STOCK PURCHASE AGREEMENT Dated as of March 4, 2008 among BROADPOINT SECURITIES GROUP, INC., MAST CREDIT OPPORTUNITIES I MASTER FUND LIMITED, MATLINPATTERSON FA ACQUISITION LLC and THE INDIVIDUAL INVESTORS LISTED ON THE SIGNATURE PAGES
EXHIBIT
2
EXECUTION
COPY
Dated as
of March 4, 2008
among
MAST
CREDIT OPPORTUNITIES I MASTER FUND LIMITED,
MATLINPATTERSON
FA ACQUISITION LLC
and
THE
INDIVIDUAL INVESTORS LISTED ON THE SIGNATURE PAGES
TABLE OF
CONTENTS
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ARTICLE
I DEFINITIONS AND INTERPRETATION
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1
|
|
|
Section
1.1
|
Definitions.
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1
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Section
1.2
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Interpretation.
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1
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ARTICLE
II ISSUANCE AND SALE OF PURCHASED SHARES
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2
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|
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Section
2.1
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Issuance
and Sale of Stock.
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2
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Section
2.2
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The
Closing.
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2
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Section
2.3
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Investor
Deliveries at the Closing.
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2
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Section
2.4
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Company
Deliveries at the Closing.
|
3
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ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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3
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|
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Section
3.1
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Organization.
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3
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Section
3.2
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Capitalization.
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4
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Section
3.3
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Authorization;
Execution and Enforceability.
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5
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Section
3.4
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Validity
of Purchased Shares.
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5
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Section
3.5
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No
Conflicts; Consents and Approvals.
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5
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Section
3.6
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SEC
Reports; Financial Statements.
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6
|
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Section
3.7
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▇▇▇▇▇▇▇▇-▇▇▇▇▇;
Disclosure and Internal Controls.
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7
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Section
3.8
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Absence
of Certain Changes.
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7
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Section
3.9
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Litigation.
|
8
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|
Section
3.10
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Intellectual
Property Rights.
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8
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Section
3.11
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Exchange
Listing.
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9
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Section
3.12
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Tax
Matters.
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9
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|
Section
3.13
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Title
to Assets.
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9
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Section
3.14
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Insurance.
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9
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|
Section
3.15
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Permits.
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9
|
|
Section
3.16
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Labor
Matters.
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11
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Section
3.17
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Compliance.
|
11
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|
Section
3.18
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Transactions
with Affiliates.
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11
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Section
3.19
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Investment
Company
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11
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Section
3.20
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Corrupt
Practices.
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12
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Section
3.21
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Application
of Takeover Protections.
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12
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Section
3.22
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Securities
Law Compliance.
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13
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Section
3.23
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No
Brokers.
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13
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ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
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13
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|
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Section
4.1
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Organization,
Standing and Power.
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13
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Section
4.2
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Authorization;
Execution and Enforceability.
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13
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|
Section
4.3
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No
Conflict; Consents and Approvals.
|
14
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|
Section
4.4
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Purchase
Entirely for Own Account.
|
14
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Section
4.5
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Investment
Experience.
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14
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|
Section
4.6
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Disclosure
of Information.
|
14
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i
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Section
4.7
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Restricted
Securities.
|
15
|
|
Section
4.8
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Legends.
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15
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Section
4.9
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Accredited
Investor.
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16
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Section
4.10
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No
Puts or Short Sales.
|
16
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Section
4.11
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Availability
of Funds.
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16
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Section
4.12
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No
Brokers.
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16
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Section
4.13
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Tax
Matters.
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16
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ARTICLE
V COVENANTS
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16
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Section
5.1
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Listing.
|
17
|
|
Section
5.2
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Defense
of Certain Actions.
|
17
|
|
Section
5.3
|
Contractual
Consents and Governmental Approvals.
|
17
|
|
Section
5.4
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Use
of Proceeds.
|
18
|
|
Section
5.5
|
Restrictions
on Transferability
|
18
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|
Section
5.6
|
Current
Public Information.
|
19
|
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ARTICLE
VI CONDITIONS
|
19
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|
|
Section
6.1
|
Conditions
to the Company’s Obligations.
|
19
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|
Section
6.2
|
Conditions
to the Investors’ Obligations.
|
20
|
|
ARTICLE
VII FURTHER AGREEMENTS
|
20
|
|
|
Section
7.1
|
Public
Announcements.
|
21
|
|
Section
7.2
|
Fees
and Expenses.
|
21
|
|
Section
7.3
|
Independent
Nature of Investors Obligations.
|
22
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ARTICLE
VIII GENERAL
|
22
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|
|
Section
8.1
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Termination.
|
22
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|
Section
8.2
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Notice.
|
23
|
|
Section
8.3
|
Complete
Agreement; No Third-Party Beneficiaries.
|
24
|
|
Section
8.4
|
Survival.
|
24
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|
Section
8.5
|
Governing
Law.
|
25
|
|
Section
8.6
|
No
Assignment.
|
25
|
|
Section
8.7
|
Counterparts.
|
25
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|
Section
8.8
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Remedies;
Waiver.
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25
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|
Section
8.9
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Severability.
|
25
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|
Section
8.10
|
Amendment;
Waiver.
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26
|
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Section
8.11
|
Confidentiality.
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26
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ii
STOCK
PURCHASE AGREEMENT (this “Agreement”), dated as
of March 4, 2008, among BROADPOINT SECURITIES GROUP, INC. a New York
corporation (the “Company”), MAST
CREDIT OPPORTUNITIES I MASTER FUND LIMITED, a Cayman Islands corporation (the
“Mast
Investor”), MATLINPATTERSON FA ACQUISITION LLC, a Delaware limited
liability company (the “MatlinPatterson
Investor” and, together with the Mast Investor, the “Fund Investors”), and
the individuals listed as Individual Investors on the signature pages hereto
(the “Individual
Investors” and, together with the Fund Investors, the “Investors”),
WITNESSETH:
WHEREAS
the Company wishes to issue and sell to the Investors, and the Investors wish to
purchase from the Company, the Purchased Shares (and related Rights) (each as
defined below, upon the terms and subject to the conditions set forth
herein;
NOW,
THEREFORE, in consideration of these premises and the representations,
warranties, covenants and agreements herein set forth, the parties agree as
follows:
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1 Definitions.
The
capitalized terms that are defined in Exhibit A are used
herein with the meanings set forth therein.
Section
1.2 Interpretation.
(a) Headings. The
headings to the Articles, Sections and Subsections of this Agreement or any
Exhibit to this Agreement are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement.
(b) Usage. In
this Agreement, unless the context requires otherwise: (i) the
singular number includes the plural number and vice versa; (ii) reference to any
gender includes each other gender; (iii) the Exhibits to this Agreement are
hereby incorporated into, and shall be deemed to be a part of, this Agreement;
(iv) the terms “hereunder”, “hereof”, “hereto” and words of similar import shall
be deemed references to this Agreement as a whole and not to any particular
section or other provision hereof; (v) the words “include”, “includes” and
“including” shall be deemed to be followed by the words “without limitation”;
(vi) a reference to any Article, Section, Subsection or Exhibit shall be deemed
to refer to the corresponding Article, Section, Subsection, or Exhibit of this
Agreement and (vii) a reference to any Schedule shall be deemed to refer to the
corresponding Schedule to the Company Disclosure Letter.
ARTICLE
II
ISSUANCE
AND SALE OF PURCHASED SHARES
Section
2.1 Issuance and Sale of
Stock.
Pursuant to this Agreement, the Company
is selling an aggregate of up to 11,579,588 shares of Common
Stock. At the Closing, the Company shall issue and sell, and each
Investor shall purchase, the number of shares of Common Stock indicated opposite
such Investor’s name on Exhibit B
(collectively, the “Purchased Shares”),
together with the related Rights, all on the terms set forth herein and free and
clear of any Liens. At the Closing, each Investor shall pay the
Company, as consideration for the Purchased Shares issued to such Investor, the
purchase price indicated opposite such Investor’s name on Exhibit B (such
Investor’s “Purchase
Price”), representing a per share purchase price of $1.70 (the “Share
Price”). At the option of the Fund Investors, funds paid at
the Closing in satisfaction of such Fund Investor’s Purchase Price may be
adjusted for unpaid Reimbursable Expenses in accordance with Section
7.2.
Section
2.2 The
Closing.
(a) The
closing of the issuance and sale of the Purchased Shares (the “Closing”) and all
related actions contemplated by this Agreement to occur at the Closing shall
take place in the offices of Sidley Austin LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, at 10:00 a.m. local time, on a date to be specified by the parties, which
shall be no later than the second Business Day following the day on which the
last of the conditions set forth in Article IV (other than those conditions
required to be fulfilled at the Closing) shall have been fulfilled or waived, or
at such other time and place as the Company and the Investors may
agree. At the Closing, the Investors and the Company shall make
certain deliveries, as specified in Sections 2.3 and 2.4, respectively, and all
such deliveries, regardless of chronological sequence, shall be deemed to occur
contemporaneously and simultaneously on the occurrence of the last delivery and
none of such deliveries shall be effective until the last of the same has
occurred.
Section
2.3 Investor Deliveries at the
Closing. At the Closing:
(a) Each
Investor shall pay to the Company an amount in same-day funds equal to such
Investor’s Purchase Price by wire transfer to a bank account designated in
writing by the Company prior to the Closing;
(b) The
MatlinPatterson Investor shall deliver to the Company a duly-executed
counterpart of the MatlinPatterson Registration Rights Amendment attached hereto
as Exhibit
E;
(c) The
Mast Investor shall deliver to the Company a duly executed counterpart of the
New Registration Rights Agreement attached hereto as Exhibit
F;
(d) The
Investors shall deliver to the Company a duly completed Accredited Investor
Questionnaire attached hereto as Exhibit
G.
2
(e) The
applicable Investors shall deliver to the Company each of the other certificates
and documents listed in Part I of Exhibit C.
