STOCK PURCHASE AGREEMENT
AGREEMENT
dated as
of the 30th day of October, 2008 (the “Effective Date”) by and between Shuffle
Master, Inc. (“Seller”) with an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (“Buyer”) with an address c/o ▇▇▇▇▇▇▇ ▇▇▇▇ LLP,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Buyer
desires to purchase from Seller and Seller desires to sell to Buyer shares
of
common stock and a warrant to purchase shares of common stock of Sona Mobile
Holdings Corp. (“Corporation”) on the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE,
in
consideration of the premises and of the mutual covenants hereinafter set forth,
the parties hereto agree as follows:
| 1. |
Purchase
of Stock and Warrant.
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As
of the
Effective Date, Seller hereby conveys, transfers, and assigns, to Buyer, and
Buyer hereby purchases and accepts from Seller, 3,974,359 shares of common
stock
of the Corporation (collectively, the “Shares”) and Warrant No. 2006-6 (the
“Warrant”). Immediately upon receipt of the Purchase Price, Seller shall deliver
to Buyer by national recognized overnight courier or as otherwise reasonably
instructed by Buyer (collectively “Courier”) stock powers (the “Stock Powers”)
separate from the stock certificates constituting all the Shares (the
“Certificates”) and an assignment of the Warrant to effect such transfers,
accompanied by a medallion guaranty. The Certificates currently bear restrictive
legends (the “Legends”) and Seller hereby agrees to have all Legends removed
from the Certificates within twenty (20) business days of the Effective Date.
Upon Seller’s receipt of the unlegended Certificates, but not more than 25
business days after the Effective Date, Seller shall deliver to Buyer by Courier
the Certificates accompanied by the Stock Powers, as modified as may be required
to reflect new identification numbers, if any, for the unlegended Certificates.
Notwithstanding anything contained herein to the contrary, title to the Shares
and the Warrant shall pass from Seller to Buyer on the Effective
Date.
| 2. |
Purchase
Price.
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The
purchase price for the Shares and Warrant being sold pursuant to paragraph
1
above is $0.01632968 per share for the Shares and $100 for the Warrant
(collectively, the “Purchase Price”). The Purchase Price for the Shares and the
Warrant shall be delivered to Seller on the Effective Date by wire transfer
as
follows:
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Bank:
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ABA:
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SWIFT:
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Name:
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Acct
#:
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Address:
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1 of 7
| 3. |
Representations
and Warranties of Seller.
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Seller
represents and warrants to Buyer as follows:
(a) Ownership
of Capital Stock and Warrant of Corporation.
Seller
is the record and beneficial owner of the Shares and the Warrant. Seller has
good and marketable title to the Shares and Warrant, and the Shares, subject
only to the removal of the Legend, and Warrant shall be free and clear of any
and all liens, claims, encumbrances, restrictions on transfer, taxes, options,
warrants, purchase rights, commitments, equities, claims and demands. Seller
is
not a party to any option, warrant, purchase right, or other contract or
commitment (other than this Agreement) that could require Seller to sell,
transfer, or otherwise dispose of the Shares and the Warrant. Seller is not
a
party to any voting trust, proxy or other agreement or understanding with
respect to the voting of any capital stock of the Corporation.
(b) Power
to Execute Agreement.
Seller
has the corporate power and authority to execute, deliver, and perform this
Agreement, and this Agreement is the legal and binding obligation of Seller,
enforceable against it in accordance with its terms.
(c) Agreement
Not in Breach of Other Instruments.
The
execution and delivery of this Agreement, the consummation of the transactions
hereby contemplated, and the fulfillment of the terms hereof, will not result
in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under, any agreement
or other instrument of any description to which Seller is a party or by which
Seller is bound, or any judgment, decree, order, or award of any court,
governmental body, or arbitrator, or any law, rule, or regulation applicable
to
Seller.
(d) Ability
to Bear Risk; Business and Financial Knowledge and Experience.
