act even if the Exchange Act or
the
rules and regulations thereunder would permit such termination.
Section
3.10 Disclosure
of Transaction.
The
Company shall issue a press release describing the material terms of the
transactions contemplated hereby (the “Press
Release”)
as
soon as practicable after each Closing Date but in no event later than one
day
after the Closing Date. The Company shall also file with the Commission a
Current Report on Form 8-K (the “Form
8-K”)
describing the material terms of the transactions contemplated hereby (and
attaching as exhibits thereto this Agreement, the Registration Rights Agreement
and the Press Release) as soon as practicable following each Closing Date,
but
in no event more than two (2) Trading Days following such Closing Date, which
Press Release and Form 8-K shall be subject to prior review and comment by
the
Purchasers. "Trading
Day"
means
any day during which the OTC Bulletin Board (or other principal exchange on
which the Common Stock is traded) shall be open for trading or
quotation.
17
Section
3.11 Disclosure
of Material Information.
The
Company covenants and agrees that neither it nor any other person acting on
its
behalf has provided or will provide any Purchaser or its agents or counsel
with
any information that the Company believes constitutes material non-public
information, unless prior thereto such Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. The
Company understands and confirms that each Purchaser shall be relying on the
foregoing representations in effecting transactions in securities of the
Company.
Section
3.12 Form
D.
The
Company agrees to file a Form D with respect to the Shares as required by
Rule 506 under Regulation D and to provide a copy thereof to the Purchasers
promptly after such filing.
Section
3.13 No
Integrated Offerings.
The
Company shall not make any offers or sales of any security (other than the
Shares being offered or sold hereunder) under circumstances that would require
registration of the Shares being offered or sold hereunder under the Securities
Act.
Section
3.14 Pledge
of Shares.
The
Company agrees that the Shares may be pledged by a Purchaser in connection
with
a bona fide
margin
agreement or other loan or financing arrangement that is secured by the Common
Stock. The pledge of Common Stock shall not be deemed to be a transfer, sale
or
assignment of the Common Stock hereunder, and no Purchaser effecting a pledge
of
Common Stock shall be required to provide the Company with any notice thereof
or
otherwise make any delivery to the Company pursuant to this Agreement or any
other Transaction Document; provided that a Purchaser and its pledgee shall
be
required to comply with the provisions of Article V hereof in order to effect
a
sale, transfer or assignment of Common Stock to such pledgee. At the Purchasers'
expense, the Company hereby agrees to execute and deliver such documentation
as
a pledgee of the Common Stock may reasonably request in connection with a pledge
of the Common Stock to such pledgee by a Purchaser.
Section
3.15 Confidentiality.
Each
party agrees that it will not disclose and it will cause its officers,
directors, employees, representatives, agents, and advisers not to disclose,
any
Confidential Information (as hereinafter defined) with respect to the other
party furnished, at any time or in any manner, provided that (i) any disclosure
of such information may be made to which the Company and Purchaser consent
in
writing; and (ii) such information may be disclosed if so required by law or
regulatory authority. “Confidential
Information”
means
information or knowledge obtained in any due diligence or other investigation
relating to the negotiation and execution of this Agreement, information
relating to the terms of the transactions contemplated hereby and any
information identified as confidential in writing from one party to the other;
provided,
however,
that
Confidential Information shall not include information or knowledge that (a)
becomes generally available to the public absent any breach of this Section
3.15, (b) was available on a non-confidential basis to a party prior to its
disclosure pursuant to this Agreement, or (c) becomes available on a
non-confidential basis from a third party who is not bound to keep such
information confidential.
18
Section
3.16 Updated
Schedule of Exceptions.
At
least three (3) business days prior to any Subsequent Closing Date, the Company
will deliver to the Purchasers an updated Schedule of Exceptions reflecting
any
and all events that arose subsequent to the date of this Agreement which would
render untrue any representations or warranties of the Company if made as of
a
Subsequent Closing Date. Within two (2) business days of the delivery of the
update of the Schedule of Exceptions, each Purchaser may provide the Company
with notification that the closing conditions for a Subsequent Closing have
not
been met in accordance with the applicable provisions of Section 4.2 hereof.
If
a Subsequent Closing occurs, then the Schedule of Exceptions, as of, and with
respect to, such Subsequent Closing only, shall be deemed amended to reflect
the
information contained in such update. Nothing in this Section 3.16 nor the
fact
that the Purchasers complete a Subsequent Closing shall waive any rights of
the
Purchasers based on a breach of representations and warranties of the Company
as
of the Initial Closing.
