DRAFT - FOR DISCUSSION PURPOSES ONLY
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT is dated as of December __, 2004 by and
among XXXXXX CAPITAL CORPORATION, a Nevada corporation with its principal office
at 000 Xxxx Xxxxx Xxxx, Xxxxxxx, XX 00000 (the "Company"), and the persons
listed as Purchasers on the signature page and on Exhibit A hereto (the
"Purchasers").
WHEREAS, the Company desires to issue and sell to the Purchasers shares
("Shares") of the Company's authorized but unissued common stock, $0.001 par
value per share (the "Common Stock"); and
WHEREAS, each Purchaser wishes to purchase the Shares on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
(a) "Affiliate" of a party, means any corporation or other business
entity controlled by, controlling or under common control with such party. For
this purpose "control" shall mean direct or indirect beneficial ownership of
fifty percent (50%) or more of the voting or income interest in such corporation
or other business entity.
(b) "Closing Date" means the date of the Closing.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated there under.
(d) "Placement Agent" means Emerging Growth Equities, Ltd.
(e) "Registration Rights Agreement" shall mean that certain
Registration Rights Agreement, dated as of the date hereof, among the Company
and the Purchasers.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "Securities Act" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated there under.
2. Purchase and Sale of Shares
2.1 Purchase and Sale. Subject to and upon the terms and
conditions set forth in this Agreement, the Company agrees to issue and sell to
the Purchasers, and each Purchaser hereby agrees to purchase from the Company,
at the Closing, the number of Shares set forth opposite the name of the
Purchaser under the heading "Number of Shares to be Purchased" on Exhibit A
hereto, at a purchase price per Share of $____. The total purchase price payable
by each Purchaser for the number of Shares that the Purchaser is hereby
purchasing is set forth on Exhibit A hereto.
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2.2 Closing. The Closing of the transactions contemplated
under this Agreement shall take place upon receipt of a wire transfer or other
form of payment in same day funds from each Purchaser of the amount of the
purchase price to the Company, together with an executed copy of this Agreement.
The purchase and sale of the Shares shall take place at the offices of Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, and the acceptance by the Company of the Purchaser's purchase of Shares.
Within three business days of the Closing, the Company shall deliver to each
Purchaser as described in Exhibit A, a single stock certificate registered in
the name of the Purchaser, representing the number of Shares of Common Stock
purchased by the Purchaser, as computed pursuant to Section 2.1 hereof.
2.3 Lock Up Periods.
(i) Until the Closing, Investor will not directly or
indirectly make or participate in any sale of shares of the Company's common
stock, including without limitation any "short sales" as defined in Rule 200
under Regulation SHO, whether or not short exempt, or sales of a long position.
(ii) Until a registration statement covering the Shares is
declared effective, Investor will not directly or indirectly make or participate
in any short sale of shares of the Company's common stock, whether or not short
exempt.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Purchasers as of the Closing Date as follows:
3.1 Incorporation. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and is qualified to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect upon the Company. The Company has all requisite corporate power
and authority to carry on its business as now conducted.
3.2 Capitalization. The authorized capital stock of the
Company consists of ______________ shares of Common Stock, par value of $0.001,
of which _________ shares were outstanding as of September 30, 2004 and _______
shares of Preferred Stock, par value of $0.001, of which no shares are
outstanding on the date hereof. Except as set forth in Schedule 3.2 hereto,
there are no existing options, warrants, calls, preemptive (or similar) rights,
subscriptions or other rights, agreements, arrangements or commitments of any
character obligating the Company to issue, transfer or sell, or cause to be
issued, transferred or sold, any shares of the capital stock of the Company or
other equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase,
redeem or otherwise acquire any shares of its capital stock or other equity
interests.
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3.3 Lock-up Agreements. At the Closing, each of the Company's
directors and executive officers, shall enter into the Lock-Up Agreement, in the
form attached as Schedule 3.3 hereto.
3.3 Authorization. All corporate action on the part of the
Company and its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered by
the Company, each of this Agreement and the Registration Rights Agreement shall
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such may be limited
by bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally and by general equitable principles. The Company has all
requisite corporate power to enter into this Agreement and the Registration
Rights Agreement and to carry out and perform its obligations under the terms of
this Agreement and the Registration Rights Agreement.