Seller
(i) can bear the risk associated with the sale of the Shares and the Warrant,
including the impact such sale may have on the relationship (business and
otherwise) between the Seller and the Corporation, and (ii) has sufficient
knowledge and experience in business and financial matters as to be capable
of
evaluating the merits and risks of Seller’s sale of the Shares and the
Warrant.
(e) Knowledge
Respecting Corporation. Seller
(i) knows or has had the opportunity to acquire all information concerning
the
business, affairs, financial condition, plans, and prospects of the Corporation
that Seller deems relevant to make a fully informed decision respecting its
sale
of the Shares and the Warrant; (ii) has been encouraged and has had the
opportunity to rely upon the advice of Seller’s legal counsel and accountants
and other advisers with respect to the sale of the Shares and the Warrant;
(iii)
has had the opportunity to ask such questions and receive such answers and
information respecting, among other things, the business, affairs, financial
condition, plans, and prospects of the Corporation; (iv) acknowledges that
Buyer
may have material non-public information concerning the Corporation (the
“Information”) and that the Information may impact the value of the Shares and
the Warrant; (v) has instructed the Buyer not to provide it with Information;
and (vi) is not currently, and has not for more than the past three months,
been
an Affiliate (as such term is used by Rule 144 promulgated under the Securities
Act of 1933, as amended), of the Corporation.
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(f) Absence
of Representations and Warranties. Seller
confirms that neither Buyer nor anyone purportedly acting on behalf of Buyer
has
made any representations, warranties, agreements, or statements respecting
the
business, affairs, financial condition, plans, or prospects of the Corporation
nor has Seller relied on any representations, warranties, agreements, or
statements in the belief that they were made on behalf of any of the foregoing
nor has Seller relied on the absence of any such representations, warranties,
agreements, or statements in reaching Seller’s decision to sell the Shares and
the Warrant.
| 4. |
Representations
and Warranties of Buyer.
|
Buyer
represents and warrants to Seller as follows:
(a) Power
to Execute Agreement. Buyer
has
the power and authority to execute, deliver, and perform this Agreement, and
this Agreement is the legal and binding obligation of Buyer, enforceable against
him in accordance with its terms.
(b) Agreement
Not in Breach of Other Instruments.
The
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, and the fulfillment of the terms hereof, will not result
in
the breach of any term or provision of, or constitute a default under, or
conflict with, or cause the acceleration of any obligation under, any agreement
or other instrument of any description to which Buyer is a party or by which
Buyer is bound, or any judgment, decree, order, or award of any court,
governmental body, or arbitrator or any law, rule, or regulation applicable
to
Buyer.
| 5. |
Further
Representations and Warranties of
Buyer.
|
Buyer
further represents and warrants to Seller as follows:
(a) Ability
to Bear Risk; Business and Financial Knowledge and
Experience.
Buyer
(i)
can bear the economic risk of the purchase of the Shares and the Warrant,
including the complete loss of Buyer’s investment, and (ii) has sufficient
knowledge and experience in business and financial matters as to be capable
of
evaluating the merits and risks of Buyer’s purchase of the Shares and the
Warrant.
(b) Knowledge
Respecting Corporation.
Buyer
(i)
knows or has had the opportunity to acquire all information concerning the
business, affairs, financial condition, plans, and prospects of the Corporation
that Buyer deems relevant to make a fully informed decision respecting the
purchase of the Shares and the Warrant; (ii) has been encouraged and has had
the
opportunity to rely upon the advice of Buyer’s legal counsel and accountants and
other advisers with respect to the purchase of the Shares and the Warrant;
and
(iii) has had the opportunity to ask such questions and receive such answers
and
information respecting, among other things, the business, affairs, financial
condition, plans, and prospects of the Corporation.
(c) Absence
of Representations and Warranties.
