Schedules and attachments have been omitted but will be provided to the Commission upon request SECURITIES PURCHASE AGREEMENT
Schedules
and attachments have been omitted but will
be
provided to the Commission upon request
This
Securities Purchase Agreement (this “Agreement”) is dated as of January 26, 2006
among ▇▇▇▇▇▇ Capital Corp., a Nevada corporation (the “Company”), Emerging
Growth Equities, Ltd., a Pennsylvania limited partnership (the “Placement
Agent”) and the purchasers identified on the signature pages hereto (each,
including its successors and assigns, a “Purchaser” and collectively the
“Purchasers”).
WHEREAS,
subject
to the terms and conditions set forth in this Agreement, the Company
desires to
issue and sell to each Purchaser, and each Purchaser, severally and
not jointly,
desires to purchase from the Company, securities of the Company as
more fully
described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION
of the
mutual covenants contained in this Agreement, and for other good and
valuable
consideration the receipt and adequacy of which are hereby acknowledged,
the
Company and each Purchaser agrees as follows:
ARTICLE
I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, the following
terms
have the meanings indicated in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control
with a
Person, as such terms are used in and construed under Rule 144 under
the
Securities Act.
“Closings”
means the Initial Closing and each Subsequent Closing.
“Closing
Date” means the date of (i) the Initial Closing; and (ii) each Subsequent
Closing, respectively.
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.001 per share,
and
any securities into which such common stock may hereinafter be converted
or
exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale
of assets or otherwise.
-
1 -
“Company
Counsel” means ▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇; Fax No. (▇▇▇) ▇▇▇-▇▇▇▇).
“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1 hereof.
“Escrow
Agreement” means the Escrow Agreement, dated the date hereof, among the Company,
the Placement Agent and the Purchasers, in the form of Exhibit
A
attached
hereto.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h) hereof.
“Initial
Closing” shall have the meaning ascribed to such term in Section 2.1
hereof.
“Liens”
shall have the meaning ascribed to such term in Section 3.1(a) hereof.
“Losses”
means any and all losses, claims, damages, liabilities, settlement
costs and
expenses, including without limitation costs of preparation and reasonable
attorneys’ fees.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b)
hereof.
“Person”
means an individual or corporation, partnership, trust, incorporated
or
unincorporated association, joint venture, limited liability company,
joint
stock company, government (or an agency or subdivision thereof) or
other entity
of any kind.
“Placement
Agent” means Emerging Growth Equities, Ltd., a Pennsylvania limited partnership
with a principal place of business at Parkview Tower, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including,
without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Purchase
Price” means US $0.70 per Share.
“Registration
Rights Agreement” means the Registration Rights Agreement, dated the date
hereof, among the Company and the Purchasers, in the form of Exhibit
B
attached
hereto.
-
2 -
“Registration
Statement” means a registration statement meeting the requirements set forth in
the Registration Rights Agreement and covering the resale of the Shares
and the
Warrant Shares by each Purchaser as provided for in the Registration
Rights
Agreement.
“Required
Approvals” shall have the meaning ascribed to such term in
Section
3.1(e) hereof.
“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common
Stock then issued or potentially issuable in the future upon exercise
or
conversion in full of all Warrants, ignoring any conversion or exercise
limits
set forth therein.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar
rule or
regulation hereafter adopted by the Commission having substantially
the same
effect as such Rule.
“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h) hereof.
“Securities”
means the Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended.
“Shares”
means the shares of Common Stock issued and sold pursuant to this Agreement,
together with any shares of Common Stock issued upon a stock split,
dividend or
other distribution, recapitalization or similar event with respect
to the
foregoing following the Closing Date.
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares
purchased hereunder as specified below such Purchaser’s name on the signature
page of this Agreement and next to the heading “Subscription Amount”, in United
States Dollars.
“Subsequent
Closing” shall have the meaning ascribed to such term in Section 2.1
hereof.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a)
attached
hereto.
“Trading
Day” means any day during which the Trading Market shall be open for business.
“Trading
Market” means the following markets or exchanges on which the Common Stock
is
listed or quoted for trading on the date in question: OTC Bulletin
Board, the
American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market
or the Nasdaq SmallCap Market.
-
3 -
“Transaction
Documents” means this Agreement, the Warrants and the Registration Rights
Agreement.
“Warrants”
means collectively the Common Stock purchase warrants, in the form
of
Exhibit
C
delivered to the Purchasers at each Closing in accordance with Section
2.2
hereof, which Warrants shall be exercisable immediately and for a term
of 5
years. Each Warrant shall be exercisable for shares of the Company’s Common
Stock in an amount equal to each Purchaser’s Subscription Amount divided by the
Purchase Price, with an exercise price equal to $1.00, such exercise
price and
number of shares subject to adjustment from time to time as set forth
in the
form of Warrant.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE
II
PURCHASE
AND SALE
2.1 Closings.
The
initial closing (the “Initial Closing”) of the transactions hereunder shall take
place at the offices of Company Counsel or at such other location as
the Company
and the Placement Agent shall mutually agree after the receipt by the
Company of
subscriptions for Shares from Purchasers with an aggregate Purchase
Price of at
least $8,000,000 and after it has been determined that all conditions
in this
Agreement and the Escrow Agreement have been met in the sole and absolute
discretion of the Company and the Placement Agent. Following the Initial
Closing, the Company may, at subsequent closings (the “Subsequent Closings” and
each a “Subsequent Closing”), accept additional subscriptions for Shares from
Purchasers until such time as the Company has issued Shares with an
aggregate
Purchase Price equal to $12,000,000. At each Closing, the Company agrees
to
issue and sell to each Purchaser participating at such Closing, and,
subject to
the terms and conditions contained herein, each such Purchaser severally
agrees
to purchase, an amount of the Shares set forth on the signature page
to this
Agreement. At each Closing, in accordance with the Escrow Agreement,
funds equal
to the Subscription Amount of each Purchaser shall be delivered to
the Company
and the Company shall deliver to each such Purchaser his, her or its
respective
Shares and Warrants as provided herein and the other items set forth
in Section
2.2 issuable at such Closing.