Section
2.4 Company Deliveries at the
Closing. At the Closing:
(a) The
Company shall deliver to each Investor a certificate or certificates (in
denominations specified by such Investor) representing the Purchased Shares to
be issued to such Investor, registered in such Investor’s name; provided, however, that upon
request of any such Investor, the Company will instruct the Company’s transfer
agent to deliver the Purchased Shares electronically by crediting such
Investor’s account, or the account of such Investor’s prime broker, with the
Depository Trust Company;
(b) The
Company shall deliver to the MatlinPatterson Investor a duly executed
counterpart of the MatlinPatterson Registration Rights Amendment;
(c) The
Company shall deliver to the Mast Investor an executed counterpart of the New
Registration Rights Agreement;
(d) The
Company shall deliver to the Investors a legal opinion, dated the Closing Date,
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP substantially to the effect set forth in Exhibit D;
and
(e) The
Company shall deliver to the applicable Investors each of the additional
certificates and documents listed in Part II of Exhibit C.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to each Investor, except in each case as
specifically (i) set forth in a Schedule to the Company Disclosure Letter
furnished to each Investor specifically identifying the relevant Section hereof,
and (ii) with the exception of the representations and warranties in Sections
3.1, 3.2, 3.3 and 3.4, as qualified by disclosures in the Company’s SEC
Reports. These representations and warranties, and the exceptions
referenced therein, are current as of the date of this Agreement except to the
extent that a representation or warranty is current only as of an earlier
date. Where certain of the representations and warranties below are
specifically qualified by disclosures in the Company’s SEC Reports, such
qualification excludes any disclosure therein that constitutes a “risk factor”
or a “forward looking statement” under the heading “Forward Looking Statements”
in any such SEC Report (provided, however, that the
exclusion of any such “risk factor” or “forward looking statement” shall not
limit any of the exceptions set forth in clauses (a) through (l) in the
definition of “Company Material Adverse Effect”.
Section
3.1 Organization.
The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. True and correct copies of the certificate of incorporation
and by-laws of the Company, as amended through the date hereof, have been
provided to the Investors. The Company has all requisite corporate
power and authority to carry on the businesses in which it is engaged (and as
described in the SEC Reports) and to own or
3
lease its
properties. The Company and each of its Subsidiaries are duly
qualified to conduct business as a foreign corporation and are in good standing
under the laws of each jurisdiction in which the nature of the businesses of the
Company and its Subsidiaries or the ownership or leasing of their properties
requires such qualification, other than where the failure to be so qualified
would not reasonably be expected, individually or in the aggregate, to have a
Company Material Adverse Effect.
Section
3.2 Capitalization.
(a) The
authorized capital stock of the Company consists of 100,000,000 shares of Common
Stock and 1,500,000 shares of Preferred Stock. No shares of Preferred
Stock are currently outstanding and, other than the Company’s Series A Junior
Participating Preferred Stock referred to in the Rights Agreement, no series of
Preferred Stock has been designated or reserved for issuance. Of the
shares of Common Stock currently authorized: (i) 57,898,253 shares
are currently outstanding (of which 87,882 are Restricted Stock), (ii) 230,600
shares are currently held in a rabbi trust to hedge certain deferred
compensation obligations, (iii) 511,095 shares are reserved for issuance upon
the exercise of the Lender Warrants, (iv) 4,785,962 shares are reserved for
issuance upon the exercise of Employee Stock Options, (v) 7,542,050 shares are
reserved for the issuance of Restricted Stock upon the exercise of RSU Awards
that are currently outstanding, (vi) 6,533,669 additional shares are reserved
for issuance pursuant to the Employee Stock Incentive Plans in respect of future
awards under such plans, of which 4,475,000 are subject to shareholder approval,
(vii) 6,200,000 shares are reserved for issuance, subject to shareholder
approval, under the 2007 Incentive Compensation Plan in connection with the Bank
of New York transaction, and (viii) no other shares are reserved for issuance
for any purpose.
(b) Except
as set forth in Schedule 3.2(b),
there are no outstanding Convertible Securities. Except as disclosed
on Schedule
3.2(b), the issuance of the Purchased Shares as contemplated herein will
not cause the number of shares of Common Stock issuable pursuant to any
outstanding Convertible Securities to increase as a result of any antidilution
provisions relating thereto.
(c) Except
as disclosed in Schedule 3.2(c),
there are no (i) outstanding options, warrants or other rights exercisable for
the purchase of any shares of Capital Stock or Convertible Securities (“Stock Purchase
Rights”), (ii) stock appreciation rights, performance stock awards or
other employee incentive awards the value of which is determined by reference to
the value of the Common Stock or (iii) other agreements or commitments
obligating the Company or any of its Subsidiaries to issue, sell, repurchase,
redeem or otherwise acquire any shares of Capital Stock, Convertible Securities,
Stock Purchase Rights or any securities of any Subsidiary. Except as
set forth in Schedule
3.2(c), the issuance of the Purchased Shares as contemplated herein will
not cause the number of shares of Common Stock issuable pursuant to any
outstanding Stock Purchase Rights to increase as a result of any antidilution
provisions relating thereto.
(d) There
are no authorized or outstanding bonds, debentures, notes or other obligations
of the Company the holders of which have the right to vote with the holders of
Common Stock on any matter. The Company does not have in effect any
dividend reinvestment plans or employee stock purchase plans.
4
(e) All
outstanding shares of Capital Stock (including any outstanding Restricted Stock)
have been duly authorized and validly issued and are fully-paid and
nonassessable and have been offered and issued without violation of any
preemptive rights of any Person or any applicable securities
laws. All outstanding Stock Purchase Rights have been issued without
violation of any applicable securities laws, and all shares of Common Stock
issued upon exercise thereof will have been, upon such issuance, duly authorized
and validly issued without violation of any preemptive rights of any Person and
will be fully-paid and nonassessable.
(f) Except
as disclosed on Schedule 3.2(f),
there are no voting trusts, proxies or other agreements to which the Company or,
to the Knowledge of the Company any of its officers or directors, is a party or
by which it is bound with respect to the voting of any shares of Capital Stock
affecting the voting of any shares of Capital Stock.
(g) Except
as disclosed on Schedule 3.2(g),
there are no agreements or arrangements under which the Company or any of its
Subsidiaries is obligated to register the sale of any of their securities under
the Securities Act.
Section
3.3 Authorization; Execution and
Enforceability.
(a) The
Company has all requisite corporate power and authority to execute, deliver and
perform this Agreement and the each of the other Transaction Agreements and to
consummate the Transactions. The execution, delivery and performance
of this Agreement and each of the other Transaction Agreements and the
consummation of the Transactions has been duly authorized by the Board and the
Audit Committee and no further corporate action on the part of the Company is
required in connection therewith.
(b) This
Agreement has been duly executed and delivered by the Company and constitutes,
and, upon execution and delivery thereof as contemplated herein, each of the
other Transaction Agreements will have been duly executed and delivered by the
Company and will constitute, a legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms.
Section
3.4 Validity of Purchased
Shares.
Upon issuance to each Investor as
contemplated herein, the Purchased Shares (including the attached Rights)
issuable to such Investor hereunder will have been duly authorized and validly
issued without violation of the preemptive rights of any Person and will be
fully-paid and nonassessable, free and clear of any Liens, taxes or
charges.
Section
3.5 No Conflicts; Consents and
Approvals.
(a) Neither
the execution, delivery or performance of this Agreement or any of the other
Transaction Agreements by the Company nor the consummation of any of the
Transactions will (a) conflict with or violate any provision of the certificate
of incorporation or by-laws of the Company or any Organizational Document of any
of the Subsidiaries; (b) result in a breach of, constitute (with or without due
notice or lapse of time or both) a default under, result in the acceleration of,
create in any party any right to accelerate, terminate, modify or cancel, or
5
require
any notice, consent or waiver under, any material Contractual Obligation or any
Requirement of Law material to the operation of the Company or any of the
Subsidiaries or any of their respective properties and assets; (c) result in the
imposition of any Lien upon any material properties or assets of the Company or
any of the Subsidiaries, which Lien would materially detract from the value or
materially interfere with the use of such properties or assets, (d) result in
the Company or any Subsidiary being required to redeem, repurchase or otherwise
acquire any outstanding equity or debt interests, securities or obligations in
the Company or any of the Subsidiaries or any options or other rights
exercisable for any of same or (e) cause the accelerated vesting of any Employee
Stock Options, Restricted Stock Awards or RSU Awards.
(b) Except
as set forth in Schedule 3.5(b),
neither the Company nor any of the Subsidiaries is required to obtain any
consent, authorization or approval of, or make any filing, notification or
registration with, any Governmental Authority or any self regulatory
organization in order for the Company to execute, deliver and perform this
Agreement and each of the other Transaction Agreements and to consummate the
Transactions (“Company
Approvals”).
(c) No
Contractual Consents are required to be obtained under any Contractual
Obligation applicable to the Company or any Subsidiary or, to the Knowledge of
the Company, any Associated Person thereof in connection with the execution,
delivery or performance of this Agreement or the Registration Rights Agreement
or the consummation of any of the Transactions which if not obtained would
reasonably be expected, individually or in the aggregate to have a Company
Material Adverse Effect (“Company Contractual
Consents”).
Section
3.6 SEC Reports; Financial
Statements.
(a) Except
as set forth in Schedule 3.6(a), the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it since December 31, 2006 with the SEC
pursuant to the reporting requirements of the Exchange Act (all the foregoing
filed prior to the date hereof and all exhibits included or incorporated by
reference therein and financial statements and schedules thereto and documents
included or incorporated by reference therein being sometimes hereinafter
collectively referred to as the “SEC
Reports”). As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Exchange Act
applicable to the SEC Reports, and none of the SEC Reports, at the time they
were filed with the SEC, 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.
(b) As
of their respective dates, except as set forth therein or in the notes thereto,
the financial statements contained in the SEC Reports and the related notes (the
“Financial
Statements”) complied as to form in all material respects with all
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto. The Financial Statements: (i) were
prepared in accordance with accounting principles generally accepted in the
United States (“GAAP”), consistently
applied during the periods involved (except (i) as may be otherwise indicated in
the notes thereto or (ii) in the case of unaudited interim statements, to the
extent that they may not include footnotes, may be condensed or summary
statements or may conform to the SEC’s rules and instructions for Reports on
Form
6
10-Q),
(ii) fairly present in all material respects the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal and recurring
year-end audit adjustments) and (iii) are in all material respects in accordance
with the books of account and records of the Company and its consolidated
subsidiaries (except as may be otherwise noted therein).
Section
3.7 ▇▇▇▇▇▇▇▇-▇▇▇▇▇; Disclosure
and Internal Controls.
Except as
disclosed on Schedule
3.7:
(a) The
Company is in compliance in all material respects with all of the provisions of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”) that
are applicable to it or any of the Subsidiaries.
(b) The
Company has established and maintains disclosure controls and procedures as
defined in Rule 13a-15 under the Exchange Act. Such disclosure
controls and procedures are designed to ensure that material information
relating to the Company and the Subsidiaries is made known to the Company’s
principal executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic reports
required to be filed under the Exchange Act are being prepared. Such
disclosure controls and procedures are effective in all material respects to
timely alert the Company’s principal executive officer and principal financial
officer to material information required to be included in the Company’s reports
required to be filed under Exchange Act.