3.4 Xxxxxxxx-Xxxxx Act; Internal Accounting Controls. The
Company is in compliance in all material respects with the applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002, and the applicable rules and regulations
promulgated thereunder, that are currently effective with respect to the
Company. The Company and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset and liability accountability, (iii) access to assets or incurrence of
liabilities is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets and
liabilities is compared with the existing assets and liabilities at reasonable
intervals and appropriate action is taken with respect to any difference.
3.5 Valid Issuance of the Shares. The Shares being purchased
by the Purchasers hereunder will, upon issuance pursuant to the terms hereof and
thereof, be duly authorized and validly issued, fully paid and nonassessable and
have been duly reserved for issuance.
3.6 Financial Statements. The Company has furnished to the
Purchasers its audited Statements of Operations, Stockholders' Equity and Cash
Flows for the year ended December 31, 2003, its audited Balance Sheet as of
December 31, 2003, and its unaudited Statements of Operations, Stockholders'
Equity and Cash Flows for the nine months ended September 30, 2004, and its
unaudited Balance Sheet as of September 30, 2004. All such financial statements
are hereinafter referred to collectively as the "Financial Statements." The
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved,
and fairly present, in all material respects, the financial position of the
Company and the results of its operations as of the date and for the periods
indicated thereon, except that the unaudited financial statements may not be in
accordance with generally accepted accounting principles because of the absence
of footnotes normally contained therein and are subject to normal year-end audit
adjustments which, individually and in the aggregate, will not be material.
Since September 30, 2004, to the Company's knowledge, there has been no material
adverse change (actual or threatened) in the assets, liabilities (contingent or
other), affairs, operations, prospects or condition (financial or other) of the
Company. Notwithstanding anything to the contrary in this Agreement, the
Company's current financial performance may vary materially from expectations
disclosed in the Company's SEC Documents (as such term is defined below) and
other publicly released information by the Company due to corporate response to
recent market volatility and uncertainty in the Company's markets.
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3.7 SEC Documents. The Company has informed the Purchasers of
the accessibility of the following documents on xxx.xxx.xxx: the Company's
Annual Report on Form 10-K for the year ended December 31, 2003, the Company's
Quarterly Report on Form 10-Q for the nine months ended September 30, 2004, and
any other statement, report, registration statement or definitive proxy
statement filed by the Company with the SEC during the period commencing
December 31, 2003, and ending on the date hereof (all such materials being
called, collectively, the "SEC Documents"). As of their respective filing dates,
the SEC Documents complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as applicable, and none of the SEC Documents
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
made therein, in light of the circumstances under which they were made, not
misleading, as of their respective filing dates, except to the extent corrected
by a subsequently filed SEC Document.
3.8 Consents. All consents, approvals, orders and
authorizations required on the part of the Company in connection with the
execution, delivery or performance of this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated herein, other
than for Regulation D and state blue sky filings with respect to the sale of
Units which will be made post-closing in accordance with such laws, and therein
have been obtained and will be effective as of the Closing Date.
3.9 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
any violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to a loss of a material benefit under (i) any provision of the
Certificate of Incorporation or Bylaws of the Company or (ii) any agreement or
instrument, permit, franchise, license, judgment, order, statute, law,
ordinance, rule or regulations, applicable to the Company or its properties or
assets.
3.10 Placement Agent. In consideration for services rendered
by the Placement Agent in placing the Shares, the Company has agreed to pay the
Placement Agent a cash payment equal to six percent (6%) of the gross proceeds
of the sale of the Shares sold under this Securities Purchase Agreement and
issue to the Placement Agent, Warrants equal to six percent (6%) of the total
shares sold in the Offering. The Warrants will have a three year term and will
have an exercise price equal to 125% of the price of the shares sold in the
Private Placement. Other than as set forth herein, the Company has no obligation
to pay brokers' fees or commissions by virtue of the sale of the Shares.
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3.11 Over-the-Counter Bulletin Board. The Company's Common
Stock is listed on the Over-the-Counter Bulletin Board (OTC:BB), and there are
no proceedings to revoke or suspend such listing and the Company has not
received any communication from the OTC:BB with respect to any pending or
threatened proceeding that would give rise to a delisting.
3.12 Absence of Litigation. There is no action, suit or
proceeding or, to the Company's knowledge, any investigation, pending or
threatened by or before any governmental body against the Company and in which
an unfavorable outcome, ruling or finding in any said matter, or for all matters
taken as a whole, might have a material adverse effect on the Company. The
foregoing includes, without limitation, any such action, suit, proceeding or
investigation that questions this Agreement or the Registration Rights Agreement
or the right of the Company to execute, deliver and perform under same.