2.2 Conditions
to Closing.
Each
Closing shall be subject to the following conditions and deliveries
being met on
such Closing’s Closing Date:
(a) At
or prior to the Closing, unless otherwise indicated below, the Company
shall
deliver or cause to be delivered to each Purchaser participating in
such Closing
the following:
-
4 -
(i) a
stock certificate evidencing the Shares purchased by such Purchaser,
registered
in the name of such Purchaser;
(ii) a
Warrant registered in the name of such Purchaser;
(iii) the
Registration Rights Agreement, duly executed by the Company;
(iv) this
Agreement, duly executed by the Company; and
(v) a
legal
opinion of Company Counsel, in the form of Exhibit
D
attached
hereto.
(b) At
or prior to the Closing, each Purchaser participating in such Closing
shall
deliver or cause to be delivered to the Company the following:
(i) such
Purchaser’s Subscription Amount in accordance with the Escrow Agreement;
(ii) a
facsimile and an original signature page of this Agreement, duly executed
by
such Purchaser;
(iii) a
facsimile and an original signature page of the Registration Rights
Agreement
duly executed by such Purchaser; and
(iv) a
facsimile and an original signed Accredited Investor Confirmation.
(c) It
shall be a condition to the obligation of the Company, on the one hand,
to issue
and sell the Shares and the Warrants to be issued and sold at a Closing,
and of
the Purchasers participating in a Closing, on the other hand, to purchase
such
Shares and Warrants, that all representations and warranties of the
other
party(ies) contained herein shall remain true and correct as of the
Closing Date
of such Closing and all covenants and obligations of the other party(ies)
shall
have been fully performed or otherwise satisfied or waived if due on
or prior to
such date, including the
conditions to release the funds held in escrow as set forth in Section
3 of the
Escrow Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
Except
as set forth under the corresponding section of the disclosure schedules
delivered to the Purchasers concurrently herewith (the “Disclosure Schedules”)
which Disclosure Schedules shall be deemed a part hereof, the Company
hereby
makes the representations and warranties set forth below to each Purchaser:
-
5 -
(a) Subsidiaries.
All of
the direct and indirect subsidiaries of the Company are set forth on
Schedule
3.1(a). The Company owns, directly or indirectly, all of the capital
stock or
other equity interests of each Subsidiary free and clear of any lien,
charge,
security interest, encumbrance, right of first refusal or other restriction
(collectively, “Liens”), and all the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights.
(b) Organization
and Qualification.
Each of
the Company and the Subsidiaries is an entity duly incorporated or
otherwise
organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation or organization (as applicable),
with the
requisite power and authority to own and use its properties and assets
and to
carry on its business as described in its SEC Reports. Neither the
Company nor
any Subsidiary is in violation of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational
or
charter documents. Each of the Company and the Subsidiaries is duly
qualified to
do business and is in good standing as a foreign corporation or other
entity in
each jurisdiction in which the nature of the business conducted or
property
owned by it makes such qualification necessary, except where the failure
to be
so qualified or in good standing, as the case may be, could not, individually
or
in the aggregate: (i) adversely affect the legality, validity or enforceability
of any Transaction Document, (ii) have or result in or be reasonably
likely to
have or result in a material adverse effect on the results of operations,
assets, prospects, business or condition (financial or otherwise) of
the Company
and the Subsidiaries, taken as a whole, or (iii) adversely impair the
Company's
ability to perform fully on a timely basis its obligations under any
of the
Transaction Documents (any of (i), (ii) or (iii), a “Material Adverse Effect”).
(c) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into
and to
consummate the transactions contemplated by each of the Transaction
Documents
and otherwise to carry out its obligations hereunder or thereunder.
The
execution and delivery of each of the Transaction Documents by the
Company and
the consummation by it of the transactions contemplated hereby or thereby
have
been duly authorized by all necessary action on the part of the Company
and no
further consent or action is required by the Company other than Required
Approvals. Each of the Transaction Documents has been (or upon delivery
will be)
duly executed by the Company and, when delivered in accordance with
the terms
hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject
to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally
and general principles of equity.
(d) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by
the Company
and the consummation by the Company of the transactions contemplated
thereby do
not and will not: (i) conflict with or violate any provision of the
Company’s or
any Subsidiary’s certificate or articles of incorporation, bylaws or other
organizational or charter documents, or (ii) subject to obtaining the
Required
Approvals, conflict with, or constitute a default (or an event that
with notice
or lapse of time or both would become a default) under, or give to
others any
rights of termination, amendment, acceleration or cancellation (with
or without
notice, lapse of time or both) of, any agreement, credit facility,
debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or
other
understanding to which the Company or any Subsidiary is a party or
by which any
property or asset of the Company or any Subsidiary is bound or affected,
or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority
to which the Company or a Subsidiary is subject (including federal
and state
securities laws and regulations), or by which any property or asset
of the
Company or a Subsidiary is bound or affected; except in the case of
each of
clauses (ii) and (iii), such as could not, individually or in the aggregate,
have or result in a Material Adverse Effect.
-
6 -
(e) Filings,
Consents and Approvals.