(c) The
Company and its consolidated subsidiaries have established and maintained a
system of internal control over financial reporting (within the meaning of Rule
13a-15 under the Exchange Act) (“internal controls”). Such internal
controls are sufficient to provide reasonable assurance regarding the
reliability of the Company’s financial reporting and the preparation of the
Company’s financial statements for external purposes in accordance with
GAAP. The Company’s certifying officers have evaluated the
effectiveness of the Company’s internal controls as of the end of the period
covered by the most recently filed quarterly or annual periodic report under the
Exchange Act (the “Evaluation
Date”). The Company presented in its most recently filed
quarterly or annual periodic report under the Exchange Act the conclusions of
the certifying officers about the effectiveness of the internal controls and
procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no significant
changes in the Company’s internal controls over financial reporting (as defined
in Item 307(b) of Regulation S-K under the Exchange Act) or, to the Knowledge of
the Company, in other factors that could significantly affect such internal
controls.
Section
3.8 Absence of Certain
Changes.
Since December 31, 2006, (a) there has
not been any Company Material Adverse Effect or any changes, events or
developments that would reasonably be expected, individually or in the
aggregate, to have a Company Material Adverse Effect, and (b) the Company and
the Subsidiaries have conducted their respective businesses only in the ordinary
course and in conformity with past practice.
7
Section
3.9 Litigation.
Except as disclosed on Schedule 3.9, there
is no Action or Proceeding to which the Company or any of the Subsidiaries is a
party (either as a plaintiff or defendant) pending or, to the Knowledge of the
Company, threatened before any Governmental Authority, FINRA or self-regulatory
organization (i) that challenges the validity or propriety of any of the
Transactions or (ii) if determined adversely to the Company or any Subsidiary
would reasonably be expected, individually or in the aggregate, to have a
Company Material Adverse Effect. Except as would not reasonably be
expected, individually or in the aggregate, to have a Company Material Adverse
Effect, neither the Company nor any of the Subsidiaries, nor, to the Knowledge
of the Company, any of their respective officers, directors, employees or
Associated Persons, is or has been the subject of any Action or Proceeding
involving a claim of violation or liability under federal, state or foreign
securities or insurance laws or the rules, by-laws, or constitution of FINRA or
any self-regulatory organization, or a claim of breach of fiduciary duty
relating to the Company or any of the Subsidiaries or has been permanently or
temporarily enjoined by any order, judgment or decree of any Governmental
Authority, FINRA or self-regulatory organization from engaging in or continuing
to conduct any of the businesses of the Company or any
Subsidiary. Except as would not reasonably be expected, individually
or in the aggregate, to have a Company Material Adverse Effect, there has not
been, and to the Knowledge of the Company, there is not pending or contemplated,
any investigation by any Governmental Authority, FINRA or self-regulatory
organization involving the Company or any of the Subsidiaries or any officer,
director, employee or Associated Person thereof. The Company has not
received a stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Exchange Act or the
Securities Act and, to the Knowledge of the Company, the SEC has not issued any
such order. No
order, judgment or decree of any Governmental Authority, FINRA or
self-regulatory organization has been issued in any Action or Proceeding to
which the Company or any of the Subsidiaries is or was a party or, to the
Knowledge of the Company, in any other Action or Proceeding except as would not
reasonably be expected, individually or in the aggregate, to have a Company
Material Adverse Effect.
Section
3.10 Intellectual Property
Rights.
Except as would not reasonably be
expected, individually or in the aggregate, to have a Company Material Adverse
Effect, the Company and the Subsidiaries own or possess, or will be able to
obtain on reasonable terms, licenses or sufficient rights to use all patents,
patent applications, patent rights, inventions, know-how, trade secrets,
trademarks, trademark applications, service marks, service names, trade names
and copyrights necessary to enable them to conduct their businesses as currently
conducted (“Intellectual
Property”). Neither the Company nor any of the Subsidiaries
has infringed the intellectual property rights of third parties, and no third
party, to the Knowledge of the Company, is infringing the Intellectual Property,
in each case, where such infringement would reasonably be expected, individually
or in the aggregate, to result in a Company Material Adverse
Effect. There is no material claim or proceeding pending or, to the
Knowledge of the Company, threatened that challenges the right of the Company or
any of the Subsidiaries with respect to any of the Intellectual
Property.
8
Section
3.11 Exchange
Listing.
The Common Stock is listed on the
NASDAQ Global Market and, to the Knowledge of the Company, there are no
proceedings to revoke or suspend such listing. The Company is in
compliance with the requirements of the NASDAQ Global Market for continued
listing of the Common Stock thereon and any other NASDAQ Global Market listing
and maintenance requirements. Trading in the Common Stock has not
been suspended by the SEC or the NASDAQ Global Market. The
transactions contemplated by this Agreement and the Transaction Documents will
not require shareholder approval under NASDAQ Marketplace Rule
4350.
Section
3.12 Tax
Matters.
The Company and the Subsidiaries have
made or filed all federal, state and foreign income and all other Tax Returns
required by any jurisdiction to which they are subject (unless and only to the
extent that the Company or any of the Subsidiaries has set aside on its books
provisions reasonably adequate for the payment of all unpaid and unreported
Taxes) and have paid all Taxes that are material in amount, shown or determined
to be due on such Tax Returns, except those being contested in good faith and
have set aside on their books provisions reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. To the Knowledge of the Company there are no
unpaid Taxes in any material amount claimed to be due by any Taxing Authority,
and to the Knowledge of the Company there is no basis for any such
claim. Neither the Company nor any Subsidiary has executed a waiver
with respect to the statute of limitations relating to the assessment or
collection of any Tax. None of the Company's, or any of the
Subsidiaries’, Tax Returns is presently being audited by any Taxing
Authority.
Section
3.13 Title to Assets.
The
Company and the Subsidiaries have good and marketable title in and to all
property owned by them and that is material to their businesses, 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 them. Any property and facilities held under lease by
the Company and the Subsidiaries are held under valid, subsisting and
enforceable leases concerning which the Company and the Subsidiaries are in
material compliance.
Section
3.14 Insurance.
The Company and the Subsidiaries
maintain in full force and effect insurance coverage that is customary for
comparably situated companies for the business being conducted and properties
owned or leased by the Company and the Subsidiaries, and the Company reasonably
believes such insurance coverage provides reasonable, prudent and customary
coverage against all liabilities, claims and risks against which it is customary
for comparably situated companies to insure.
Section
3.15 Permits.
9
(a) The
Company and its Subsidiaries and, to the Knowledge of the Company, their
respective officers, directors, employees, and Associated Persons hold all
licenses, permits, certificates, franchises, ordinances, registrations,
qualifications, or other rights, privileges, applications and authorizations
filed with, granted or issued by, or entered by any Governmental Authority,
FINRA or self-regulatory organization that are required for the conduct of the
businesses of the Company and the Subsidiaries as currently being conducted,
each as amended through the date hereof (collectively, the "Company Permits"),
other than such licenses, permits, certificates, franchises, ordinances,
registrations, qualifications, or other rights, privileges, applications and
authorizations the absence of which would not reasonably be expected,
individually or in the aggregate to have a Company Material Adverse
Effect.
(b) The
Company Permits are in full force and effect and have not been pledged or
otherwise encumbered, assigned, suspended, modified, conditioned, or restricted
in any material respect, canceled or revoked, and the Company and each of the
Subsidiaries, and, to the Knowledge of the Company, each of their respective
officers, directors, employees and Associated Persons thereof, have operated,
and are operating, in compliance with all terms thereof or any renewals thereof
applicable to them, and with all Requirements of Law which apply to the conduct
of the business thereof, and are in good standing in respect of all such Company
Permits, other than in any case where the failure to so comply or operate or to
be in good standing would not reasonably be expected, individually or in the
aggregate, to have a Company Material Adverse Effect. To the
Knowledge of the Company, no event has occurred, or notice received, with
respect to any of the Company Permits which allows or results in, or after
notice or lapse of time or both would result in, revocation, suspension, or
termination, modification, or the imposition of any condition or restriction,
thereof or would result in any other material impairment of the rights of the
holder of any such Company Permit other than as would not be reasonably
expected, individually or in the aggregate, to have a Company Material Adverse
Effect.
(c) Except
as disclosed on Schedule 3.15(c), to
the Knowledge of the Company, no Governmental Authority, FINRA or
self-regulatory organization has initiated any proceeding, investigation, or
examination into the business or operations of the Company or any Subsidiary, or
any officer, director, employee or Associated Persons thereof, or has instituted
any proceeding seeking to revoke, cancel or limit any Company Permit, and
neither the Company or any Subsidiary, nor any officer, director, employee or
Associated Person thereof has received any notice of any unresolved material
violation or exception by any Governmental Authority, FINRA or self-regulatory
organization with respect to any report or statement relating to any examination
of the Company or any Subsidiary, except in any case as would not reasonably be
expected, individually or in the aggregate, to have a Company Material Adverse
Effect. Without limiting the generality of the foregoing, neither the
Company nor any Subsidiary nor, to the Knowledge of the Company, any of their
respective officers, directors, employees, or Associated Persons or persons
performing similar duties has been enjoined, indicted, convicted or made the
subject of a disciplinary proceeding, censure, consent decree, cease and desist
or administrative order on account of any violation of the Exchange Act, the
Commodity Exchange Act, the Investment Company Act of 1940, the Investment
Advisers Act of 1940, state securities law or applicable foreign law or
regulation.
10
(d) Except
as disclosed on Schedule 3.15(d),
neither the Company or any Subsidiary, nor, to the Knowledge of the Company, any
officer, director, employee or Associated Person thereof is a party or subject
to any agreement, consent, decree or order or other understanding or arrangement
with, or any directive of any Government Authority, FINRA or self-regulatory
organization which imposes any material restrictions on or otherwise affects in
any material way the conduct of any of the business of the Company and its
Subsidiaries.
Section
3.16 Labor
Matters.
There are no collective bargaining
agreements to which the Company or any of the Subsidiaries is a
party. Except as would not be reasonably expected, individually or in
the aggregate, to have a Company Material Adverse Effect, the Company and each
Subsidiary are in compliance with all Requirements of Law respecting employment
and employment practices, terms and conditions of employment and wages and
hours.