ARTICLE
IV
CONDITIONS
Section
4.1 Conditions
Precedent to the Obligation of the Company to Close and to Sell the
Shares.
The
obligation hereunder of the Company to close and issue and sell the Shares
to
the Purchasers at each Closing Date is subject to the satisfaction or waiver,
at
or before each Closing of the conditions set forth below. These conditions
are
for the Company's sole benefit and may be waived by the Company at any time
in
its sole discretion.
(a) Accuracy
of the Purchasers’ Representations and Warranties.
The
representations and warranties of each Purchaser shall be true and correct
in
all material respects as of the date when made and as of each Closing Date
as
though made at that time, except for representations and warranties that are
expressly made as of a particular date, which shall be true and correct in
all
material respects as of such date.
(b) Performance
by the Purchasers.
Each
Purchaser shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to
be
performed, satisfied or complied with by such Purchaser at or prior to each
Closing Date.
(c) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement.
(d) Delivery
of Purchase Price.
The
Purchasers shall have delivered to the Company the Purchase Price for the Shares
to be purchased by each Purchaser.
(e) Delivery
of Transaction Documents.
The
Transaction Documents shall have been duly executed and delivered by the
Purchasers and, with respect to the Escrow Agreement, the escrow agent, to
the
Company.
19
(f) Minimum
Purchase Price.
The
Purchase Price shall be no less than One Million Dollars
($1,000,000).
Section
4.2 Conditions
Precedent to the Obligation of the Purchasers to Close and to Purchase the
Shares.
The
obligation hereunder of each Purchaser to purchase the Shares and consummate
the
transactions contemplated by this Agreement is subject to the satisfaction
or
waiver, at or before each Closing Date, of each of the conditions set forth
below. These conditions are for the Purchaser’s sole benefit and may be waived
by the Purchaser at any time in its sole discretion.
(a) Accuracy
of the Company's Representations and Warranties.
Each of
the representations and warranties of the Company in this Agreement and the
other Transaction Documents shall be true and correct in all respects as of
each
Closing Date, except for representations and warranties that speak as of a
particular date, which shall be true and correct in all respects as of such
date.
(b) Performance
by the Company.
The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to
be
performed, satisfied or complied with by the Company at or prior to each Closing
Date.
(c) No
Suspension, Etc.
Trading
in the Common Stock shall not have been suspended by the Commission or the
OTC
Bulletin Board (except for any suspension of trading of limited duration agreed
to by the Company, which suspension shall be terminated prior to the Closing),
and, at any time prior to the Closing Date, trading in securities generally
as
reported by Bloomberg Financial Markets ("Bloomberg")
shall
not have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by Bloomberg, or on the
New
York Stock Exchange, nor shall a banking moratorium have been declared either
by
the United States or New York State authorities.
(d) No
Injunction.
No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement.
(e) No
Proceedings or Litigation.
No
action, suit or proceeding before any arbitrator or any governmental authority
shall have been commenced, and no investigation by any governmental authority
shall have been threatened, against the Company or any Subsidiary, or any of
the
officers, directors or affiliates of the Company or any Subsidiary seeking
to
restrain, prevent or change the transactions contemplated by this Agreement,
or
seeking damages in connection with such transactions.
(f) Opinion
of Counsel.
The
Purchasers shall have received an opinion of counsel to the Company, dated
the
date of such Closing, substantially in the form of Exhibit
D
hereto,
with such exceptions and limitations as shall be reasonably acceptable to
counsel to the Purchasers.
20
(g) Shares.
At each
Closing, the Company shall have delivered to the Purchasers certificates
representing the Shares (in such denominations as each Purchaser may request)
duly executed by the Company, in each case, being acquired by the Purchasers
at
such Closing.
(h) Secretary's
Certificate.
The
Company shall have delivered to the Purchasers a secretary's certificate, dated
as of each Closing Date, as to (i) the resolutions adopted by the Board of
Directors approving the transactions contemplated hereby, (ii) the Articles,
(iii) the Bylaws, each as in effect at such Closing, and (iv) the authority
and
incumbency of the officers of the Company executing the Transaction Documents
and any other documents required to be executed or delivered in connection
therewith.
(i) Officer's
Certificate.