Neither
the Company nor any Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents,
other than
(i) the filing with the Commission of the Registration Statement and
the consent
of the Commission to the effectiveness thereof, (ii) the notice and/or
application(s) to each applicable Trading Market for the issuance of
the Shares
and the Warrants and the listing of the Shares and the Warrant Shares
for
trading thereon in the time and manner required thereby and any required
approvals of such Trading Market thereof, (iii) the filing of Form
D with the
Commission and applicable Blue Sky filings and (iv) the filings required
pursuant to Section 4.3 hereunder (collectively, the “Required Approvals”).
(f) Issuance
of the Shares and Warrants.
The
Shares and Warrants are duly authorized and, when issued and paid for
in
accordance with the applicable Transaction Documents, will be duly
and validly
issued, fully paid and non-assessable, free and clear of all Liens.
Any
Warrant Shares, when issued and paid for in accordance with the warrant
certificate, will be duly authorized and validly issued, fully paid
and
nonassessable, free and clear of all Liens. The
Company has reserved from its duly authorized capital stock a number
of shares
of Common Stock for issuance of the Warrant Shares at least equal to
the
Required Minimum on the date hereof. The Company has not, and to the
knowledge
of the Company, no Affiliate of the Company has sold, offered for sale
or
solicited offers to buy or otherwise negotiated in respect of any security
(as
defined in Section 2 of the Securities Act) that would be integrated
with the
offer or sale of the Shares in a manner that would require the registration
under the Securities Act of the sale of the Shares to the Purchasers,
or that
would be integrated with the offer or sale of the Shares for purposes
of the
rules and regulations of any Trading Market.
-
7 -
(g) Capitalization.
The
number of shares and type of all authorized, issued and outstanding
capital
stock of the Company is set forth on Schedule 3.1(g) of the Disclosure
Schedules
attached hereto. No securities of the Company are entitled to preemptive
or
similar rights, and no Person has any right of first refusal, preemptive
right,
right of participation, or any similar right to participate in the
transactions
contemplated by the Transaction Documents. Except as contemplated hereby
and as
set forth on Schedule 3.1(g), there are no outstanding options, warrants,
script
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into
or
exchangeable for, or giving any Person any right to subscribe for or
acquire,
any shares of Common Stock, or contracts, commitments, understandings
or
arrangements by which the Company or any Subsidiary is or may become
bound to
issue additional shares of Common Stock, or securities or rights convertible
or
exchangeable into shares of Common Stock. The issuance and sale of
the Shares
and Warrants will not obligate the Company to issue shares of Common
Stock or
other securities to any Person (other than the Purchasers) and will
not result
in a right of any holder of Company securities to adjust the exercise,
conversion, exchange or reset price under such securities. All of the
outstanding shares of capital stock of the Company are validly issued,
fully
paid and nonassessable, have been issued in compliance with all federal
and
state securities laws, and none of such outstanding shares was issued
in
violation of any preemptive rights or similar rights to subscribe for
or
purchase securities. No further approval or authorization of any stockholder,
the Board of Directors of the Company or others is required for the
issuance and
sale of the Shares. Except as disclosed in the SEC Reports, there are
no
stockholders agreements, voting agreements or other similar agreements
with
respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s
stockholders.
(h) SEC
Reports; Financial Statements.
Except
as otherwise disclosed in the SEC Reports, the Company has filed all
reports
required to be filed by it under the Exchange Act, including pursuant
to Section
13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such
shorter period as the Company was required by law to file such material)
(the
foregoing materials being collectively referred to herein as the “SEC Reports”).
All SEC Reports filed within the 10 days preceding the date hereof
have been
made available to the Purchasers. Since the fiscal year end 2004, the
SEC
Reports complied in all material respects with the requirements of
the
Securities Act and the Exchange Act and the rules and regulations of
the
Commission promulgated thereunder, and none of the SEC Reports, when
filed,
contained any untrue statement of a material fact or omitted to state
a material
fact required to be stated therein or necessary in order to make the
statements
therein, in light of the circumstances under which they were made,
not
misleading. Since the fiscal year end 2004, the financial statements
of the
Company included in the SEC Reports comply in all material respects
with
applicable accounting requirements and the rules and regulations of
the
Commission with respect thereto as in effect at the time of filing.
Such
financial statements have been prepared in accordance with generally
accepted
accounting principles applied on a consistent basis during the periods
involved
(“GAAP”), except as may be otherwise specified in such financial statements
or
the notes thereto, and fairly present in all material respects the
financial
position of the Company and its consolidated subsidiaries as of and
for 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.
-
8 -
(i) Material
Changes.
Since
the date of the latest audited financial statements included within
the SEC
Reports, except as specifically disclosed in the SEC Reports: (i) there
has been
no event, occurrence or development that has had or that could result
in a
Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued
expenses
incurred in the ordinary course of business consistent with past practice
and
(B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or required to be disclosed in filings
made with the
Commission, (iii) the Company has not altered its method of accounting
or the
identity of its auditors, (iv) the Company has not declared or made
any dividend
or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of
its capital
stock, and (v) the Company has not issued any equity securities to
any officer,
director or Affiliate, except pursuant to existing Company stock option
or
similar plans.
(j) Litigation.
There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or
affecting the
Company, any Subsidiary or any of their respective properties before
or by any
court, arbitrator, governmental or administrative agency or regulatory
authority
(federal, state, county, local or foreign) (collectively, an “Action”) which:
(i) adversely affects or challenges the legality, validity or enforceability
of
any of the Transaction Documents or the Shares or (ii) could, if there
were an
unfavorable decision, individually or in the aggregate, have or reasonably
be
expected to result in a Material Adverse Effect. Neither the Company
nor any
Subsidiary, nor, to the knowledge of the Company, any director or officer
thereof, is or has been the subject of any Action involving a claim
of violation
of or liability under federal or state securities laws or a claim of
breach of
fiduciary duty. The Company does not have pending before the Commission
any
request for confidential treatment of information. There has not been,
and to
the knowledge of the Company, there is not pending or contemplated,
any
investigation by the Commission involving the Company or any current
or former
director or officer of the Company. The Commission has not issued any
stop order
or other order suspending the effectiveness of any registration statement
filed
by the Company or any Subsidiary under the Exchange Act or the Securities
Act.
