Exibit 10.5
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made as of this
5th day of January, 2006, by and among Marco Hi-Tec JV, Ltd., a New York
corporation (the "COMPANY"), and the investors set forth on SCHEDULE A attached
hereto (each an "INVESTOR" and, collectively, the "INVESTORS").
WHEREAS, the Company desires to issue and sell, and the Investors desire to
purchase shares of the Company's common stock, $0.01 par value per share (the
"COMMON STOCK).
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, the parties hereto
intending to be legally bound, hereby agree as follows:
1. PURCHASE AND SALE OF SECURITIES.
1.1 SALE AND ISSUANCE OF SECURITIES.
(a) Subject to the terms and conditions of this Agreement, each
Investor severally agrees to purchase, and the Company agrees to sell to each
Investor shares of Company Common Stock as follows, such number of shares of
Common Stock that upon any future mergers or reorganizations the purchase price
shall not exceed $1.50 per share.
1.2 CLOSING. The purchase and sale of shares of Common Stock (the
"SECURITIES") shall take place at such time and at such place as the Investors
and the Company mutually agree (the "CLOSING"). At the Closing, (a) the Company
shall deliver to each of the Investors a certificate representing the number of
shares of Common Stock such Investor is purchasing against (b) receipt of (i) a
check subject to collection or a wire transfer of the purchase price to an
account designated by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants, as of the date hereof to the Investors that, except
where indicated on the Schedule of Exceptions attached hereto as SCHEDULE B and
furnished to the Investors, which Schedule of Exceptions shall be deemed to be
representations and warranties as if made hereunder:
2.1 ORGANIZATION, GOOD STANDING, QUALIFICATION AND CORPORATE POWER.
(a) The Company and its subsidiaries are either (i) limited liability
companies or corporations duly organized and validly existing under the laws of
their respective jurisdictions of formation, and that each has the requisite
power and authority to carry on its business as now conducted and as proposed to
be conducted. The Company and its subsidiaries are qualified to transact
business and are in good standing as foreign corporations in each jurisdiction
where they are required to so qualify, except for such jurisdictions where the
failure to so qualify would not have a Material Adverse Effect (as hereinafter
defined). True and accurate copies of the Company's and its subsidiaries'
certificate of incorporation, bylaws, articles of organization, operating
agreement, or such other constitutive documents, as the case may be, each as
amended and in effect on and as of the Closing (the "ORGANIZATIONAL DOCUMENTS"),
were delivered to the Investors.
(b) The Company has all requisite legal and corporate power to
execute and deliver this Agreement and each of the other Basic Documents (as
hereinafter defined), and to issue and sell the Securities hereunder, and to
carry out and perform its obligations under the terms of this Agreement and the
other Basic Documents.
2.2 SUBSIDIARIES. Except as set forth on SCHEDULE B, the Company does
not presently own or control, directly or indirectly, any equity interest in any
other corporation, partnership, limited liability company, association or other
business entity.
2.3 AUTHORIZATION. The Basic Documents have been duly authorized,
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, subject to (a) applicable bankruptcy, insolvency,
reorganization and moratorium laws, (b) other laws of general application
affecting the enforcement of creditors' rights generally and general principles
of equity, (c) the discretion of the court before which any proceeding therefor
may be brought, and (d) as rights to indemnity may be limited by federal or
state securities laws or by public policy.
2.4 VALID ISSUANCE OF COMMON STOCK.
(a) The issuance, sale and delivery of the Securities hereunder
have been duly authorized by all required corporate action on the part of the
Company, and when issued, sold, and delivered in accordance with the terms
hereof for the consideration expressed herein, will be duly and validly issued,
fully paid and non-assessable. The Securities issued hereunder will be free and
clear from any liens or encumbrances other than those created by, or imposed
upon, the holders thereof through no action of the Company, other than
restrictions on transfer under state and/or federal securities laws and
restrictions set forth in the Basic Documents. Issuance of the Securities will
be free of statutory preemptive rights.
2.5 GOVERNMENTAL CONSENTS. Except for the filing of any notice
subsequent to the Closing that may be required under applicable federal and/or
state securities laws (which, if required, shall be filed on a timely basis as
may be so required), no consent, approval or authorization of, or declaration
to, or filing with, any Person (as hereinafter defined) (governmental or
private) is required for the valid authorization, execution, delivery and
performance by the Company of the Basic Documents or for the valid
authorization, designation, issuance, sale and delivery of the Securities.