On each
Closing Date, the Company shall have delivered to the Purchasers a certificate
signed by an executive officer on behalf of the Company, dated as of such
Closing Date, confirming the accuracy of the Company's representations,
warranties and its compliance with covenants as of the Closing Date and
confirming the compliance by the Company with the conditions precedent set
forth
in paragraphs (b)-(e) of this Section 4.2 as of such Closing Date (provided
that, with respect to the matters in paragraphs (d) and (e) of this Section
4.2,
such confirmation shall be based on the knowledge of the executive
officer).
(j) Registration
Rights Agreement.
As of
the Initial Closing Date, the Company shall have duly executed and delivered
the
Registration Rights Agreement in the form of Exhibit
B
attached
hereto.
(k) Escrow
Agreement.
At the
Initial Closing, the Company and the escrow agent shall have executed and
delivered the Escrow Agreement to each Purchaser.
(l) ▇▇▇▇
Purchase Agreement.
At the
Initial closing, ▇▇▇▇▇▇▇ ▇▇▇▇ shall have executed and delivered the Stock
Purchase Agreement in the form of Exhibit
E
attached
hereto.
(m) Material
Adverse Effect.
No
Material Adverse Effect shall have occurred at or before each Closing Date.
(n) Minimum
Purchase Price.
The
Purchase Price shall be no less than One Million Dollars
($1,000,000).
ARTICLE
V
CERTIFICATE
LEGEND
Section
5.1 Legend.
Each
certificate representing the Shares shall be stamped or otherwise imprinted
with
a legend substantially in the following form (in addition to any legend required
by applicable state securities or "blue sky" laws):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR FOLDERA, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL
THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
21
The
Company agrees to reissue certificates representing any of the Shares without
the legend set forth above if at such time, prior to making any transfer of
any
such Shares, such holder thereof shall give written notice to the Company
describing the manner and terms of such transfer and removal as the Company
may
reasonably request. Such proposed transfer and removal will not be effected
until: (a) either (i) the Company has received an opinion of counsel reasonably
satisfactory to the Company, to the effect that the registration of the Shares
under the Securities Act is not required in connection with such proposed
transfer, (ii) a registration statement under the Securities Act covering such
proposed disposition has been filed by the Company with the Commission and
has
become and remains effective under the Securities Act, (iii) the Company has
received other evidence reasonably satisfactory to the Company that such
registration and qualification under the Securities Act and state securities
laws are not required, or (iv) the holder provides the Company with reasonable
assurances that such security can be sold pursuant to Rule 144 under the
Securities Act; and (b) either (i) the Company has received an opinion of
counsel reasonably satisfactory to the Company, to the effect that registration
or qualification under the securities or "blue sky" laws of any state is not
required in connection with such proposed disposition, or (ii) compliance with
applicable state securities or "blue sky" laws has been effected or a valid
exemption exists with respect thereto. The Company will respond to any such
notice from a holder within five (5) business days. In the case of any proposed
transfer under this Section 5.1, the Company will use reasonable efforts to
comply with any such applicable state securities or "blue sky" laws, but shall
in no event be required, (x) to qualify to do business in any state where it
is
not then qualified, or (y) to take any action that would subject it to tax
or to
the general service of process in any state where it is not then subject. The
restrictions on transfer contained in this Section 5.1 shall be in addition
to,
and not by way of limitation of, any other restrictions on transfer contained
in
any other section of this Agreement. Whenever
a
certificate representing the Shares is required to be issued to a Purchaser
without a legend, in lieu of delivering physical certificates representing
the
Shares, provided the Company's transfer agent is participating in the Depository
Trust Company ("DTC")
Fast
Automated Securities Transfer program, the Company shall use its reasonable
best
efforts to cause its transfer agent to electronically transmit the Shares to
a
Purchaser by crediting the account of such Purchaser's Prime Broker with DTC
through its Deposit Withdrawal Agent Commission ("DWAC")
system
(to the extent not inconsistent with any provisions of this
Agreement).
22
ARTICLE
VI
INDEMNIFICATION
Section
6.1 Company
Indemnity.
The
Company agrees to indemnify and hold harmless the Purchasers (and their
respective directors, officers, affiliates, agents, successors and assigns)
from
and against any and all losses, liabilities, deficiencies, costs, damages and
expenses (including, without limitation, reasonable attorneys’ fees, charges and
disbursements) incurred by the Purchasers and their directors, officers,
affiliates, agents, successors and assigns as a result of any inaccuracy in
or
breach of the representations, warranties or covenants made by the Company
herein, unless any such losses are as a result of the Purchaser’s gross
negligence, bad faith or wilful misconduct.