Section
3.17 Compliance.
The Company and the Subsidiaries are
not: (i) in violation of any of their respective Organizational Documents, (ii)
in default under or in violation of (and, to the Knowledge of the Company, 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 the Subsidiaries under),
nor has the Company or the Subsidiaries received notice of a claim that it is in
default under or that it is in violation of, any Company Contract 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), (iii) in violation of any order of any
court, arbitrator or Governmental Authority, or (iv) in violation of any
applicable Requirement of Law, and with respect to clauses (ii), (iii) or (iv)
above, other than where such violation or default would not reasonably be
expected, individually or in the aggregate, to have a Company Material Adverse
Effect. The Company and each of its Subsidiaries and the
conduct and operation of their respective businesses is and has been in material
compliance with each Requirement of Law that (a) affects or relates to this
Agreement or any of the other Transaction Agreements or any of the Transactions
or (b) is applicable to the Company or its Subsidiaries or their respective
businesses, other than where the failure to be or to have been in compliance
would not reasonably be expected, individually or in the aggregate, to have a
Company Material Adverse Effect.
Section
3.18 Transactions with
Affiliates.
Except as disclosed on Schedule 3.18, and
other than the Transactions, no transactions, or series of related transactions,
are currently proposed to which the Company or any of the Subsidiaries would be
a party that would be required to be disclosed under Item 404 of Regulation S-K
promulgated under the Securities Act.
Section
3.19 Investment
Company
11
The Company is not, and after giving
effect to the Transactions will not be, an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
Section
3.20 Corrupt
Practices.
Neither the Company nor any
Subsidiary, nor to the Knowledge of the Company any director, officer, employee,
agent or other Person acting on behalf of the Company or any Subsidiary has, in
the course of his or its actions for, or on behalf of the Company or any of the
Subsidiaries (i) used any corporate funds for any unlawful contribution gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employees from corporate funds; (iii) violated or is in
violation of in any material respect any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended, or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
Section
3.21 Application of Takeover
Protections.
(a) The
Board has taken all action necessary pursuant to Section 912 of the NYBCL prior
to the date hereof to approve for purposes of Section 912 the purchase of the
Purchased Shares by the Investors. Other than Section 912 of the
NYBCL, no state or foreign takeover or similar statute or regulation in any
jurisdiction in which the Company does business applies or purports to apply to
this Agreement or any of the Transactions.
(b) The
Company has taken all actions necessary under the Rights Agreement to cause the
Rights Agreement to be rendered inapplicable to this Agreement and the
Transactions for the Investors to be deemed not to be “Acquiring Persons” (as
defined in the Rights Agreement).
12
Section
3.22 Securities Law
Compliance.
Assuming the accuracy of the Investors’
representations and warranties contained in Article IV, the offer, sale and
issuance of the Purchased Shares hereunder is in compliance with Section 4(2) of
the Securities Act and is exempt from the registration and prospectus delivery
requirements of the Securities Act and all applicable state securities
laws. Neither the Company nor any agent of the Company has offered
the Purchased Shares by any form of general solicitation or general advertising,
including any advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over television or radio
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Except as stated in this
Agreement and to the Knowledge of the Company, the Company has not taken, nor
will it take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Purchased
Shares. The Company agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Securities Act) that would be integrated with the sale of the Purchased
Shares in a manner that would require the registration under the Securities Act
of the offer or sale to any of the Investors of the Shares.
Section
3.23 No
Brokers.
No broker, investment banker or other
Person is entitled to any broker’s, finder’s or other similar fee or commission
in connection with the execution and delivery of this Agreement or any of the
other Transaction Agreements or the consummation of any of the Transactions
based upon arrangements made by or on behalf of the Company, and the Company
shall indemnify and hold the Investors harmless against any claim for any such
fee or commission based on any such arrangements.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS
Each
Investor hereby represents and warrants to the Company severally and not jointly
as follows:
Section
4.1 Organization, Standing and
Power.
Such Investor (if a Business Entity) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its formation. Such Investor has the necessary power
and authority to execute, deliver and perform this Agreement and each of the
other Transaction Agreements to which it is a party.
Section
4.2 Authorization; Execution and
Enforceability.
The execution, delivery and performance
by such Investor (if a Business Entity) of this Agreement and each of the other
Transaction Agreements to which it is a party have been duly and validly
authorized by all necessary Business Entity action on its part. This
Agreement has been duly executed and delivered by such Investor and each other
Transaction Agreement to
13
which it
is a party, when executed and delivered as contemplated herein, will have been
duly executed and delivered by it, and this Agreement constitutes, and each such
other Transaction Agreement upon execution and delivery thereof by such Investor
will constitute, the legal, valid and binding obligations of such Investor,
enforceable against it in accordance with their respective terms.
Section
4.3 No Conflict; Consents and
Approvals.
(a) Neither
the execution, delivery or performance by such Investor of this Agreement or any
other Transaction Agreement to which such Investor is a party nor the
consummation of any of the Transactions will (i) conflict with or violate any
provision of any Organizational Document of such Investor (if a Business Entity)
or (ii) result in a breach of, constitute (with or without due notice or lapse
of time or both) a default under, result in the acceleration of, create in any
party any right to accelerate, terminate, modify or cancel, or require any
notice, consent or waiver under, any Contractual Obligation or any Requirement
of Law applicable to such Investor or any of its properties or assets other than
a breach, default, acceleration, right, notice, consent or waiver that is not
material.
(b) Such
Investor is not required to obtain any consent, authorization or approval of, or
make any filing or registration with, any Governmental Authority or any self
regulatory organization in order for such Investor to execute, deliver and
perform this Agreement and the other Transaction Agreements to which it is a
party and to consummate the Transactions (“Investors
Approvals”).
(c) No
material Contractual Consents are required to be obtained under any Contractual
Obligation applicable to such Investor in connection with the execution,
delivery or performance of this Agreement or any of the other Transaction
Agreements to which it is a party or the consummation of any of the
Transactions.
Section
4.4 Purchase Entirely for Own
Account.
The
Purchased Shares to be acquired by such Investor hereunder will be acquired for
the Investor’s own account, not as nominee or agent, and not with a view to the
resale or distribution of any part thereof in violation of the Securities Act,
and such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same in violation of the
Securities Act. Such Investor does not have any agreement or
understanding, whether or not legally binding, direct or indirect, with any
other Person to sell or otherwise distribute the Purchased Shares to be issued
to it hereunder.
Section
4.5 Investment
Experience.
Such Investor acknowledges that it can
bear the economic risk and complete loss of its investment in the Purchased
Shares to be purchased by it and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of the
investment contemplated hereby. Such Investor understands that the
purchase of the Purchased Shares involves substantial risk.
Section
4.6 Disclosure of
Information.
14
Such Investor has, in connection with
its decision to purchase the Purchased Shares to be issued to it, has had access
to the SEC Reports and the representations and warranties of the Company
contained herein. Such Investor is not purchasing the Purchased
Shares as a result of any advertisement, article, notice or other communication
regarding the Purchased Shares 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. In making its
decision to invest in the Purchased Shares, such Investor has relied upon the
independent investigations made by such Investor and by such Investor’s own
professional advisors. Such Investor and its advisors, if any, have
been given the opportunity to obtain information and to examine this Agreement
and certain other information regarding the Company and to ask questions of, and
to receive answers from the Company or Persons acting on the Company's behalf
concerning the Purchased Shares, the Company, and terms and conditions of this
investment, and to obtain any additional information to verify the accuracy of
any information previously furnished. All such questions have been
answered to such Investor’s full satisfaction. Such Investor or any
person acting on its behalf has not received from the Company any information
that may constitute material, non-public information, the confidentiality and
use of which is not covered by an Investor Confidentiality Agreement to which
such Investor is a party. The right of each Investor to rely fully
upon the representations and warranties of the Company contained in this
Agreement shall not limited by this Section 4.6 or any right of the Investors to
investigate the affairs of the Company or any knowledge of facts determined or
determinable by the Investors pursuant to such investigation or right of
investigation.
Section
4.7 Restricted
Securities.
Such Investor understands that the
Purchased Shares will be characterized as “restricted securities” under the
United States federal securities laws inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited
circumstances. Such Investor understands that no United States
federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Purchased Shares or
the fairness or suitability of the investment in the Purchased
Shares.
Section
4.8 Legends.
Such Investor understands that, except
as provided below and until such time as the resale of the Purchased Shares has
been registered under the Securities Act, certificates evidencing the Purchased
Shares shall bear the following legends:
(a) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, OFFERED FOR SALE, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION FROM COUNSEL IN A FORM
ACCEPTABLE TO THE COMPANY AND ITS LEGAL COUNSEL STATING THAT SUCH REGISTRATION
IS NOT REQUIRED.”
15
(b) If
required by the authorities of any state in connection with the issuance or sale
of the Purchased Shares, the legend required by such state
authority.
Section
4.9 Accredited
Investor.
Such
Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D,
as amended, under the Securities Act. Such Investor’s principal place
of business is located in the jurisdiction set forth opposite the name of such
Investor on Exhibit
B.
Section
4.10 No Puts or Short
Sales.
During the period of time beginning
ninety (90) days prior to the date of this Agreement and ending upon the Closing
Date, such Investor and its Affiliates have not entered, and will not enter,
into any "put equivalent position" as such term is defined in Rule 16a-1 under
the Exchange Act or short sale positions with respect to the Common Stock of the
Company.
Section
4.11 Availability of
Funds.
Such Investor has sufficient funds on
hand or currently drawable under applicable credit facilities or financing
commitments to pay the Purchase Price for the Purchased Shares to be issued to
it on the Closing Date.
Section
4.12 No
Brokers.
Except as heretofore been disclosed to
the Company by the Investor no broker, investment banker or other Person is
entitled to any broker’s, finder’s or other similar fee or commission in
connection with the execution an delivery of this Agreement or any of the other
Transaction Agreements or the consummation of any of the Transactions based upon
arrangements made by or on behalf of such Investor, and such Investor shall
indemnify and hold the Company harmless against any claim for any such fee or
commission based on any such arrangements.
Section
4.13 Tax
Matters.
With respect to tax considerations
involved in this investment, other than the representations and warranties of
the Company set forth in Section 3.12, such Investor is not relying on the
Company (or any agent or representative of the Company). Such
Investor has carefully considered and has, to the extent the Investor believes
such discussion necessary, discussed with the Investor's tax advisers the
suitability of an investment in the Purchased Shares for the Investor's
particular tax situation.