2.6 LITIGATION.
(a) There is no action, suit, proceeding, or investigation
pending or to the Company's knowledge currently threatened against the Company
or any subsidiary (nor, to the Company's knowledge, is there any reasonable
basis therefor) which questions the validity or enforceability of the Basic
Documents or the right of the Company to enter into such agreements, or to
consummate the transactions contemplated thereby, or which might result, either
individually or in the aggregate, in a Material Adverse Effect.
(b) The Company is not a party or subject to the provisions of
any order, writ, injunction, judgment, or decree of any court or government
agency or instrumentality.
2
(c) There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
2.7 PATENTS AND TRADEMARKS. The Company and its subsidiaries have
sufficient title and ownership of all patents, trademarks, service marks, trade
names, copyrights, trade secrets, information, proprietary rights, and processes
necessary, or applicable, for their business as now conducted (collectively,
"INTELLECTUAL PROPERTY RIGHTS") without any conflict with or infringement of the
rights of others. There are no outstanding options, licenses, or agreements of
any kind relating to the Company's or its subsidiaries' Intellectual Property
Rights, nor is the Company or any subsidiary bound by or a party to any options,
licenses, or agreements of any kind with respect to the patents, trademarks,
service marks, trade names, copyrights, trade secrets, licenses, information,
proprietary rights, and processes of any other Person, except the so-called
"execute by opening" software license agreements. Neither the Company nor its
subsidiaries have received any communications or claims alleging, nor does the
Company have reason to believe that the Company or ant of its subsidiaries
violated or, by conducting its business as proposed, would violate, any of the
patents, trademarks, service marks, trade names, copyrights, or trade secrets or
other proprietary rights or processes of any other person or entity. The Company
is not aware of any violations or infringement by a third party of any of the
Company's or its subsidiaries' Intellectual Property Rights.
2.8 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in
violation or default of any provisions of its Organizational Documents or of any
instrument, judgment, order, writ, decree, or contract to which it is a party or
by which it or any of its assets may be bound or, to its knowledge, of any
provision of federal or state statute, rule or regulation, license, or permit
applicable to the Company. The execution, delivery, and performance of the Basic
Documents and the consummation of the transactions contemplated thereby will not
result in any such violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such provision, instrument, judgment, order, writ, decree, or contract or an
event which results in the creation of any lien, charge, or encumbrance upon any
assets of the Company or trigger any anti-dilution provisions, provisions for
the right to purchase stock, or preemptive rights in any agreements to which the
Company is a party. The Company does not have any knowledge of any termination
or material breach or anticipated termination or material breach by the other
parties to any material contract or commitment to which it is a party or to
which any of its assets is subject.
2.9 TITLE TO PROPERTY AND ASSETS. The Company and its subsidiaries
have good and marketable title to their property and assets free and clear of
all mortgages, liens, loans, and encumbrances, except such encumbrances and
liens which arise in the ordinary course of business and do not materially
impair the Company's or its subsidiaries' ownership or use of such property or
assets. With respect to the property and assets they lease, the Company and its
subsidiaries are in compliance in all material respects with such leases and, to
the Company's knowledge, hold valid leasehold interests free of any liens,
claims, or encumbrances. All of the Company's and its subsidiaries' property and
assets are, in all material respects, in good operating and usable condition,
subject to normal wear and tear.
2.10 LABOR AGREEMENTS AND ACTIONS; EMPLOYEE BENEFITS; ERISA.
3
(a) Neither the Company nor its subsidiaries are bound by or
subject to (and none of their assets or properties are bound by or subject to)
any written or oral, express or implied, contract, commitment, or arrangement
with any labor union, and no labor union has requested or, to the knowledge of
the Company, has sought to represent any of the employees, representatives, or
agents of the Company or its subsidiaries. There is no strike or other labor
dispute involving the Company or any of its subsidiaries pending, or, to the
knowledge of the Company, threatened, which could have a Material Adverse
Effect, nor is the Company aware of any labor organization activity involving
its or its subsidiaries' employees. To its knowledge, the Company and its
subsidiaries have complied in all material respects with all applicable state
and federal equal opportunity and other laws related to employment. The Company
has not received written notice that any employee of the Company or any of its
subsidiaries is in violation of any judgment, decree, or order, or any term of
any employment contract, patent disclosure agreement, or other contract or
agreement relating to the relationship of any such employee with the Company or
any of its subsidiaries, or any other party because of the nature of the
business conducted or presently proposed to be conducted by the Company or its
subsidiaries.
(b) The Company and its subsidiaries are not a party to or bound
by any currently effective employment contract, deferred compensation agreement,
bonus plan, incentive plan, profit sharing plan, retirement agreement, or other
employee compensation agreement. Neither the Company nor its subsidiaries have
any Employee Benefit Plan as defined in the Employee Retirement Income Security
Act of 1974, as amended.