Section
6.2 Indemnification
Procedure.
Any
party entitled to indemnification under this Article VI (an "indemnified party")
will give written notice to the indemnifying party of any matters giving rise
to
a claim for indemnification; provided, that the failure of any indemnified
party
to give notice as provided herein shall not relieve the indemnifying party
of
its obligations under this Article VI except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action, proceeding or claim is brought against an indemnified party in respect
of which indemnification is sought hereunder, the indemnifying party shall
be
entitled to participate in and, unless in the reasonable judgment of the
indemnifying party a conflict of interest between it and the indemnified party
exists with respect to such action, proceeding or claim (in which case the
indemnifying party shall be responsible for the reasonable fees and expenses
of
one separate counsel for the indemnified parties), to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. In the event
that
the indemnifying party advises an indemnified party that it will not contest
such a claim for indemnification hereunder, or fails, within thirty (30) days
of
receipt of any indemnification notice to notify, in writing, such person of
its
election to defend, settle or compromise, at its sole cost and expense, any
action, proceeding or claim (or discontinues its defense at any time after
it
commences such defense), then the indemnified party may, at its option, defend,
settle or otherwise compromise or pay such action or claim. In any event, unless
and until the indemnifying party elects in writing to assume and does so assume
the defense of any such claim, proceeding or action, the indemnified party's
costs and expenses arising out of the defense, settlement or compromise of
any
such action, claim or proceeding shall be losses subject to indemnification
hereunder. The indemnified party shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the indemnified party which relates to
such
action or claim. The indemnifying party shall keep the indemnified party fully
apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the indemnifying party elects to defend
any such action or claim, then the indemnified party shall be entitled to
participate in such defense with counsel of its choice at its sole cost and
expense. The indemnifying party shall not be liable for any settlement of any
action, claim or proceeding effected without its prior written consent which
shall not be unreasonably withheld. Notwithstanding anything in this Article
VI
to the contrary, the indemnifying party shall not, without the indemnified
party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof which imposes any future obligation
on
the indemnified party or which does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the indemnified party
of
a release from all liability in respect of such claim. The indemnification
required by this Article VI shall be made by periodic payments of the amount
thereof during the course of investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred, so long as the
indemnified party irrevocably agrees to refund such moneys if it is ultimately
determined by a court of competent jurisdiction that such party was not entitled
to indemnification. The indemnity agreements contained herein shall be in
addition to (a) any cause of action or similar rights of the indemnified party
against the indemnifying party or others, and (b) any liabilities the
indemnifying party may be subject to pursuant to the law.
23
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisors, counsel, accountants
and
other experts, if any, and all other expenses, incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this
Agreement, provided
that the
Company shall pay all actual, reasonable attorneys' fees and expenses (including
disbursements and out-of-pocket expenses) for one counsel to the Purchasers
incurred by the Purchasers in connection with (i) the preparation, negotiation,
execution and delivery of this Agreement, the Registration Rights Agreement
and
the transactions contemplated thereunder, which payment shall be made at the
Initial Closing and shall not exceed $20,000, (ii) the filing and declaration
of
effectiveness by the Commission of the Registration Statement (as defined in
the
Registration Rights Agreement) and (iii) any amendments, modifications or
waivers of this Agreement or any of the other Transaction Documents. In
addition, the Company shall pay all reasonable fees and expenses incurred by
the
Purchasers in connection with the enforcement of this Agreement or any of the
other Transaction Documents, including, without limitation, all reasonable
attorneys' fees and expenses.
Section
7.2 Specific
Performance; Consent to Jurisdiction; Venue.
(a) The
Company and the Purchasers acknowledge and agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the other
Transaction Documents are not performed in accordance with their specific terms
or are otherwise breached. It is accordingly agreed that the parties shall
be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement or the other Transaction Documents and to enforce
specifically the terms and provisions hereof or thereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity.
(b) The
parties agree that venue for any dispute arising under this Agreement will
lie
exclusively in the state or federal courts located in New York County, New
York,
and the parties irrevocably waive any right to raise forum
non conveniens
or any
other argument that New York is not the proper venue. The parties irrevocably
consent to personal jurisdiction in the state and federal courts of the state
of
New York. The Company and each Purchaser consent to process being served in
any
such suit, action or proceeding by mailing a copy thereof to such party at
the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 7.2 shall affect or limit any right to serve
process in any other manner permitted by law. The Company and the Purchasers
hereby agree that the prevailing party in any suit, action or proceeding arising
out of or relating to the Shares, this Agreement or the Registration Rights
Agreement, shall be entitled to reimbursement for reasonable legal fees from
the
non-prevailing party.