ARTICLE
V
COVENANTS
16
Section
5.1 Listing.
The Company shall use its reasonable
best efforts to maintain the Common Stock’s authorization for quotation on the
NASDAQ Global Market and to cause the Purchased Shares to be approved for
listing thereon on or prior to the Closing Date to the extent permitted under
the rules of the NASDSAQ Global Market. Neither the Company nor any
of the Subsidiaries shall take any action which would be reasonably expected to
result in the delisting or suspension of the Common Stock on the NASDAQ Global
Market and shall take all action reasonably necessary to maintain the listing of
the Common Stock on the NASDAQ Global Market, including without limitation,
exhausting all available remedies, appeal reviews and other similar mechanisms
and procedures provided for under the rules and regulations of the NASDAQ Global
Market to permit the continued listing of the Common Stock on the NASDAQ Global
Market. The Company shall pay all fees and expenses in connection
with satisfying its obligations under this Section 5.1.
Section
5.2 Defense of Certain
Actions.
(a) The
Company and the Investors shall each refrain from taking any action which would
render any representation or warranty contained in Article III or IV inaccurate
in any material respect as of the Closing Date. Each party shall
promptly notify the other of (i) any event or matter that would reasonably be
expected to cause any of its representations or warranties to be untrue in any
material respect or (ii) any action, suit or proceeding that shall be instituted
or threatened against such party to restrain, prohibit or otherwise challenge
the legality of any of the Transactions.
(b) The
Company and the Investors shall each use their respective reasonable best
efforts to cause each of the conditions precedent set forth in Article VI to be
satisfied as soon as practicable after the date hereof.
(c) The
Company and the Investors shall cooperate fully with each other and assist each
other in defending any lawsuits or other legal proceedings, whether judicial or
administrative, brought against either party challenging this Agreement or any
of the other Transaction Agreements or the consummation of the Transactions,
including seeking to have any stay or temporary restraining order entered by any
court or other Governmental Authority vacated or reversed.
17
Section
5.3 Contractual Consents and
Governmental Approvals.
(a) The
Company will act diligently and reasonably in attempting to obtain before the
Closing Date, and the Investors shall reasonably cooperate with the Company in
such efforts, any Company Contractual Consents in form and substance reasonably
satisfactory to the Investors, including, without limitation, the Mast Investor,
provided that
neither the Company nor the Investors shall have any obligation to offer or pay
any consideration in order to obtain any such Company Contractual Consents; and
provided, further, that the
Company shall not make any agreement or understanding affecting the Company or
any of the Subsidiaries, or any of their respective businesses, as a condition
for obtaining any such Company Contractual Consents except with the prior
written consent of the Investors, including, without limitation, the Mast
Investor.
(b) Between
the date hereof and the Closing Date, the Company and the Investors shall act
diligently and reasonably, and shall cooperate with each other, in making any
required filing, registration or notification with, and in attempting to obtain
any consent, authorization or approval required from, any Governmental
Authority, FINRA, any self regulatory organization, and stock exchange of which
the Company or any Subsidiary is a member in connection with the Transactions or
to otherwise satisfy the conditions set forth in Article VI; provided that the
Company shall not make any agreement or understanding affecting the Company or
any of the Subsidiaries, or any of their respective businesses, as a condition
for obtaining any such consents or waivers except with the prior written consent
of the Investors; provided, further that neither
the Company nor the Investors shall be obligated to (A) execute settlements,
undertakings, consent decrees, stipulations or other agreements, (B) sell,
divest, hold separate or otherwise convey any particular assets or categories of
assets or businesses of the Company or the Investors or (C) otherwise take or
commit to take actions that after the Closing Date would limit the freedom of
action of the Investors or the Company or its Subsidiaries with respect to, or
its or their ability to retain, one or more of its or their businesses, product
lines or assets, in each case as may be required in order to avoid the entry of,
or to effect the dissolution of, any injunction, temporary restraining order or
other order in any suit or proceeding which would otherwise have the effect of
preventing or materially delaying the Closing
Section
5.4 Use of
Proceeds.
The net proceeds received by the
Company from the issuance of the Purchased Shares shall be used to increase the
regulatory capital of the Company’s broker-dealer Subsidiaries and for other
corporate purposes.
Section
5.5 Restrictions on
Transferability
Each Investor agrees that it shall
not make any sale of the Purchased Shares except in accordance with this
Agreement. Each Investor acknowledges and agrees that the Purchased
Shares are not transferable on the books of the Company unless (a) such
Purchased Shares are sold pursuant to (i) a Registration Statement, (ii) Rule
144 under the Securities Act (“Rule 144”) or (iii) an exemption from
registration other than Rule 144 and (b) a certificate is submitted to the
Company’s transfer agent evidencing the Purchased Shares and accompanied by a
separate officer’s certificate: (i) executed by an officer of, or other
authorized person designated by, such Investor; and (ii) to the effect that the
Purchased Shares have been sold pursuant to (A) a Registration Statement, in
which case such Investor certifies that the requirement of delivering a current
prospectus has been complied with or will be complied with
18
in
connection with the sale, (B) Rule 144, in which case such Investor certifies
that it has complied with or will
comply with the requirements of Rule 144 or (C) pursuant to an exemption from
registration other than Rule 144, and in the case of (B) and (C) such Investor
must also provide the Company with an opinion of counsel, reasonably acceptable
to the Company, to the effect that the transaction is so exempt. Each
Investor hereby covenants with the Company not to make any sale of the Purchased
Shares pursuant to a Registration Statement without effectively causing the
prospectus delivery requirements under the Securities Act (to the extent
applicable) to be satisfied.
Section
5.6 Current Public
Information.
At all
times between the date of this Agreement and the first anniversary of the
Closing, so long as any of the Investors own any of the Purchased Shares, the
Company shall satisfy the current public information requirement of Rule 144(c)
of the Securities Act, and shall not terminate its status as an issuer required
to file reports under the Exchange Act.
ARTICLE
VI
CONDITIONS
Section
6.1 Conditions to the Company’s
Obligations.
The obligation of the Company to
consummate the Transactions shall be subject to the fulfillment (or waiver by
the Company) at or prior to the Closing of each of the following
conditions:
(a) No
Order. No court or other Governmental Authority having
jurisdiction over the Company or any of the Subsidiaries or the Investors shall
have instituted, enacted, issued, promulgated, enforced or entered any
Requirement of Law (whether temporary, preliminary or permanent) that is then in
effect and that (i) has the effect of making illegal or otherwise prohibiting or
invalidating consummation of any of the Transactions or any provision of this
Agreement or any of the other Transaction Agreements or (ii) seeks to restrain,
prohibit or invalidate the consummation of any of the Transactions or to
invalidate any provision of this Agreement or any of the other Transaction
Agreements.
(b) Governmental
Approvals. Each Company Approval and Investor Approval, if
any, shall have been obtained or made and shall be in full force and effect to
the extent that the failure to obtain or make such Company Approval or Investor
Approval (i) has the effect of making illegal or otherwise prohibiting or
invalidating consummation of any of the Transactions or any provision of this
Agreement or any of the other Transaction Agreements or (ii) could reasonably be
expected, individually or in the aggregate, to have a Company Material Adverse
Effect.
(c) Performance of
Obligations. The Investors shall have performed in all
material respects each of their respective covenants and agreements contained in
this Agreement required to be performed at or prior to the Closing.
19
(d) Representations and
Warranties. Each of the representations and warranties of the
Investors contained in this Agreement that is qualified as to materiality shall
be true and correct on and as of the Closing Date as if made on and as of such
date (other than representations and warranties which address matters only as of
a certain date, which shall be true and correct as of such certain date) and
each of the representations and warranties of the Investors that is not so
qualified shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date (other than representations and
warranties which address matters only as of a certain date, which shall be true
and correct in all material respects as of such certain date).
Section
6.2 Conditions to the Investors’
Obligations.
The obligation of each Investor to
consummate the Transactions shall be subject to the fulfillment (or waiver by
such Investor) at or prior to the Closing of each of the following
conditions:
(a) No
Order. No court or other Governmental Authority having
jurisdiction over the Company or any of the Subsidiaries or the Investors shall
have instituted, enacted, issued, promulgated, enforced or entered any
Requirement of Law (whether temporary, preliminary or permanent) that is then in
effect and that (i) has the effect of making illegal or otherwise prohibiting or
invalidating consummation of any of the Transactions or any provision of this
Agreement or any of the other Transaction Agreements or result or would result
in a Company Material Adverse Effect or (ii) seeks to restrain, prohibit or
invalidate the consummation of any of the Transactions or to invalidate any
provision of this Agreement or any of the other Transaction
Agreements.
(b) Governmental
Approvals. Each Company Approval and Investor Approval, if
any, shall have been obtained or made and shall be in full force and effect to
the extent that the failure to obtain or make such Company Approval or Investors
Approval (i) has the effect of making illegal or otherwise prohibiting or
invalidating consummation of any of the Transactions or any provision of this
Agreement or any of the other Transaction Agreements or (ii) would reasonably be
expected, individually or together with other Company Approvals or Investor
Approvals that have not been obtained or made, to have a Company Material
Adverse Effect.
(c) Contractual
Consents. Each Company Contractual Consent, if any, shall have
been obtained and shall be in full force and effect to the extent that the
failure to obtain such Company Contractual Consent would reasonably be expected,
individually or together with other Company Contractual Consents that have not
been obtained, to have a Company Material Adverse Effect.
(d) Performance of
Obligations. The Company shall have performed in all material
respects each of its respective covenants and agreements contained in this
Agreement and required to be performed at or prior to the Closing.
(e) Representations and
Warranties. Each of the representations and warranties of the
Company contained in this Agreement that is qualified as to materiality shall be
20
true and
correct on and as of the Closing Date as if made on and as of such date (other
than representations and warranties which address matters only as of a certain
date, which shall be true and correct as of such certain date) and each of the
representations and warranties of the Company that is not so qualified shall be
true and correct in all material respects on and as of the Closing Date as if
made on and as of such date (other than representations and warranties which
address matters only as of a certain date, which shall be true and correct in
all material respects as of such certain date).
ARTICLE
VII
FURTHER
AGREEMENTS
Section
7.1 Public
Announcements.
The Fund Investors and the Company
shall consult with each other before issuing any press release or otherwise
making any public statements with respect to the execution and delivery of this
Agreement or the other Transaction Agreements or any of the Transactions, and
shall not issue any such press release or make any such public statement prior
to reaching mutual agreement on the language of such press release or such
public statement, except as may otherwise be required by applicable Requirement
of Law or stock exchange rule.
Section
7.2 Fees and
Expenses.
(a) Except
as otherwise specified in this Section 7.2 or agreed in writing by the parties,
all costs and expenses incurred in connection with this Agreement, the
Registration Rights Agreement and the Transactions shall be paid by the party
incurring such cost or expense.