2.11 INSURANCE. The Company and its subsidiaries have in full force
and effect fire, casualty, and liability insurance policies, with extended
coverage, in such amounts and with such coverage as is reasonable and prudent in
view of the business and operations of the Company.
2.12 TAX MATTERS. The Company and its subsidiaries (i) have filed all
tax returns that are required to have been filed by them with all appropriate
governmental agencies (and all such returns are true and correct and fairly
reflect their operations for tax purposes); and (ii) have paid all taxes owed or
assessments by them as indicated on such tax returns (other than taxes the
validity of which are being contested in good faith by appropriate proceedings).
The assessment of any additional taxes for periods for which returns have been
filed is not expected to exceed the recorded liability therefor and, to the
Company's knowledge, there are no material unresolved questions or claims
concerning the Company's or any subsidiaries' tax liability. The Company's and
its subsidiaries' tax returns have not been reviewed or audited by any taxing
authority. There is no pending dispute with any taxing authority relating to any
of said returns which, if determined adversely to the Company or ant subsidiary,
would result in the assertion by any taxing authority of any valid deficiency in
a material amount for taxes. The Company and its subsidiaries have withheld or
collected from each payment made to their employees the amount of all taxes,
including, but not limited to, income taxes, Federal Insurance Contribution Act
taxes and Federal Unemployment Tax Act taxes required to be withheld or
collected therefrom, and have paid the same to the proper tax receiving officers
or authorized depositaries.
2.13 MINUTE BOOKS. The minute books of the Company contain a complete
and accurate record in all material respects of all meetings of directors and
stockholders since the date of incorporation of the Company and all actions by
written consent.
4
2.14 REGULATIONS G, T AND X. The Company does not own or have any
present intention of acquiring any "margin security" within the meaning of
Regulation G (12 C.F.R. Part 207) of the Board of Governors of the Federal
Reserve System (herein called "margin security"). None of the proceeds of the
Securities will be used, directly or indirectly, by the Company for the purpose
of purchasing or carrying, or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry, any margin
security or for any purpose which might cause any Basic Document and the
transactions contemplated thereby to violate Regulation G, Regulation T,
Regulation X, or any other regulation of the Board of Governors of the Federal
Reserve System.
2.15 GOVERNMENTAL REGULATION. The Company is not subject to regulation
under the Investment Company Act of 1940, or to any United States of America,
state or local statute or regulation limiting its or their ability to incur Debt
(as hereinafter defined).
2.16 CUSTOMERS AND SUPPLIERS. No customer or supplier of the Company
or its subsidiaries, the loss of which would have a Material Adverse Effect, has
notified the Company of its intention to terminate its relationship with the
Company or any subsidiary.
2.17 FINDERS' FEES. Except as disclosed in SCHEDULE B, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of the Company who might be entitled to any
fee or commission from the Company or any of their respective affiliates upon
consummation of the transactions contemplated by this Agreement.
2.18 RELATED PARTY TRANSACTIONS. No employee, officer, stockholder or
director of the Company or any subsidiary or member of his or her immediate
family is indebted to the Company or any subsidiary, nor is the Company or any
subsidiary indebted (or committed to make loans or extend or guarantee credit)
to any of them, other than (i) for payment of salary for services rendered, (ii)
reimbursement for reasonable expenses incurred on behalf of the Company or any
of its subsidiaries, and (iii) for other standard employee benefits made
generally available to all employees. To the Company's knowledge, no employee or
officer of the Company or any of its subsidiaries has any direct or indirect
ownership interest in any firm or corporation with which the Company or any of
its subsidiaries is affiliated or with which the Company or any of its
subsidiaries has a business relationship, or any firm or corporation that
competes with the Company or any of its subsidiaries, except that employees,
officers or directors of the Company and members of their immediate families may
own stock in publicly traded companies that may compete with the Company or any
of its subsidiaries. To the best of the Company's knowledge, no officer or
stockholder or any member of their immediate families is, directly or
indirectly, interested in any material contract with the Company or any of its
subsidiaries (other than such contracts as relate to any such person's ownership
of capital stock or other securities of the Company or any of its subsidiaries
and other than employment agreements).
2.19 OFFERINg. Subject to the accuracy of the Investors'
representations in Section 3 hereof, the offer, sale and issuance of the
Securities to be issued in conformity with the terms of this Agreement
constitute transactions exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended (the "SECURITIES ACT").