Buyer
confirms that neither Seller nor anyone purportedly acting on behalf of Seller
has made any representations, warranties, agreements, or statements respecting
the business, affairs, financial condition, plans, or prospects of the
Corporation nor has Buyer relied on any representations, warranties, agreements,
or statements in the belief that they were made on behalf of any of the
foregoing nor has Buyer relied on the absence of any such representations,
warranties, agreements, or statements in reaching Buyer’s decision to purchase
the Shares and the Warrant.
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(d) No
Distribution.
Except
as
permitted under applicable securities laws, Buyer is acquiring the Shares and
the Warrant for Buyer’s own account without a view to public distribution or
resale, and Buyer has no contract, undertaking, agreement, or arrangement to
transfer, sell, or otherwise dispose of any Shares, the Warrant or any interest
therein to any other person.
| 6. |
Indemnification.
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(a) Except
as
otherwise provided or contemplated herein, Buyer hereby indemnifies and holds
Seller and its officers, directors and employees harmless from and against
any
losses, claims, damages, costs, liabilities, judgments, penalties or expenses
of
any kind whatsoever, including without limitation attorneys’ fees, directly or
indirectly arising out of any breach or falsity of any covenant, representation,
warranty, obligation or agreement of Buyer set forth in Sections 4 or 5 of
this
Agreement.
(b) Seller
hereby indemnifies and holds Buyer harmless from and against any losses, claims,
damages, costs, liabilities, judgments, penalties or expenses of any kind
whatsoever, including without limitation attorneys’ fees, directly or indirectly
arising out of (i) breach of Seller’s representation in Section 3(e)(vi) of this
Agreement or (ii) Seller’s failure to timely remove the Legends.
| 7. |
Appointment
of Proxy.
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Seller
hereby appoints ▇▇▇▇▇ ▇▇▇▇▇▇▇ as proxy and attorney-in-fact, with full power
of
substitution, on behalf of and in the name of Seller, to represent Seller at
the
Annual Meeting of Stockholders of the Corporation, to be held at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ on Monday, November
17,
2008 at 10:00 A.M., Pacific Time, and at any adjournment or adjournments thereof
(the “Meeting”), hereby revoking any proxies heretofore given, and to vote, in
his discretion, upon such matters as may come before the meeting. This proxy
is
an essential provision of this Agreement, shall be deemed coupled with an
interest, and may not be revoked. In addition to the foregoing, Seller hereby
agrees to vote the Shares as directed by Buyer and to execute promptly such
other form of proxy with respect to the Shares as may be requested by
Buyer.
8. Further
Assurances;
Waiver of Claims; Covenant not to ▇▇▇ or Seek
Indemnification.
(a) Seller
and Buyer shall execute and deliver all such other instruments and take all
such
other actions as any party may reasonably request from time to time in order
to
effectuate the transactions provided for herein. The parties shall cooperate
with each other and with their respective counsel and accountants in connection
with any steps to be taken as a part of their respective obligations under
this
Agreement.
(b) Notwithstanding
anything to the contrary herein (including Section 6 (a) hereof), Seller hereby
(i) waives any and all claims (whether at law, in equity, for indemnification,
on statutory grounds or otherwise) it has or could have with respect to, or
failure to provide, the Information or Buyer’s breach or alleged breach of any
federal or state securities laws or regulations (collectively, the “Laws and
Regulations”) and (ii) covenants and agrees that it will not assert any claims
(whether at law, in equity, for indemnification, on statutory grounds or
otherwise) or commence litigation against Buyer with respect to, or failure
to
provide, the Information or Buyer’s breach or alleged breach of the Laws and
Regulations; provided,
however,
that
the foregoing shall not preclude the Seller from asserting claims against the
Buyer, but only to the extent such claim arises directly out of the Buyer’s
breach of Sections 4 or 5 of this Agreement.