(b) The
Company shall promptly reimburse the Fund Investors upon presentation of
appropriate invoices and documentation therefor for all Reimbursable Expenses
incurred by or on behalf of the Fund Investors or any of their
Affiliates. Any such Reimbursable Expenses incurred on or prior to
the Closing Date may also be deducted by the Fund Investors from the Purchase
Price as contemplated in Article II. For purposes of this Agreement,
“Reimbursable
Expenses” shall mean all reasonable out-of-pocket fees and expenses
incurred by or on behalf of the Fund Investors (or their respective Affiliates)
at any time prior to any termination of this Agreement (whether before or after
the date hereof or before or after the Closing Date) in connection with their
due diligence investigation of the Company, the preparation of this Agreement
and the other Transaction Agreements and consummation of the Transactions and
related preparations therefor, including all reasonable fees and expenses of
counsel, accountants, experts and consultants to the Fund Investors and their
respective Affiliates.
(c) On
or prior to the date of this Agreement, the Company shall deposit $25,000 with
▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Mast Investor, as an advance to be applied
against a portion of reasonable fees, time charges and expenses of the Mast
Investor to be paid by the Company in accordance with Section 7.2(b)
above. Amounts payable by the Company to the Mast Investor in
accordance with Section 7.2(b) which exceed $25,000 will be paid by the Company
at the Closing or shall be deducted by the Mast Investor from the Purchase Price
in accordance with the terms of Section 7.2(b).
21
(d) The
Company acknowledges that the agreements contained in this Section 7.2 are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, the Fund Investors would not enter into this
Agreement. Accordingly, if the Company fails to pay promptly any
Reimbursable Expenses due to any Fund Investor pursuant to this Section 7.2, (i)
interest shall accrue and immediately become payable on the overdue amount from
the due date thereof until the date of payment at the base rate of Citibank,
N.A. in effect from time to time and (ii) in the event that any Fund Investor
commences a suit that results in a judgment against the Company for any such
overdue amount or interest, the Company shall also reimburse such Fund Investor
for its costs and expenses (including reasonable attorney’s fees) incurred in
connection with such suit.
Section
7.3 Independent Nature of
Investors Obligations.
The
obligations of each Investor under any Transaction Document are several and not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. Nothing contained herein or
in any other Transaction Document, and no action taken by any Investor pursuant
hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Documents and the Company acknowledges that the Investors are not
acting in concert or as a group, and the Company will not assert any such claim,
with respect to such obligations or the transactions contemplated by the
Transaction Documents. Each Investor shall be entitled to
independently protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement or out of any other Transaction Documents,
and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose.
ARTICLE
VIII
GENERAL
Section
8.1 Termination.
This
Agreement may be terminated at any time prior to the Closing:
(a) by
mutual written consent of the Fund Investors and the Company;
(b) by
the Fund Investors if there has been (i) a material breach of any of the
representations or warranties of the Company set forth in this Agreement that
would give rise to the failure of the condition set forth in Section 6.2(e) or
(ii) a material breach of any of the covenants or agreements of the Company set
forth in this Agreement, which breach has not been cured within ten (10)
Business Days following receipt by the Company of notice of such breach from the
Fund Investors; provided that the
Fund Investors are not then in material breach of any representation or warranty
under this Agreement.
(c) by
the Company, as this Agreement relates to a particular Investor or Investors, if
there has been (i) a material breach of any of the representations or warranties
by such Investor or Investors set forth in this Agreement that would give rise
to the failure of the condition set forth in Section 6.1(d) or (ii) a material
breach of any of the covenants or
22
agreements
of such Investor or Investors set forth in this Agreement, which breach has not
been cured within ten (10) Business Days following receipt by such Investor or
Investors of notice of such breach from the Company; provided that the
Company is not then in material breach of any representation or warranty under
this Agreement.
(d) by
any of the Investors or the Company if any permanent order, decree, ruling or
other action of a court or other competent authority restraining, enjoining or
otherwise preventing the consummation of any of the Transactions shall have
become final and non-appealable; or
(e) by
either of the Fund Investors or the Company if the Closing shall not have
occurred on or before April 30, 2008, unless the failure for the Closing to
occur is the result of a material breach of this Agreement by the party seeking
to terminate this Agreement.
In the
event of termination of this Agreement by any of the Investors or the Company,
as provided in this Section 8.1, this Agreement shall forthwith become void and
there shall be no liability hereunder on the part of the Investors or the
Company, or their respective officers, directors, managers, members or partners,
except for Sections 8.2 and 9.1 and except that no such termination shall
relieve any party of liability for any breach of any other provision of this
Agreement occurring prior to such termination.
Section
8.2 Notice.
Whenever any notice is required to be
given hereunder, such notice shall be deemed given only when such notice is in
writing and is delivered by messenger or courier or, if sent by fax, when
received. All notices, requests and other communications hereunder
shall be delivered by courier or messenger or shall be sent by facsimile to the
following addresses:
|
|
(i)
|
If
to the Mast Investor, at the following
address:
|
MAST
Credit Opportunities I Master Fund Limited
c/o MAST
Capital Management, LLC
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy by fax or messenger or
courier to:
▇▇▇▇▇
▇▇▇▇ LLP
Bay
Colony Corporate Center
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
(ii) If
to the MatlinPatterson Investor, at the following address:
23
MatlinPatterson
FA Acquisition LLC
c/o
MatlinPatterson Global Advisers LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General
Counsel
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with a copy by fax or messenger or
courier to:
Sidley
Austin llp
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(iii) If
to the Company, at the following address:
▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: General
Counsel
with a copy by fax or messenger or
courier to:
▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(iv) If
to any Individual Investor, to the address set forth below such Individual
Investor’s name on Exhibit
B,
or, in
the case of any of the foregoing, to such other respective addresses as may be
designated by notice given in accordance with this Section 8.2.
Section
8.3 Complete Agreement; No
Third-Party Beneficiaries.
This Agreement, the other Transaction
Agreements, the Investor Confidentiality Agreements and the Company Disclosure
Letter constitute the entire agreement among the parties pertaining to the
subject matter hereof and supersede all prior agreements and understandings of
the parties in connection therewith, including the letter Re: Common Stock
Purchase and Backstop dated February 21, 2008 between Mast Capital Management,
LLC and the Company and attached Term Sheet, which, except for those sections
which are explicitly binding on the parties thereto, shall be deemed terminated
and of no further force or effect. This
24
Agreement
is not intended to confer upon any person other than the Company and the
Investors any rights or remedies hereunder.
Section
8.4 Survival.
The respective representations,
warranties, covenants and agreements of the Company and the Investors set forth
in this Agreement or any other Transaction Agreement or in any exhibit,
schedule, certificate or instrument attached or delivered pursuant hereto or
thereto (except covenants and agreements which are expressly required to be
performed and are performed in full on or prior to the Closing Date) shall
survive the Closing and the consummation of the Transactions.
Section
8.5 Governing
Law.
THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD APPLY THE LAW OF ANY
OTHER JURISDICTION. THE INVESTORS AND THE COMPANY HEREBY CONSENT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS
LOCATED IN THE BOROUGH OF MANHATTAN WITH RESPECT TO ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR TO DETERMINE
THE RIGHTS OF ANY PARTY HERETO.
Section
8.6 No
Assignment.
Neither this Agreement nor any rights
or obligations under it are assignable by any party without the written consent
of the other parties.
Section
8.7 Counterparts.
This Agreement may be executed in one
or more counterparts and by different parties in separate
counterparts. All such counterparts shall constitute one and the same
agreement and shall become effective when one or more counterparts have been
signed by each party and delivered to the other parties.
Section
8.8 Remedies;
Waiver.
All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available. No failure on the part of any party to exercise
or delay in exercising any right hereunder shall be deemed a waiver thereof, nor
shall any single or partial exercise preclude any further or other exercise of
such or any other right. Notwithstanding any other provision of this
Agreement, it is understood and agreed that remedies at law would be inadequate
in the case of any breach of the covenants contained in this
Agreement. The Company and the Investors shall be entitled to
equitable relief, including the
25
remedy of
specific performance, with respect to any breach or attempted breach of such
covenants by the other party.
Section
8.9 Severability.
Any invalidity, illegality or
unenforceability of any provision of this Agreement in any jurisdiction shall
not invalidate or render illegal or unenforceable the remaining provisions
hereof in such jurisdiction and shall not invalidate or render illegal or
unenforceable such provisions in any other jurisdiction. The Company
and the Investors shall endeavor in good faith negotiations to replace any
invalid, illegal or unenforceable provision with a valid, legal and enforceable
provision, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provision.
Section
8.10 Amendment;
Waiver.
This Agreement may be amended only by
agreement in writing of each of the parties (including, without limitation, the
MAST Investor). No waiver of any provision nor consent to any
exception to the terms of this Agreement shall be effective unless in writing
and signed by the party to be bound and then only to the specific purpose,
extent and instance so provided.
Section
8.11 Confidentiality.
Except
for the Mast Investor, which has entered into a confidentiality agreement with
the Company dated as of February 28, 2008 and remains subject to its terms, each
Investor acknowledges and agrees that any information or data it has acquired
from the Company, not otherwise properly in the public domain, was received in
confidence. Each Investor agrees not to divulge, communicate or
disclose, except as may be required by law or for the performance of this
Agreement, or use to the detriment of the Company or for the benefit of any
other person or persons, or misuse in any way, any confidential information of
the Company.
[the next
page is the signature page]
26
COMPANY
AND FUND INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
By: /s/ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title:
Chief Executive Officer
MAST CREDIT
OPPORTUNITIES I MASTER
FUND
LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Partner
MATLINPATTERSON FA
ACQUISITION LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
President
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
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Investor
Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇
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||
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Signature:
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/s/
▇▇▇▇
▇. ▇▇▇▇▇▇
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Name
of Signatory:
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||
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(If
different than Investor)
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Address
for Notice:
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▇▇
▇▇▇▇▇▇▇▇ ▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇
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▇▇▇▇▇
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Fax
Number:
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▇▇▇-▇▇▇-▇▇▇▇ (w) |
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Telephone
Number:
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▇▇▇-▇▇▇-▇▇▇▇
(w)
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||
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Email
Address:
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▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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With
a copy to (which shall not constitute notice):
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INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇
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||
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Signature:
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/s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Name
of Signatory:
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||
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(If
different than Investor)
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|||
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Address
for Notice:
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▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
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Fax
Number:
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▇▇▇-▇▇▇ ▇▇▇▇ |
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Telephone
Number:
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▇▇▇-▇▇▇
▇▇▇▇
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Email
Address:
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▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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With
a copy to (which shall not constitute notice):
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▇▇▇▇▇▇▇@▇▇▇.▇▇▇
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INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Signature:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name
of Signatory:
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||
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(If
different than Investor)
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▇▇▇ ▇. ▇▇▇▇ ▇▇. | ||
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Address
for Notice:
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Apt.