(k) Compliance.
Neither
the Company nor any Subsidiary: (i) is in default under or in violation
of (and
no event has occurred that has not been waived that, with notice or
lapse of
time or both, would result in a default by the Company or any Subsidiary
under),
nor has the Company or any Subsidiary received notice of a claim that
it is in
default under or that it is in violation of, any indenture, loan or
credit
agreement or any other agreement or instrument to which it is a party
or by
which it or any of its properties is bound (whether or not such default
or
violation has been waived), (ii) is in violation of any order of any
court,
arbitrator or governmental body, or (iii) is or has been in violation
of any
statute, rule or regulation of any governmental authority, except in
each case
as could not, individually or in the aggregate, have or result in a
Material
Adverse Effect.
-
9 -
(l) Labor
Relations.
No
material labor dispute exists or, to the knowledge of the Company,
is imminent
with respect to any of the employees of the Company.
(m) Regulatory
Permits.
Except
as otherwise described in the SEC Reports, the Company and the Subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate
federal, state, local or foreign regulatory authorities necessary to
conduct
their respective businesses, except where the failure to possess such
permits
could not, individually or in the aggregate, have or reasonably be
expected to
result in a Material Adverse Effect (“Material Permits”), and neither the
Company nor any Subsidiary has received any notice of proceedings relating
to
the revocation or modification of any Material Permit.
(n) Title
to Assets.
The
Company and the Subsidiaries have good and marketable title in fee
simple to all
real property owned by them that is material to the business of the
Company and
the Subsidiaries and good and marketable title in all personal property
owned by
them that is material to the business of the Company and the Subsidiaries,
in
each case free and clear of all Liens, except for Liens as do not materially
affect the value of such property and do not materially interfere with
the use
made and proposed to be made of such property by the Company and the
Subsidiaries. Any real property and facilities held under lease by
the Company
and the Subsidiaries are held under valid, subsisting and enforceable
leases of
which the Company and the Subsidiaries are in compliance.
(o) Patents
and Trademarks.
The
Company and the Subsidiaries have, or have rights to use, all patents,
patent
applications, trademarks, trademark applications, service marks, trade
names,
copyrights, licenses and other similar rights necessary or material
for use in
connection with their respective businesses as described in the SEC
Reports and
which the failure to so have could have a Material Adverse Effect (collectively,
the “Intellectual Property Rights”). Neither the Company nor any Subsidiary has
received a written notice that the Intellectual Property Rights used
by the
Company or any Subsidiary violates or infringes upon the rights of
any Person.
To the knowledge of the Company, (i) all such Intellectual Property
Rights are
enforceable and (ii) there is no existing infringement by another Person
of any
of the Intellectual Property Rights.
(p) Insurance.
The
Company and the Subsidiaries are insured by insurers of recognized
financial
responsibility against such losses and risks and in such amounts as
are prudent
and customary in the businesses in which the Company and the Subsidiaries
are
engaged. To the Company’s knowledge, such insurance contracts and policies are
accurate and complete. Neither the Company nor any Subsidiary has any
reason to
believe it will not be able to renew its existing insurance coverage
as and when
such coverage expires or to obtain similar coverage from similar insurers
as may
be necessary to continue its business without a significant increase
in cost.
-
10 -
(q) Transactions
With Affiliates and Employees.
Except
as required to be set forth in the SEC Reports, none of the officers
or
directors of the Company and, to the knowledge of the Company, none
of the
employees of the Company is presently a party to any transaction with
the
Company or any Subsidiary (other than for services as employees, officers
and
directors), including any contract, agreement or other arrangement
providing for
the furnishing of services to or by, providing for rental of real or
personal
property to or from, or otherwise requiring payments to or from any
officer,
director or such employee or, to the knowledge of the Company, any
entity in
which any officer, director, or any such employee has a substantial
interest or
is an officer, director, trustee or partner.
(r) Certain
Fees.
Except
as set forth on Schedule 3.1(r), the Company has not engaged or retained
any
broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person and has not agreed to pay any commissions
or other
fees to any of the same with respect to the transactions contemplated
by this
Agreement.
(s) Private
Placement.
Assuming the accuracy of the representations and warranties of the
Purchasers
set forth in Sections 3.2(b)-(f), the offer, issuance and sale of the
Shares and
Warrants to the Purchasers as contemplated hereby are exempt from the
registration requirements of the Securities Act and do not contravene
the rules
and regulations of the Company’s current Trading Market.
(t) Listing
and Maintenance Requirements.
The
Company’s Common Stock is registered pursuant to Section 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its
knowledge
is likely to have the effect of, terminating the registration of the
Common
Stock under the Exchange Act nor has the Company received any notification
that
the Commission is contemplating terminating such registration. The
Company has
not, in the 12 months preceding the date hereof, received notice from
any
Trading Market on which the Common Stock is or has been listed or quoted
to the
effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is, and has no reason
to
believe that it will not in the foreseeable future continue to be,
in compliance
with all such listing and maintenance requirements.
(u) Tax
Status.