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4 of 7
9. Assignment
of Rights. To
the
extent assignable, Seller hereby assigns all its right, title and interest
in
and to an agreement (and all related rights and benefits with respect thereto)
between the Corporation and Seller executed December 29, 2005 (the “Letter
Agreement”). Buyer acknowledges that Seller has made no representation or
warranty with respect to (i)
Seller’s ability to assign the Letter Agreement (and all related rights and
benefits with respect thereto) to Buyer, and (ii) the
enforceability of the Letter Agreement against the Corporation and Buyer hereby
covenants and agrees not to ▇▇▇ Seller with respect to such assignment or the
Letter Agreement, except to the limited extent it is necessary for Buyer to
include Seller in any such action so that it may enforce the Letter Agreement
against the Corporation;
provided that in no event shall Seller be liable to Buyer for any claim, suit
or
action with respect to the Letter Agreement and Buyer shall indemnify
and hold Seller and its officers, directors and employees harmless from and
against any losses, claims, damages, costs, liabilities, judgments, penalties
or
expenses of any kind whatsoever, including without limitation attorneys’ fees,
directly or indirectly arising out of any claim, suit or action with respect
to
the assignment of the Letter Agreement
(and all
related rights and benefits with respect thereto) to Buyer, including without
limitation, with respect to any claim, counterclaim, or third party claim
brought by Buyer or resulting from Buyer’s inclusion of Seller in any action in
(ii) above.
10. General.
(a) Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors, and assigns,
except that no party may assign or transfer such party’s rights or obligations
under this Agreement without the prior written consent of the other party
hereto.
(b) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, inducements, and conditions express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. This Agreement may not be modified or amended other
than
by an agreement in writing.
(c) Controlling
Law.
This
Agreement and all questions relating to its validity, interpretation,
performance and inducement, shall be governed by and construed, interpreted,
and
enforced in accordance with the laws of the state of Delaware, notwithstanding
any Delaware or other conflict-of-law provisions to the contrary.
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5 of 7
(d) Provisions
Separable.
The
provisions of this Agreement are independent of and separable from each other,
and no provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other or others of them may be
invalid or unenforceable in whole or in part.
(e) Indulgences
Not Waivers.
Neither
the failure nor any delay on the part of any party to exercise any right,
remedy, power, or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power,
or privilege preclude any other or further exercise of the same or of any other
right, remedy, power, or privilege, nor shall any waiver of any right, remedy,
power or privilege with respect to any occurrence be construed as a waiver
of
such right, remedy, power or privilege with respect to any other occurrence.
No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
(f) Costs
and Expenses.
Each
party hereto shall bear such party’s own costs, including legal and accounting
fees, incurred in connection with the negotiation and preparation of this
Agreement and all matters incident thereto.
(g) Titles
Not to Affect Interpretation.
The
titles of paragraphs and subparagraphs contained in this Agreement are for
convenience of reference only, and they neither form a part of this Agreement
nor are they to be used in the construction or interpretation
hereof.
(h) Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original as against any party whose signature appears thereon,
and all of which shall together constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(i) Gender.
Words
used herein, regardless of the number and gender specifically used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the context
requires.
(j) Number
of Days.
In
computing the number of days for purposes of this Agreement, all days shall
be
counted, including Saturdays, Sundays, and holidays; provided, however, that
if
the final day of any period falls on a Saturday, Sunday, or holiday, then the
final day shall be deemed to be the next day which is not a Saturday, Sunday,
or
holiday.
(k) Attorneys’
Fees. If
any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements, in addition to any other relief to
which the party may be entitled.
(l) No
Rescission Rights. Neither
party may terminate or rescind this Agreement. In the event of any claim,
action, lawsuit or the like by either party, such party shall be limited to
a
remedy at law for damages, if any, and shall not have the right to terminate
this Agreement or to obtain any other equitable relief, other than specific
performance of this Agreement or the provisions hereof.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
Buyer:
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
Seller:
SHUFFLE
MASTER, INC.
By:
/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇
Chief
Executive Officer
Chairman
of the Board
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