PHG
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▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax
Number:
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(▇▇▇) ▇▇▇-▇▇▇▇ |
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Telephone
Number:
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greg-▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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Email
Address:
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With
a copy to (which shall not constitute notice):
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INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
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▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Signature:
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/s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Name
of Signatory:
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(If
different than Investor)
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Address
for Notice:
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▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇▇
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Fax
Number:
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▇▇▇-▇▇▇-▇▇▇▇ |
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Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇
▇. ▇▇▇▇
|
||
|
Signature:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇
▇▇▇▇▇▇▇▇ ▇▇
|
||
|
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
matty1225@hotmail
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇
▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇
▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇
▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇.
|
||
|
▇.▇., ▇.▇.
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇.
|
||
|
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
|
||
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇▇▇
▇▇
|
||
|
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
(▇▇▇) ▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇
▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇. ▇▇▇▇ ▇▇.,
▇▇▇. ▇▇
|
||
|
|
|||
|
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇
|
||
|
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇
Tama
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇
Tama
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇
▇▇.
|
||
| ▇▇▇. ▇▇ | |||
|
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
|
||
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇ Rollover
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇.
|
||
|
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
|
||
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
(w) ▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
(w) ▇▇▇-▇▇▇-▇▇▇▇ (h)
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇▇▇
▇▇.
|
||
|
▇. ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇(w)
973-585-7319(h)
|
||
|
Email
Address:
|
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇▇
▇▇
|
||
|
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇ ▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇ ▇.
▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
|
||
|
▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
|
||
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇ ▇.
▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
973 -532-0231 |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇
▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇
▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇
▇▇
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||
|
▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
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Fax
Number:
|
▇▇▇ ▇▇▇-▇▇▇▇ |
|
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Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
#▇▇▇▇
|
||
|
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇
|
|||
|
▇▇▇ ▇▇▇
▇▇▇▇▇▇
|
|||
|
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
| Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. | |||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
||
|
Signature:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇ ▇▇▇▇▇
▇▇
|
||
|
▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
|
|||
|
|
|||
|
Fax
Number:
|
|
||
|
Telephone
Number:
|
▇▇▇-▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
INDIVIDUAL
INVESTOR SIGNATURE PAGE
IN
WITNESS WHEREOF, the Company and the Investors have caused this Agreement to be
executed by their respective offers thereunto duly authorized all as of the date
first written above.
|
Investor
Name:
|
▇▇▇▇▇▇ ▇.
Fine
|
||
|
Signature:
|
/s/ ▇▇▇▇▇▇ ▇.
Fine
|
|
|
|
Name
of Signatory:
|
|
||
|
(If
different than Investor)
|
|||
|
Address
for Notice:
|
▇▇▇▇▇▇ ▇.
Fine
|
||
|
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇
|
|||
|
▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|||
|
Fax
Number:
|
(▇▇▇) ▇▇▇-▇▇▇▇ |
|
|
|
Telephone
Number:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
||
|
Email
Address:
|
▇▇▇▇▇@▇▇▇.▇▇▇
|
||
|
With
a copy to (which shall not constitute notice):
|
|||
|
|
|||
|
|
|||
|
|
|||
Exhibit
A
to
Defined
Terms.
“Action or Proceeding”
means any suit, action, proceeding (including any compliance, enforcement or
disciplinary proceeding), arbitration, formal or informal inquiry, inspection,
investigation or formal order of investigation of complaint.
“Affiliate” has the
meaning set forth in Rule 12b-2 under the Exchange Act as in effect as on the
date hereof.
“Agreement” has the
meaning set forth in the preamble.
“Associated Person”
means an “associated persons” as defined in Article I, section (dd) of the
NASD’s By-laws, as incorporated into the FINRA Rulebook, By-laws and Schedules
to By-laws.
“Board” means the
board of directors of the Company.
“Business Day” means
any day other than a Saturday, Sunday or a day on which banking institutions in
the State of New York are authorized by law or executive order to
close.
“Business Entity”
means any corporation, partnership, limited liability company, joint venture,
association, partnership, business trust or other business entity.
“Capital Stock” means
the Common Stock and the Preferred Stock.
“Closing” has the
meaning set forth in Section 2.2.
“Closing Date” means
the date on which the Closing takes place.
“Code” means the U.S.
Internal Revenue Code of 1986, as amended.
“Common Stock” means
the common stock, par value $.01 per share, of the Company.
“Company” has the
meaning set forth in the preamble.
“Company Approvals”
has the meaning set forth in Section 3.5(b).
“Company Contract”
means any material indenture, mortgage, deed of trust, lease, contract,
agreement, instrument or other undertaking or legally binding arrangement
(whether
written or oral) to which the Company or any Subsidiary is a party or by the
Company or any Subsidiary or any of their respective properties or assets is
bound.
“Company Contractual
Consents” has the meaning set forth in Section 3.5(c).
“Company Disclosure
Letter” means the letter dated the date hereof delivered by the Company
to the Investors, which letter relates to this Agreement and is designated
therein as the Company Disclosure Letter.
“Company Material Adverse
Effect” means a material adverse effect on (i) the ability of the Company
to consummate any of the Transactions or to perform any of its obligations under
this Agreement or any of the other Transaction Agreements or (ii) the
businesses, assets (including licenses, franchises and other intangible assets),
liabilities, financial condition or operating income of the Company and its
Subsidiaries, taken as a whole, provided, however that in no
event shall any of the following, alone or in combination, be deemed to
constitute, nor shall any of the following be taken into account in determining
whether there has been, a Company Material Adverse Effect: (a) a
change in the market price or trading volume of Common Stock (but not any
effect, event, development or change underlying such decrease to the extent that
such effect, event, development or change would otherwise constitute a Company
Material Adverse Effect); (b) changes in conditions in the U.S. or global
economy or capital or financial markets generally, including changes in interest
or exchange rates; (c) changes in general legal, tax, regulatory, political or
business conditions; (d) changes that are the result of factors generally
affecting the industry in which the Company and the Subsidiaries operate; (e)
changes in applicable law or GAAP; (f) the negotiation, execution, announcement,
pendency or performance of this Agreement or the Transactions or the
consummation of the Transactions, including the impact thereof on relationships,
contractual or otherwise, with customers, suppliers, vendors, lenders, brokers,
investors, venture partners or employees; (g) acts of war, armed hostilities,
sabotage or terrorism, or any escalation or worsening of any such acts of war,
armed hostilities, sabotage or terrorism threatened or underway as of the date
of this Agreement; (h) earthquakes, hurricanes, floods, or other natural
disasters; (i) any action taken by the Company at the request or with the prior
written consent of each of the Fund Investors; (j) the failure of the Company to
take any action as a result of any restrictions or prohibitions set forth in
Article V; or (k) any adverse development in any litigation or regulatory
proceeding described in Schedule 3.9 or the
commencement of any action or proceeding based on a pre-litigation claim
described in Schedule
3.9; or (l) any litigation or regulatory proceeding alleging claims
arising under Section 10(b) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder or other laws to similar effect based solely on the
existence, announcement or performance of this Agreement or the
Transactions.
“Company Permits” has
the meaning set forth in Section 3.15.
“Contractual Consent”
applicable to a specified Person in respect of a specified matter means any
consent required to be obtained by such Person from any other Person party to
any Contractual Obligation to which such first Person is a party or by which it
is bound in order for such matter to occur or exist without resulting in the
occurrence of a default or event of default or termination, the creation of any
lien, the triggering of any decrease in the rights of
such
first Person, any increase in the obligations of such first Person or any other
consequence adverse to the interests of such first Person, under any provision
of such Contractual Obligation.
“Contractual
Obligation” means, as to any Person, any obligation arising out of any
indenture, mortgage, deed of trust, contract, agreement, insurance policy,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound (including, without limitation, any debt
security issued by such Person).
“Convertible
Securities” means securities or obligations that are convertible into or
exchangeable for shares of Capital Stock.
“Employee Stock Incentive
Plans” means the Company’s: (i) 1989 Stock Incentive Plan, (ii) 1999
Long-Term Incentive Plan (Amended and Restated Through April 27, 2004, as
amended), (iii) 2001 Long-Term Incentive Plan, as amended, (iv) 1989 Stock
Incentive Plan, as amended, (v) Restricted Stock Inducement Plan for Descap
Employees, as amended, (vi) 2003 Directors’ Stock Plan, as amended; and (vii)
2007 Incentive Compensation Plan.
“Employee Stock
Options” means any stock options granted pursuant to any Employee Stock
Incentive Plan.
“Evaluation Date” has
the meaning set forth in Section 3.7(c).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, together with the rules and
regulations promulgated thereunder.
“Financial Statements”
has the meaning set forth in Section 3.6(b).
“FINRA” means the
Financial Industry Regulatory Authority.
“Fund Investors” has
the meaning set forth in the preamble.
“GAAP” has the meaning
set forth in Section 3.6(b)
“Governmental
Authority” means any government or political subdivision or department
thereof, any governmental or regulatory body, commission, board, bureau, agency
or instrumentality, or any court or arbitrator or alternative dispute resolution
body, in each case whether federal, state, local, foreign or
supranational.
“Individual Investor”
has the meaning set forth in the preamble.
“Intellectual
Property” has the meaning set forth in Section 3.10.
“Investment” has the
meaning set forth in the recitals.
“Investors” has the
meaning set forth in the preamble.
“Investor Approvals”
has the meaning set forth in Section 4.3(b).
“Investor Confidentiality
Agreements” means (i) the confidentiality letter agreement dated March
20, 2007 between MatlinPatterson Global Opportunities Partners II, L.P. and the
Company and (ii) the confidentiality letter agreement dated as of February 28,
2008 between Mast Capital Management, LLC and the Company.
“Knowledge of the
Company” means the actual knowledge of the officers of the Company who
have been designated in the Company Disclosure Letter as having “Knowledge of
the Company”.
“Lender
Warrants” mean the Common
Stock purchase warrants issued to the Investors of the Senior Notes dated June
13, 2003, initially exercisable for the purchase of 437,000 shares of Common
Stock.
“Liens” means security
interests, liens, claims, pledges, mortgages, options, rights of first refusal,
agreements, limitations on voting rights, charges, easements, servitudes,
encumbrances and other restrictions of any nature whatsoever.