The
Company and each of its Subsidiaries has made or filed all federal,
state and
foreign income and all other tax returns, reports and declarations
required by
any jurisdiction to which it is subject (unless and only to the extent
that the
Company and each of its Subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes)
and has
paid all taxes and other governmental assessments and charges that
are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set
aside on
its books provisions reasonably adequate for the payment of all taxes
for
periods subsequent to the periods to which such returns, reports or
declarations
apply. There are no unpaid taxes in any material amount claimed to
be due by the
taxing authority of any jurisdiction, and the officers of the Company
know of no
basis for any such claim. The Company has not executed a waiver with
respect to
the statute of limitations relating to the assessment or collection
of any
foreign, federal, statue or local tax. None of the Company’s tax returns is
presently being audited by any taxing authority.
-
11 -
(v) No
General Solicitation or Advertising in Regard to this
Transaction.
Neither
the Company nor, to the knowledge of the Company, any of its directors
or
officers (i) has conducted or will conduct any general solicitation
(as that
term is used in Rule 502(c) of Regulation D) or general advertising
with respect
to the sale and issuance of the Shares or the Warrants, or (ii) made
any offers
or sales of any security or solicited any offers to buy any security
under any
circumstances that would require registration of the Shares, the Warrant
Shares
or the Warrants under the Securities Act or made any “directed selling efforts”
as defined in Rule 902 of Regulation S.
(w) Foreign
Corrupt Practices.
Neither
the Company, nor to the knowledge of the Company, any agent or other
person
acting on behalf of the Company, has (i) directly or indirectly, used
any
corporate funds for unlawful contributions, gifts, entertainment or
other
unlawful expenses related to foreign or domestic political activity,
(ii) made
any unlawful payment to foreign or domestic government officials or
employees or
to any foreign or domestic political parties or campaigns from corporate
funds,
(iii) failed to disclose fully any contribution made by the Company
(or made by
any person acting on its behalf of which the Company is aware) which
is in
violation of law, or (iv) violated in any material respect any provision
of the
Foreign Corrupt Practices Act of 1977, as amended.
(x) ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
The
Company is in material compliance with all provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act
of 2002 which are applicable to it as of each Closing Date, and the
rules and
regulations promulgated thereunder.
(y) Investment
Company.
The
Company is not, and is not an Affiliate of, and immediately after receipt
of
payment for the Shares and Warrants, will not be or be an Affiliate
of an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.
(z) No
Integrated Offering.
Assuming
the accuracy of the Purchasers’ representations and warranties set forth in
Section 3.2, neither the Company nor any of its Affiliates, nor any
Person
acting on its or their behalf has, directly or indirectly, made any
offers or
sales of any security or solicited any offers to buy any security,
under
circumstances that would cause this offering of the Securities to be
integrated
with prior offerings by the Company for purposes of the Securities
Act or any
applicable shareholder approval provisions, including, without limitation,
under
the rules and regulations of any exchange or automated quotation system
on which
any of the securities of the Company are listed or designated.
-
12 -
3.2 Representations
and Warranties of the Purchasers.
Each
Purchaser hereby, for itself and for no other Purchaser, represents
and warrants
to the Company as follows:
(a) Organization;
Authority.
If the
Purchaser is not an individual, such Purchaser is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its
organization with the requisite corporate or partnership power and
authority to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations thereunder. If
the
Purchaser is not an individual, the purchase by such Purchaser of the
Shares
hereunder has been duly authorized by all necessary action on the part
of such
Purchaser. Each of this Agreement and the Registration Rights Agreement
has been
duly executed by such Purchaser if the Purchaser is not an individual,
and when
delivered by such Purchaser in accordance with the terms hereof, will
constitute
the valid and legally binding obligation of such Purchaser, enforceable
against
it in accordance with its terms except (i) as limited by applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as limited
by laws
relating to the availability of specific performance, injunctive relief
or other
equitable remedies.
(b) Investment
Intent.
Such
Purchaser is acquiring the Securities as principal for its own account
and not
with a view to or for distributing or reselling such Securities or
any part
thereof, without prejudice, however, to such Purchaser’s right, subject to the
provisions of this Agreement, at all times to sell or otherwise dispose
of all
or any part of such Securities pursuant to an effective registration
statement
under the Securities Act or under an exemption from such registration
and in
compliance with applicable federal and state securities laws. Nothing
contained
herein shall be deemed a representation or warranty by such Purchaser
to hold
Securities for any period of time or limit such Purchaser’s right to sell the
Securities pursuant to the Registration Statement or otherwise in compliance
with applicable federal and state securities laws. Such Purchaser is
acquiring
the Securities hereunder in the ordinary course of its business. Such
Purchaser
does not have any agreement or understanding, directly or indirectly,
with any
Person to distribute any of the Securities.
(c) Purchaser
Status.
At the
time such Purchaser was offered the Securities, it was, and at the
date hereof
it is, and currently anticipates that on each date on which it exercises
any
Warrants it will be, an “accredited investor” as defined in Rule 501(a) under
the Securities Act. If the Purchaser is not an individual, such Purchaser
has
not been formed solely for the purpose of acquiring the Securities.
Such
Purchaser is not a registered broker-dealer under Section 15 of the
Exchange
Act.
(d) Experience
of such Purchaser.
Such
Purchaser, either alone or together with its representatives, has such
knowledge, sophistication and experience in business and financial
matters so as
to be capable of evaluating the merits and risks of the prospective
investment
in the Securities, and has so evaluated the merits and risks of such
investment.
Such Purchaser is able to bear the economic risk of an investment in
the
Securities and, at the present time, is able to afford a complete loss
of such
investment.
-
13 -
(e) General
Solicitation.
Such
Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published
in any
newspaper, magazine or similar media or broadcast over television or
radio or
presented at any seminar or any other general solicitation or general
advertisement.