4. Representations and Warranties of the Purchasers. Each Purchaser
represents and warrants to the Company as of the Closing Date as follows:
4.1 Authorization. All action on the part of the Purchaser
and, if applicable, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the consummation of the transactions
contemplated herein and therein has been taken. When executed and delivered,
each of this Agreement and the Registration Rights Agreement will constitute the
legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with its terms, except as such may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally and by general equitable principles. The Purchaser has all requisite
power or corporate power, whichever is applicable, to enter into each of this
Agreement and the Registration Rights Agreement and to carry out and perform its
obligations under the terms of this Agreement and the Registration Rights
Agreement.
4.2 Purchase Entirely for Own Account. The Purchaser is
acquiring the Shares being purchased by it hereunder for investment, for its own
account, and not for resale or with a view to distribution thereof in violation
of the Securities Act.
4.3 Investor Status; Etc. The Purchaser certifies and
represents to the Company that at the time the Purchaser acquires any of the
Shares, the Purchaser will be an "Accredited Investor" as defined in Rule 501 of
Regulation D promulgated under the Securities Act and was not organized for the
purpose of acquiring the Shares. The Purchaser's financial condition is such
that it is able to bear the risk of holding the Shares for an indefinite period
of time and the risk of loss of its entire investment. The Purchaser has been
afforded the opportunity to ask questions of and receive answers from the
management of the Company concerning this investment and has sufficient
knowledge and experience in investing in companies similar to the Company in
terms of the Company's stage of development so as to be able to evaluate the
risks and merits of its investment in the Company.
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4.4 Shares Not Registered. The Purchaser understands that the
Shares have not been registered under the Securities Act, by reason of their
issuance by the Company in a transaction exempt from the registration
requirements of the Securities Act, and that the Shares must continue to be held
by the Purchaser unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration. The Purchaser understands
that the exemptions from registration afforded by Rule 144 (the provisions of
which are known to it) promulgated under the Securities Act depend on the
satisfaction of various conditions, and that, if applicable, Rule 144 may afford
the basis for sales only in limited amounts.
4.5 No Conflict. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Purchaser and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in any violation of or default by the Purchaser (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to a loss of a material
benefit under (i) any provision of the organizational documents of the Purchaser
or (ii) any agreement or instrument, permit, franchise, license, judgment,
order, statute, law, ordinance, rule or regulations, applicable to the Purchaser
or its properties or assets.
4.6 Consents. All consents, approvals, orders and
authorizations required on the part of the Purchaser in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated herein have been obtained and are effective as of the
Closing Date.
5. Conditions Precedent.
5.1. Conditions to the Obligation of the Purchasers to
Consummate the Closing. The obligation of the Purchasers to consummate the
Closing and to purchase and pay for the Shares being purchased by it pursuant to
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties contained herein of the
Company shall be true and correct on and as of the Closing Date with the same
force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Purchasers that, in the case of any representation
and warranty of the Company contained herein which is not hereinabove qualified
by application thereto of a materiality standard, such representation and
warranty need be true and correct only in all material respects in order to
satisfy as to such representation or warranty the condition precedent set forth
in the foregoing provisions of this Section 5.1(a)).
(b) The Registration Rights Agreement shall have been executed
and delivered by the Company.
(c) The Company shall have performed all obligations and
conditions herein required to be performed or observed by the Company on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
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(e) The purchase of and payment for the Shares by the
Purchasers shall not be prohibited by any law or governmental order or
regulation. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of any other person with respect to any
of the transactions contemplated hereby, other than for Regulation D and state
blue sky filings with respect to the sale of the Shares, shall have been duly
obtained or made and shall be in full force and effect.
(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Purchasers, and the
Purchasers shall have received copies (executed or certified, as may be
appropriate) of all documents which the Purchasers may have reasonably requested
in connection with such transactions.
5.2. Conditions to the Obligation of the Company to Consummate
the Closing. The obligation of the Company to consummate the Closing and to
issue and sell to the Purchasers the Shares to be purchased at the Closing is
subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein of
each Purchaser shall be true and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date (it being
understood and agreed by the Company that, in the case of any representation and
warranty of a Purchaser contained herein which is not hereinabove qualified by
application thereto of a materiality standard, such representation and warranty
need be true and correct only in all material respects in order to satisfy as to
such representation or warranty the condition precedent set forth in the
foregoing provisions of this Section 5.2(a)).
(b) The Registration Rights Agreement shall have been executed
and delivered by the Purchasers.