“Mast Investor” has
the meaning set forth in the preamble.
“MatlinPatterson
Investor” has the meaning set forth in the preamble.
“MatlinPatterson Registration
Rights Amendment” means Amendment No. 1 to the Registration Rights
Agreement dated as of September 21, 2007 substantially in the form of Exhibit
E.
“NASD” means the
National Association of Securities Dealers, Inc. and its
subsidiaries.
“New Registration Rights
Agreement” means a Registration Rights Agreement substantially in the
form of Exhibit
F.
“NYBCL” means the New
York Business Corporation Law.
“Organizational
Document” means, with respect to the Company or any Subsidiary, any
certificate or articles of incorporation, memorandum of association, by-laws,
partnership agreement, limited liability agreement, operating agreement, trust
agreement or other agreement, instrument or document governing the affairs of
the Company or such Subsidiary.
“Person” means any
individual, Business Entity, unincorporated association or Governmental
Authority.
“Preferred Stock”
means the preferred stock, par value $0.01 per share, of the
Company.
“Purchased Shares” has
the meaning set forth in Section 2.1.
“Purchase Price” has
the meaning set forth in Section 2.1.
“Investors” has the
meaning set forth in the preamble.
“Registration
Statement” means a registration statement to be filed by the Company
pursuant to the MatlinPatterson Registration Rights Amendment or the New
Registration Rights Agreement.
“Reimbursable
Expenses” has the meaning set forth in Section 7.2(b).
“Requirement of Law”
means any judgment, order (whether temporary, preliminary or permanent), writ,
injunction, decree, statute, rule, regulation, notice, law or ordinance and
shall also include any regulations of any applicable self regulatory
organizations.
“Restricted Stock”
means any shares of Common Stock issued (i) in the form of a Restricted Stock
Award or (ii) upon the exercise of RSUs.
“Restricted Stock
Award” means any award granted under an Employee Stock Incentive Plan
consisting of a direct issuance of restricted stock.
“Rights” has the
meaning set forth in the Rights Agreement.
“Rights Agreement”
means the Rights Agreement dated as of March 30, 1998 between the Company and
American Stock Transfer & Trust Company, as Rights Agent, as
amended.
“RSU” means a unit
representing a right to purchase Restricted Stock that is subject to an RSU
Award.
“RSU Award” means an
award granted under an Employee Stock Incentive Plan in the form of
RSUs.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇” has
the meaning set forth in Section 3.7(a).
“Schedules” means the
Schedules to the Company Disclosure Letter.
“SEC” means the
Securities and Exchange Commission.
“SEC Reports” has the
meaning set forth in Section 3.6(a)
“Securities Act” means
the Securities Act of 1933, as amended, together with the rules and regulations
promulgated thereunder.
“Share Price” has the
meaning set forth in Section 2.1.
“Stock Purchase
Rights” has the meaning set forth in Section 3.2(c).
“Subsidiary” means any
Business Entity of which the Company (either alone or through or together with
one or more other Subsidiaries) (x) owns, directly or indirectly, more than 50%
of the stock or other equity interests the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such Business Entity, (y) is a general partner, managing member, trustee
or other Person performing similar functions or (z) has control (as defined in
Rule 405 under the Securities Act).
“Tax Return” means any
return, report or similar statement (including the attached schedules) required
to be filed with respect to any Tax, including, without limitation, any
information return, claim for refund, amended return or declaration of estimated
Tax.
“Tax” means any tax,
governmental fee or other like assessment or charge of any kind whatsoever
(including any tax imposed under Subtitle A of the Code and any net income,
alternative or add-on minimum tax, gross income, gross receipts, sale, bulk
sales, use, real property, personal property, ad valorem, value added, transfer,
franchise, profits, license, withholding tax on amounts paid, withholding,
payroll, employment, excise severance, stamp, capital stock, occupation,
property, environmental or windfall profits tax, premium, custom, duty or other
tax or assessment), together with any interest, penalty, addition to tax or
additional amount thereto, imposed by any Governmental Authority.
“Taxing Authority”
means any Governmental Authority (domestic or foreign) responsible for the
imposition of any Tax.
“Transactions” means
the sale and issuance of the Purchased Shares to the Investors and the execution
and delivery of the Transaction Agreements.
“Transaction
Agreements” means this Agreement, the New Registration Rights Agreement,
and the MatlinPatterson Registration Rights Amendment.
Exhibit B
to
Schedule of
Investors
|
Name of Investor
|
Address
|
Number of Shares
|
Aggregate Purchase Price
($)
|
|
MAST
Credit Opportunities I Master Fund Limited
|
c/o
MAST Capital Management, LLC
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
7,058,824
|
12,000,000
|
|
MatlinPatterson
FA Acquisition LLC
|
c/o
MatlinPatterson Global Advisers II LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
|
1,594,000
|
2,709,800
|
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
294,118
|
500,000
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
350,000
|
595,000
|
|
▇▇▇▇▇▇
▇. Fine
|
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
150,000
|
255,000
|
|
▇▇▇▇
▇▇▇▇▇
|
▇▇
▇▇▇▇ ▇▇.
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
58,824
|
100,000
|
|
▇▇▇▇
▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
50,000
|
85,000
|
|
▇▇▇▇
▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
100,000
|
170,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
58,824
|
100,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
29,412
|
50,000
|
|
▇▇▇▇
▇▇▇▇▇▇
|
▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
150,000
|
255,000
|
|
▇▇▇▇
▇▇▇▇
|
▇
▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
150,000
|
255,000
|
|
▇▇▇▇▇
▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
30,000
|
51,000
|
|
▇▇▇▇
▇▇▇▇▇
|
▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
29,412
|
50,000
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
44,118
|
75,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
44,118
|
75,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
29,412
|
50,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
75,000
|
127,500
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
100,000
|
170,000
|
|
Michal
Tama
|
▇▇
▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
30,000
|
51,000
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
29,412
|
50,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ # ▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
30,000
|
51,000
|
|
▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
1,000,000
|
1,700,000
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇
▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇ ▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
58,824
|
100,000
|
|
▇▇▇▇▇
▇▇▇▇▇▇
|
▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
35,294
|
60,000
|
Exhibit C
to
List of Closing
Deliveries
Part I. Deliveries by the
Investors
|
1.
|
The
officer’s or Investor certificate contemplated to be delivered by each of
the Investors pursuant to Section 6.1(d).
|
|
Part II.
Deliveries by the
Company
|
1.
|
The
officer’s certificate contemplated to be delivered by the Company pursuant
to Section 6.2(e).
|
|
|
2.
|
A
certificate of good standing for the Company issued by the Secretary of
State of the State of New York as of a date that is not more than three
(3) Business Days prior to the Closing Date.
|
|
|
3.
|
A
certificate of the Secretary or Assistant Secretary of the Company, dated
the Closing Date, as to (i) the Certificate of Incorporation of the
Company; (ii) the Bylaws of the Company; (iii) the resolutions of the
Board of Directors of the Company authorizing the execution and delivery
of the Agreement, the New Registration Rights Agreement and the
MatlinPatterson Registration Rights
Amendment.
|
Exhibit D
to
Legal Opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP
Exhibit E
to
MatlinPatterson Registration
Rights Amendment
Exhibit F
to
New Registration Rights
Agreement
Exhibit G
to
ACCREDITED
INVESTOR QUESTIONNAIRE
The
undersigned Investor, in connection with the acquisition of securities of
Broadpoint Securities Group, Inc. (the "Company"), hereby makes the following
representations and warranties:
The
Investor understands that the offer and sale of the Company's shares are not
being registered under the Securities Act of 1933, as amended (the "Act") or
qualified under state securities laws, in reliance upon exemptions from such
registration and qualification requirements for transactions not involving any
public offering. Information supplied through this Questionnaire will be used to
ensure compliance with the requirements of such exemptions.
The
undersigned Investor represents and warrants to the Company that:
|
(a)
|
The
information contained herein is complete and accurate and may be relied
upon by the Company; and
|
|
(b)
|
Investor
will notify the Company immediately of any material change in any of such
information occurring prior to the acceptance or rejection of the
Investor’s subscription for securities of the
Company.
|
ALL
INFORMATION WILL BE TREATED CONFIDENTIALLY
The
Investor represents and warrants that the Investor falls within the category (or
categories) marked. PLEASE INDICATE EACH CATEGORY OF ACCREDITED
INVESTOR THAT YOU SATISFY, BY PLACING AN "X" ON THE APPROPRIATE LINE
BELOW.
|
_____ Category
1.
|
A bank, as defined in Section 3(a)(2) of the Act, whether acting in its individual or fiduciary capacity; or | |
|
_____ Category
2.
|
A
savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act, whether acting in its individual or fiduciary
capacity; or
|
|
| _____ Category 3. | A
broker or dealer registered pursuant to Section 15 of
the
Securities Exchange Act of 1934; or
|
|
|
_____ Category
4.
|
An insurance company as defined in Section 2(13) of the Act; or | |
|
_____ Category
5.
|
An
investment company registered under the Investment Company Act of 1940;
or
|
| _____ Category 6. | A business development company as defined in Section 2(a) (48) of the Investment Company Act of 1940; or | |
|
_____ Category
7.
|
A small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; or | |
|
_____ Category
8.
|
A plan established and maintained by a state, its political subdivision or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with assets in excess of US$5,000,000; or | |
| _____ Category 9. | An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment advisor, or an employee benefit plan with total assets in excess of US$5,000,000 or, if a self-directed plan, the investment decisions are made solely by persons who are accredited investors; or | |
|
_____ Category
10.
|
A
private business development company as defined in Section 202(a)(22) or
the Investment Advisors Act of 1940; or
|
|
|
_____ Category
11.
|
An
organization described in Section 501(c)(3) of the Internal Revenue Code,
a corporation, a Massachusetts or similar
business trust, or a partnership, not formed for
the specific purpose of acquiring the Shares, with total assets in excess
of US$5,000,000; or
|
|
|
_____ Category
12.
|
A
director, executive officer or general partner of the Company;
or
|
|
|
_____ Category
13.
|
A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of this purchase exceeds US$1,000,000; or | |
|
_____ Category
14.
|
A natural person who had an individual income in excess of US$200,000 in each of the two most recent years or joint income with that person's spouse in excess of US$300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or | |
|
_____ Category
15.
|
A trust, with total assets in excess of US$5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in SEC Rule 506(b) (2)(ii); or | |
|
_____ Category
16.
|
An entity in which all of the equity owners are accredited investors. |
Date:
--------------------- ---------------------------------------
(Signature)
---------------------------------------
(Print
Name)