(f) SEC
Reports and Risk Factors.
Such
Purchaser has read and reviewed the Company’s SEC Reports and the Risk Factors
contained in the Prospectus dated November 2, 2005 and the Prospectus
Supplement
dated November 17, 2005 (which were part of Registration Nos. 333-115514,
333-119065, 333-121052 and 333-122383 (the “Risk Factors”) and has had the
opportunity to ask questions of Company representatives regarding the
contents
of such SEC Reports and the Risk Factors. Each Purchaser has relied
on the SEC
Reports and the Risk Factors in conjunction with its investment decision-making
process.
(g) Certain
Fees.
Such
Purchaser has not engaged or retained any broker, financial advisor
or
consultant, finder, placement agent, investment banker, bank or other
Person and
has not agreed to pay any commissions or other fees to any of the same
with
respect to the transactions contemplated by this Agreement.
ARTICLE
IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities may only be disposed of in compliance with state and federal
securities laws. In connection with any transfer of Securities other
than
pursuant to an effective registration statement or Rule 144, to the
Company or
in a non-sale transaction to an Affiliate of a Purchaser, the Company
may
require the transferor thereof to provide to the Company an opinion
of counsel
selected by the transferor and reasonably acceptable to the Company,
the form
and substance of which opinion shall be reasonably satisfactory to
the Company,
to the effect that such transfer does not require registration of such
transferred Securities under the Securities Act.
(b)
Each
Purchaser, severally and not jointly with the other Purchasers, agrees
to the
imprinting, so long as is required by this Section 4.1(b), of the following
legend on any certificate evidencing Securities:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE
STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
REASONABLY ACCEPTABLE TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE
OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY
BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED
BY SUCH
SECURITIES.
-
14 -
The
Company acknowledges and agrees that a Purchaser may from time to time
pledge
pursuant to a bona fide margin agreement or grant a security interest
in some or
all of the Securities to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and, if required
under the terms of such arrangement, such Purchaser may transfer pledged
or
secured Securities to the pledgees or secured parties. Such pledge
or transfer
would not be subject to approval of the Company and no legal opinion
of legal
counsel of the pledgee, secured party or pledgor shall be required
in connection
therewith. Further, no notice shall be required of such pledge. At
the
appropriate Purchaser’s expense, the Company will execute and deliver such
reasonable documentation as a pledgee or secured party of Securities
may
reasonably request in connection with a pledge or transfer of the Securities,
including the preparation and filing of any required prospectus supplement
under
Rule 424(b)(3) of the Securities Act or other applicable provision
of the
Securities Act to appropriately amend the list of Selling Stockholders
thereunder.
(c) The
Company agrees that following such time as such legend is no longer
required, it
will, no later than three Trading Days following the delivery by a
Purchaser to
the Company or the Company’s transfer agent of a certificate representing the
Shares, or the Warrant Shares, as applicable, issued with a restrictive
legend
(such third Trading Day, the “Legend Removal Date”), together with all necessary
documentation relating to the legend removal request, deliver or cause
to be
delivered to such Purchaser a certificate representing such shares
that is free
from all restrictive and other legends. The Company may not make any
notation on
its records or give instructions to any transfer agent of the Company
that
enlarge the restrictions on transfer set forth in this Section.
4.2 Exercise
Procedures.
The
form of Notice of Exercise included in the Warrants set forth the totality
of
the procedures required of the Purchasers in order to exercise the
Warrants. No
additional legal opinion or other information or instructions shall
be required
of the Purchasers to exercise their Warrants. The Company shall honor
exercises
of the Warrants and shall deliver Warrant Shares in accordance with
the terms,
conditions and time periods set forth in the Transaction Documents.
-
15 -
4.3 Securities
Laws Disclosure; Publicity.
The
Company shall, by 8:30 a.m. Eastern time on the second Trading Day
following the
date of this Agreement, issue a press release or file a Current Report
on Form
8-K reasonably acceptable to each Purchaser disclosing all material
terms of the
transactions contemplated hereby. The Company and the Purchasers shall
consult
with each other in issuing any press releases with respect to the transactions
contemplated hereby and neither the Company nor any Purchaser shall
issue any
such press release or otherwise make any such public statement without
the prior
consent of the Company, with respect to any press release of any Purchaser,
with
respect to any press release of the Company, which consent shall not
unreasonably be withheld, except if such disclosure is required by
law, in which
case the disclosing party shall promptly provide the other party with
prior
notice of such public statement or communication. Notwithstanding the
foregoing,
other than in any registration statement filed pursuant to the Registration
Rights Agreement and filings related thereto, the Company shall not
publicly
disclose the name of any Purchaser, or include the name of any Purchaser
in any
filing with the Commission or any regulatory agency or Trading Market,
without
the prior written consent of such Purchaser, except to the extent such
disclosure is required by law or Trading Market regulations, in which
case the
Company shall provide each Purchaser with prior notice of such disclosure.
4.4 Use
of
Proceeds.
The
Company shall use the net proceeds from the sale of the Shares hereunder
for
working capital purposes including poultry processing, seafood processing,
UnifreshÔ
Footbath
concentrate
and
UnifreshÔ
Pen
Spray concentrate and other products and/or businesses the Company
deems
necessary,
and not
for the satisfaction of any portion of the Company’s past due payables
outstanding as of December 31, 2005 (other than payment of past due
payables
existing as of December 31, 2005 in an amount not to exceed $500,000),
to redeem
any Company equity or equity-equivalent securities or to settle any
outstanding
litigation.