(c) The Purchasers shall have performed all obligations and
conditions herein required to be performed or observed by the Purchasers on or
prior to the Closing Date.
(d) No proceeding challenging this Agreement or the
transactions contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing, shall have been instituted before any court,
arbitrator or governmental body, agency or official and shall be pending.
(e) The sale of the Shares by the Company shall not be
prohibited by any law or governmental order or regulation. All necessary
consents, approvals, licenses, permits, orders and authorizations of, or
registrations, declarations and filings with, any governmental or administrative
agency or of any other person with respect to any of the transactions
contemplated hereby, other than for Regulation D and state blue sky filings with
respect to the sale of the Shares, shall have been duly obtained or made and
shall be in full force and effect.
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(f) All instruments and corporate proceedings in connection
with the transactions contemplated by this Agreement to be consummated at the
Closing shall be satisfactory in form and substance to the Company, and the
Company shall have received counterpart originals, or certified or other copies
of all documents, including without limitation records of corporate or other
proceedings, which it may have reasonably requested in connection therewith.
6. Transfer, Legends.
6.1. Securities Law Transfer Restrictions. The Purchasers
shall not sell, assign, pledge, transfer or otherwise dispose or encumber any of
the Shares being purchased by it hereunder, except (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under the Securities Act and applicable state
securities laws and, if requested by the Company, upon delivery by the Purchaser
of an opinion of counsel reasonably satisfactory to the Company to the effect
that the proposed transfer is exempt from registration under the Securities Act
and applicable state securities laws. Any transfer or purported transfer of the
Shares in violation of this Section 6.1 shall be voidable by the Company. The
Company shall not register any transfer of the Shares in violation of this
Section 6.1. The Company may, and may instruct any transfer agent for the
Company, to place such stop transfer orders as may be required on the transfer
books of the Company in order to ensure compliance with the provisions of this
Section 6.1.
6.2. Legends. Each certificate representing any of the Shares
or the Warrant Shares shall be endorsed with the legend set forth below, and
each Purchaser covenants that, except to the extent such restrictions are waived
by the Company, it shall not transfer the Shares or the Warrant Shares
represented by any such certificate without complying with the restrictions on
transfer described in this Agreement and the legend endorsed on such
certificate:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION
UNDER SAID ACT AND, IF REQUESTED BY THE COMPANY, UPON DELIVERY OF AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE PROPOSED TRANSFER IS
EXEMPT FROM SAID ACT."
7. Miscellaneous Provisions.
7.1 Public Statements or Releases. None of the parties to this
Agreement shall make, issue, or release any announcement, whether to the public
generally, or to any of its suppliers or customers, with respect to this
Agreement or the transactions provided for herein, or make any statement or
acknowledgment of the existence of, or reveal the status of, this Agreement or
the transactions provided for herein, without the prior consent of the other
parties, which shall not be unreasonably withheld or delayed, provided, that
nothing in this Section 7.1 shall prevent any of the parties hereto from making
such public announcements as it may consider necessary in order to satisfy its
legal obligations including the actions contemplated by the Registration Rights
Agreement, but to the extent not inconsistent with such obligations, it shall
provide the other parties with an opportunity to review and comment on any
proposed public announcement before it is made. The parties hereto agree that
the Company may issue a press release in substance substantially as set forth on
Schedule 7.1 hereto.
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7.2 Further Assurances. Each party agrees to cooperate fully
with the other party and to execute such further instruments, documents and
agreements and to give such further written assurances, as may be reasonably
requested by the other party to better evidence and reflect the transactions
described herein and contemplated hereby, and to carry into effect the intents
and purposes of this Agreement.
7.3 Rights Cumulative. Each and all of the various rights,
powers and remedies of the parties shall be considered to be cumulative with and
in addition to any other rights, powers and remedies which such parties may have
at law or in equity in the event of the breach of any of the terms of this
Agreement. The exercise or partial exercise of any right, power or remedy shall
neither constitute the exclusive election thereof nor the waiver of any other
right, power or remedy available to such party.
7.4 Pronouns. All pronouns or any variation thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person, persons, entity or entities may require.
7.5 Notices.
(a) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by postage prepaid first class mail, courier or telecopy
or delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(b) All correspondence to the Company shall be addressed as
follows:
Xxxxxx Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: 000-000-0000
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with a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier:
(c) All correspondence to the Purchasers shall be addressed to
each Purchaser at the address set forth on Exhibit A hereto.
(d) Any entity may change the address to which correspondence
to it is to be addressed by notification as provided for herein.