24
Section
7.3 Entire
Agreement; Amendment.
This
Agreement and the Transaction Documents contain the entire understanding and
agreement of the parties with respect to the matters covered hereby and, except
as specifically set forth herein or in the other Transaction Documents, neither
the Company nor any Purchaser make any representation, warranty, covenant or
undertaking with respect to such matters, and they supersede all prior
understandings and agreements with respect to said subject matter, all of which
are merged herein. Following the Closing, no provision of this Agreement may
be
waived or amended other than by a written instrument signed by the Company
and
the Purchasers holding at least a majority of all Shares then held by the
Purchasers. Any amendment or waiver effected in accordance with this Section
7.3
shall be binding upon each Purchaser (and their permitted assigns) and the
Company.
Section
7.4 Notices.
Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy or facsimile 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 second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses
for
such communications shall be:
If
to the
Company: Foldera,
Inc.
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies (which copies
shall
not
constitute notice
to
the
Company) to: ▇▇▇▇▇▇▇▇▇
Traurig, LLP
The
MetLife Building
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
25
If
to any
Purchaser : At
the
address of such Purchaser set forth on Exhibit
A
to this
Agreement, with copies to Purchaser’s counsel as set forth on Exhibit
A
or as
specified in writing by such Purchaser with copies to:
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Any
party
hereto may from time to time change its address for notices by giving written
notice of such changed address to the other parties hereto.
Section
7.5 Waivers.
No
waiver by any party of any default with respect to any provision, condition
or
requirement of this Agreement shall be deemed to be a continuing waiver in
the
future or a waiver of any other provision, condition or requirement hereof,
nor
shall any delay or omission of any party to exercise any right hereunder in
any
manner impair the exercise of any such right accruing to it
thereafter.
Section
7.6 Headings.
The
article, section and subsection headings in this Agreement are for convenience
only and shall not constitute a part of this Agreement for any other purpose
and
shall not be deemed to limit or affect any of the provisions
hereof.
Section
7.7 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. After the Closing, the assignment by a party
to
this Agreement of any rights hereunder shall not affect the obligations of
such
party under this Agreement. Subject to Section 5.1 hereof, the Purchasers may
assign the Shares and its rights under this Agreement and the other Transaction
Documents and any other rights hereto and thereto without the consent of the
Company.
Section
7.8 No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
Section
7.9 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction. This Agreement shall not be interpreted or construed
with
any presumption against the party causing this Agreement to be
drafted.
Section
7.10 Survival.
The
representations and warranties of the Company and the Purchasers shall survive
the execution and delivery hereof and the Closing until the third anniversary
of
the Closing Date.
26
Section
7.11 Counterparts.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and shall become effective
when counterparts have been signed by each party and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart.
Section
7.12 Publicity.
The
Company agrees that it will not disclose, and will not include in any public
announcement, the names of the Purchasers without the consent of the Purchasers,
which consent shall not be unreasonably withheld or delayed, or unless and
until
such disclosure is required by law, rule or applicable regulation, and then
only
to the extent of such requirement.
Section
7.13 Severability.
The
provisions of this Agreement are severable and, in the event that any court
of
competent jurisdiction shall determine that any one or more of the provisions
or
part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part
of a
provision of this Agreement and this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of such
provision, had never been contained herein, so that such provisions would be
valid, legal and enforceable to the maximum extent possible.
Section
7.14 Further
Assurances.
From
and after the date of this Agreement, upon the request of the Purchasers or
the
Company, the Company and each Purchaser shall execute and deliver such
instruments, documents and other writings as may be reasonably necessary or
desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement and the Registration Rights Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
27
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
| FOLDERA, INC. | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇ |
||
| Title: Senior Vice President and Chief Financial Officer | ||
| PURCHASER: | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ |
||
| Title: Portfolio Manager | ||
EXHIBIT
A
LIST
OF PURCHASERS
|
Names
and Addresses of Purchasers
|
Number
of Shares Purchased
|
Dollar
Amount of Investment
|
||
|
INITIAL
CLOSING:
|
||||
|
Vision
Opportunity Master Fund, Ltd.
|
1,666,666
|
$1,000,000
|
▇▇
▇.
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇ and
Antti Uusiheimala
Email:
▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
1