4.5 Confidentiality.
Each
Purchaser agrees that he, she or it will keep confidential and will
not
disclose, divulge or use for any purpose other than to monitor his,
her or its
investment in the Company any confidential, proprietary or secret information
which such Purchaser
may obtain from the Company pursuant to financial statements, reports
and other
materials submitted by the Company to such Purchaser pursuant to this
Agreement
or otherwise (but not including the SEC Reports) (“Confidential Information”),
unless such Confidential Information is known, or until such Confidential
Information becomes known, to the public (other than as a result of
a breach of
this Section 4.5 by such Purchaser); provided,
however,
that a
Purchaser may disclose Confidential Information (i) to his, her or its
attorneys, accountants, consultants, and other professionals to the
extent
necessary to obtain their services in connection with monitoring his,
her or its
investment in the Company,
or (ii)
as may otherwise be required by law, provided that the Purchaser takes
reasonable steps to minimize the extent of any such required
disclosure.
4.6 Placement
Agent.
In
consideration for services rendered by the Placement Agent in placing
the
Securities, the Company has agreed to pay the Placement Agent on each
Closing
Date a cash payment equal to six percent (6%) of the gross proceeds
from the
sale of the Securities at each such Closing sold pursuant to this Agreement
and
to issue to the Placement Agent on the last Closing Date a Warrant,
in the form attached as Exhibit
C,
exercisable for shares of the Company’s Common Stock in an amount equal to six
percent (6%) of the gross proceeds from the sale of the Securities
divided by
the Purchase Price, with an exercise price equal to $1.00, such exercise
price
and number of shares subject to adjustment from time to time as set
forth in the
form of Warrant, and exercisable immediately for a term of five (5)
years.
-
16 -
4.7 Furnishing
of Information.
As
long
as any Purchaser owns Securities, the Company covenants to timely file
(or
obtain extensions in respect thereof and file within the applicable
grace
period) all reports required to be filed by the Company after the date
hereof
pursuant to the Exchange Act.
4.8 Additional
Covenants of the Company.
From
and after the date hereof, the Company hereby covenants and agrees
as
follows:
(a) The
Placement Agent shall have the opportunity to review any changes or
modifications, if any, made to certain existing agreements of the Company,
including but not limited to that certain Patent and Technology Sub-License
Agreement dated July 15, 2005 by and among the Company, ▇▇▇▇▇▇ Products
IP
Holdings Corp. and Pharlo IP, LLC, that certain Exclusive Field of
Use License
Agreement and Product Sale Agreement dated September 16, 2004, as amended,
by
and among the Company, ▇▇▇▇ ▇▇▇▇▇ Special Products, LLC, Pharlo Citrus
Technologies, Inc., Pharlo IP, LLC and Indian River Labs, and certain
Company
employment agreements;
(b) The
Company shall take all necessary actions, including preparation of
proxy
materials and solicitation of the Company’s shareholders in connection with the
next scheduled annual meeting of shareholders, to seek shareholder
approval to
increase the size of the existing Board of Directors of the Company
from five to
seven members;
(c) The
Company shall amend, if necessary, and as soon as reasonably practicable,
the
Prospectus dated November 2, 2005 and the Prospectus Supplement dated
November
17, 2005 (which were part of Registration Nos. 333-115514, 333-119065,
333-121052 and 333-122383) and make the Prospectus and Prospectus Supplement
available for use by the listed selling stockholders; and
(d) The
Company shall take all actions necessary to appoint an individual selected
by
the Purchasers, and reasonably agreeable to the Company’s Board of Directors
(the “Board”), to fill the existing vacancy on the Company’s Board, and to
appoint such individual to serve on the Board’s compensation committee, and if
so qualified, the audit committee. The Company further covenants and
agrees that
it will take all actions necessary to ensure that such individual will
be
included on the Company’s slate of Board nominees submitted for a shareholder
vote at the Company’s next scheduled annual meeting of shareholders.
(e) The
Company shall permit the Purchasers, acting by a majority vote, to
designate a
person to attend and observe (in person or telephonically) presentations
to and
matters before the Board; provided, however, that such designee shall
remove
himself or herself prior to any Board vote or taking of formal Board
action, if
such removal is requested by the Board.
-
17 -
ARTICLE
V
MISCELLANEOUS
5.1 Fees
and Expenses.
The
parties shall be responsible for their own legal and other expenses,
if any, in
connection with this transaction.
5.2 Entire
Agreement.
The
Transaction Documents, together with the exhibits and schedules thereto,
contain
the entire understanding of the parties with respect to the subject
matter
hereof and supersede all prior agreements and understandings, oral
or written,
with respect to such matters, which the parties acknowledge have been
merged
into such documents, exhibits and schedules.
5.3 Notices.
Any and
all notices or other communications or deliveries required or permitted
to be
provided hereunder shall be in writing and shall be deemed given and
effective
on the earliest of (a) the date of transmission, if such notice or
communication
is delivered via facsimile at the facsimile number specified on the
signature
page attached hereto prior to 5:30 p.m. (Boston time) on a Trading
Day and an
electronic confirmation of delivery is received by the sender, (b)
the next
Trading Day after the date of transmission, if such notice or communication
is
delivered via facsimile at the facsimile number specified in this Section
on a
day that is not a Trading Day or later than 5:30 p.m. (Boston time)
on any
Trading Day, (c) the next Trading Day following the date of mailing,
if sent by
U.S. nationally recognized overnight courier service, or (d) upon actual
receipt
by the party to whom such notice is required to be given. The addresses
for such
notices and communications are those set forth on the signature pages
hereof, or
such other address as may be designated in writing hereafter, in the
same
manner, by such Person.
5.4 Amendments;
Waivers.