7.6 Captions. The captions and paragraph headings of this
Agreement are solely for the convenience of reference and shall not affect its
interpretation.
7.7 Severability. Should any part or provision of this
Agreement be held unenforceable or in conflict with the applicable laws or
regulations of any jurisdiction, the invalid or unenforceable part or provisions
shall be replaced with a provision which accomplishes, to the extent possible,
the original business purpose of such part or provision in a valid and
enforceable manner, and the remainder of this Agreement shall remain binding
upon the parties hereto.
7.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal and substantive laws of Nevada and
without regard to any conflicts of laws concepts which concepts, which would
apply the substantive law of some other jurisdiction.
7.9 Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition of this Agreement.
7.10 Expenses. Each party will bear its own costs and expenses
in connection with this Agreement.
7.11 Assignment. The rights and obligations of the parties
hereto shall inure to the benefit of and shall be binding upon the authorized
successors and permitted assigns of each party. Neither party may assign its
rights or obligations under this Agreement or designate another person (i) to
perform all or part of its obligations under this Agreement or (ii) to have all
or part of its rights and benefits under this Agreement, in each case without
the prior written consent of the other party. In the event of any assignment in
accordance with the terms of this Agreement, the assignee shall specifically
assume and be bound by the provisions of the Agreement by executing and agreeing
to an assumption agreement reasonably acceptable to the other party.
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7.12 Survival. The respective representations and warranties
given by the parties hereto, and the other covenants and agreements contained
herein, shall survive the Closing Date and the consummation of the transactions
contemplated herein for a period of one year, without regard to any
investigation made by any party.
7.13 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto respecting the subject matter hereof and
supersedes all prior agreements, negotiations, understandings, representations
and statements respecting the subject matter hereof, whether written or oral. No
modification, alteration, waiver or change in any of the terms of this Agreement
shall be valid or binding upon the parties hereto unless made in writing and
duly executed by the Company and the Purchasers.
7.14 Counterparts. This Agreement may be executed in a number
of counterparts, each of which together, shall for all purposes constitute one
Agreement, binding on all of the parties hereto, notwithstanding that all such
parties have not signed the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Securities Purchase
Agreement under seal as of the day and year first above written.
XXXXXX CAPITAL CORPORATION
By:
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
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Signature of Purchaser
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Print Name of Purchaser
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DRAFT - FOR DISCUSSION PURPOSES ONLY
EXHIBIT A
Purchaser's Name
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Purchaser's Tax ID or SSN
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Purchaser's Address
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Purchase Date
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Total Dollar Amount to be Purchased
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Purchase Price per Share
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Number of Shares to be Purchased
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All funds to be delivered to the Company by bank wire transfer as follows:
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SCHEDULE 3.3
LOCK-UP AGREEMENT
I, _____________, in connection with Section 3.3 of that certain
Securities Purchase Agreement, dated as of December ___, 2004 (the "Securities
Purchase Agreement"), among certain Purchasers and Xxxxxx Capital Corporation, a
Nevada corporation (the "Company"), do hereby agree that prior to the expiration
of one year from the effective date of the registration statement (the
"Registration Statement") covering the shares of the Company's Common Stock
issued pursuant to the Securities Purchase Agreement, I will not sell, contract
to sell, pledge, make any short sale or make any other disposition of, or grant
any purchase option for the sale of, any shares of common stock of the Company
("Common Stock") or any options or warrants to purchase shares of Common Stock
or any securities that are convertible into or exchangeable for, or represent
the right to receive, shares of Common Stock, whether now owned or hereafter
acquired, owned directly by the undersigned or with respect to which the
undersigned has beneficial ownership within the rules and regulations of the
Securities and Exchange Commission, without first obtaining the written consent
of Emerging Growth Equities, Ltd. and the Purchasers, except for: (i) bona fide
gifts to persons who deliver a certificate substantially in the form of this
Lock-Up Agreement to the Purchasers in the Securities Purchase Agreement; or
(ii) shares of the Company's Common Stock sold pursuant to a written plan
contemplated by Rule 10b5-1(c)(A)(3) of the U.S. Securities Exchange Act of
1934, as amended; provided, that, such shares may only be sold after the
Registration Statement is declared effective.
The undersigned understands that the Company and the Purchasers are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that, subject to the following
sentence, this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's heirs, legal representatives, successors, and assigns.
IN WITNESS WHEREOF, I have signed this Lock-Up Agreement as of December
__, 2004.
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Name:
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