No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company and the Purchasers holding, together,
a
Majority of the Shares and Warrant Shares (assuming for such purpose
the
exercise or conversion of all outstanding Warrants into Warrant Shares).
No
waiver 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 subsequent default or a waiver of any other provision,
condition
or requirement hereof, nor shall any delay or omission of either party
to
exercise any right hereunder in any manner impair the exercise of any
such
right.
5.5 Construction.
The
headings herein are for convenience only, do not constitute a part
of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language
chosen by the parties to express their mutual intent, and no rules
of strict
construction will be applied against any party.
-
18 -
5.6 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties
and
their successors and permitted assigns. The Company may not assign
this
Agreement or any rights or obligations hereunder without the prior
written
consent of the Purchasers. Any Purchaser may assign its rights under
this
Agreement and the Registration Rights Agreement to any Person to whom
such
Purchaser assigns or transfers any Securities as long as such Purchaser
provides
prompt notice to the Company.
5.7 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their
respective
successors and permitted assigns and is not for the benefit of, nor
may any
provision hereof be enforced by, any other Person.
5.8 Governing
Law; Venue; Waiver of Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and
enforced in
accordance with the internal laws of the State of New York, without
regard to
the principles of conflicts of law thereof. Each party agrees that
all legal
proceedings concerning the interpretations, enforcement and defense
of the
transactions contemplated by this Agreement and any other Transaction
Documents
(whether brought against a party hereto or its respective affiliates,
directors,
officers, shareholders, employees or agents) shall be commenced exclusively
in
the state and federal courts sitting in the City of New York. Each
party hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal
courts sitting in the City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or
with any
transaction contemplated hereby or discussed herein (including with
respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding,
any claim
that it is not personally subject to the jurisdiction of any such court,
that
such suit, action or proceeding is improper or inconvenient venue for
such
proceeding. Each party hereby irrevocably waives personal service of
process and
consents to process being served in any such suit, action or proceeding
by
mailing a copy thereof via registered or certified mail or overnight
delivery
(with evidence of delivery) 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 contained
herein
shall be deemed to limit in any way any right to serve process in any
manner
permitted by law. The parties hereby waive all rights to a trial by
jury. If
either party shall commence an action or proceeding to enforce any
provisions of
the Transaction Documents, then the prevailing party in such action
or
proceeding shall be reimbursed by the other party for its attorneys'
fees and
other costs and expenses incurred with the investigation, preparation
and
prosecution of such action or proceeding.
-
19 -
5.9
Survival.
The
representations and warranties contained herein shall survive the Closing
and
the delivery, exercise of the Securities, as applicable for the applicable
statue of limitations.
5.10 Execution.
This
Agreement may be executed in two or more counterparts, all of which
when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered
to the
other party, it being understood that both parties need not sign the
same
counterpart. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation
of the
party executing (or on whose behalf such signature is executed) such
document
with the same force and effect as if such facsimile signature page
were an
original thereof.
5.11 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable
in any
respect, the validity and enforceability of the remaining terms and
provisions
of this Agreement shall not in any way be affected or impaired thereby
and the
parties will attempt to agree upon a valid and enforceable provision
that is a
reasonable substitute therefore, and upon so agreeing, shall incorporate
such
substitute provision in this Agreement.
5.12 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost,
stolen
or destroyed, the Company shall issue or cause to be issued in exchange
and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of
evidence
reasonably satisfactory to the Company of such loss, theft or destruction
and
customary and reasonable indemnity including without limitation, an
affidavit of
loss executed by the Purchaser, if requested.
5.13 Independent
Nature of Purchasers’ Obligations and Rights.
The
obligations of each Purchaser under any Transaction Document 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 any Transaction Document. Nothing contained herein
or in any
Transaction Document, and no action taken by any Purchaser pursuant
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.
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. Each Purchaser has been represented by its own separate legal
counsel
in their review and negotiation of the Transaction Documents. The Company
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.
-
20 -
(Signature
Pages Follow)
-
21 -
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories
as of
the date first indicated above.
|
▇▇▇▇▇▇
CAPITAL CORP.
|
Address
for Notice:
|
|
|
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
|
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Title:
EVP
|
▇▇▇.▇▇▇.▇▇▇▇
(phone)
|
|
|
▇▇▇.▇▇▇.▇▇▇▇
(fax)
|
||
|
With
a copy to (which shall not constitute notice):
|
||
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
|
||
|
▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
|
||
|
Reservoir
Place
|
||
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
||
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
▇▇▇.▇▇▇.▇▇▇▇
(phone)
|
||
|
▇▇▇.▇▇▇.▇▇▇▇
(fax)
|
||
|
PLACEMENT
AGENT
|
||
|
EMERGING
GROWTH EQUITIES, LTD.
|
Address
for Notice:
|
|
|
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
Parkview
Tower
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
|
|
|
Title: PRESIDENT
& CEO
|
King
of Prussia, PA 19406
|
|
|
Attn:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
-
22 -
[PURCHASER
SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase
Agreement
to be duly executed by their respective authorized signatories as of
the date
first indicated above.
Name
of
Investing Entity or Individual:___________________________________________
Signature
of Authorized Signatory of Investing Entity: ___________________________
Name
of
Authorized Signatory if not an Individual:___________________________
Title
of
Authorized Signatory if not an Individual____________________________
Email
Address of Authorized Entity or
Individual:___________________________
Address
for Notice of Investing Entity or Individual:
Address
for Delivery of Securities for Investing Entity or Individual (if not
same as
above):
Subscription
Amount:
Shares:
Warrant
Shares:
EIN
or
SSN Number:
[PROVIDE THIS UNDER SEPARATE COVER]
[SIGNATURE
PAGES CONTINUE]
-
23 -