5
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. Each Investor
severally and not jointly hereby represents and warrants, only as to each such
Investor and not as to any other Investor, to the Company that:
3.1 ORGANIZATION AND EXISTENCE. To the extent indicated on the
signature pages hereto, each Investor is either (i) a limited partnership duly
organized and validly existing under the laws of its respective state of
formation, (ii) a limited liability company duly organized and validly existing
under the laws of its respective state of formation, (iii) a corporation duly
organized and validly existing under the laws of its respective state of
incorporation or (iv) an individual. Each Investor represents that it was not
organized for the purpose of making an investment in the Company.
3.2 AUTHORIZATION. The execution, delivery and performance by the
Investor of this Agreement, and the Basic Documents to which the Investor is a
party, and the consummation by such Investor of the transactions contemplated
hereby and thereby are within the powers of such Investor and have been duly
authorized by all necessary individual, corporate, partnership or limited
liability company action, as appropriate, on the part of such Investor. This
Agreement and each of the Basic Documents to which the Investor is a party
constitute, valid and binding agreements of such Investor, enforceable in
accordance with their respective terms, subject to (a) applicable bankruptcy,
insolvency, reorganization and moratorium laws, (b) other laws of general
application affecting the enforcement of creditors' rights generally and general
principles of equity, (c) the discretion of the court before which any
proceeding therefor may be brought, and (d) as rights to indemnity may be
limited by federal or state securities laws or by public policy.
3.3 FINDERS' FEES. Except as disclosed in SCHEDULE B, there is no
investment banker, broker, finder or other intermediary which has been retained
by or is authorized to act on behalf of the Investor who might be entitled to
any fee or commission from the Investors upon consummation of the transactions
contemplated by this Agreement and the Basic Documents.
3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Securities to be received
by the Investor pursuant to the terms hereof will be acquired for investment for
such Investor's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof. The Investor has no present
intention of selling, granting any participation in, or otherwise distributing
the Securities acquired by the Investor. The Investor has no contract,
undertaking, agreement or arrangement with any Person to sell or transfer, or
grant any participation to such Person or to any third Person, with respect to
any Securities to be acquired by the Investor.
3.5 INVESTOR ADDRESS, ACCESS TO INFORMATION, EXPERIENCE, ETC.
(a) The address set forth on the signature pages of this
Agreement is such Investor's true and correct business, residence or domicile
address. The Investor has received and read and is familiar with this Agreement.
The Investor has had an opportunity to ask questions of and receive answers from
representatives of the Company concerning the terms and conditions of this
investment. The Investor has substantial experience in evaluating non-liquid
investments such as the Securities and is capable of evaluating the merits and
risks of an investment in the Company. The Investor is an "accredited investor"
6
as that term is defined in Rule 501(c) of Regulation D promulgated under the
Securities Act.
(b) The Investor has been furnished access to the business
records of the Company and such additional information and documents as such
Investor has requested and has been afforded an opportunity to ask questions of,
and receive answers from, representatives of the Company concerning the terms
and conditions of this Agreement, the purchase of the Securities, the business,
operations, market potential, capitalization, financial condition and prospects
of the Company, and all other matters deemed relevant to such Investor.
(c) The Investor acknowledges that it has had an opportunity to
evaluate all information regarding the Company as it has deemed necessary or
desirable in connection with the transactions contemplated by this Agreement,
has independently evaluated the transactions contemplated by this Agreement and
has reached its own decision to enter into this Agreement.
3.6 RESTRICTED SECURITIES. The Investor understands that the
Securities to be acquired by such Investor have not been registered under the
Securities Act or the laws of any state and may not be sold or transferred, or
otherwise disposed of, without registration under the Securities Act and
applicable state securities laws, or pursuant to an exemption therefrom. In the
absence of an effective registration statement covering the Securities to be
acquired by the Investor, the Investor will sell or transfer, or otherwise
dispose of, the Securities to be acquired by the Investor only in a manner
consistent with its representations and agreements set forth herein, the terms
and conditions set forth in the Basic Documents and any applicable federal and
state securities laws.
4. CONDITIONS OF EACH INVESTOR'S OBLIGATIONS AT CLOSING. The obligations
of each Investor to purchase the Securities pursuant to this Agreement are
subject to the fulfillment on or before the Closing of each of the following
conditions, the waiver of which shall not be effective against any Investor
unless the Investor has consented in writing thereto:
4.1 REPRESENTATIONS OF THIS AGREEMENT. The representations and
warranties of the Company contained in Section 2 shall be true and correct on
and as of the date of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
4.2 PERFORMANCE. The Company shall have performed and complied with
all agreements, obligations, and conditions contained in the Basic Documents
that are required to be performed or complied with by it on or before the
Closing.
4.3 CONSENTS AND WAIVERS. The Company shall have obtained any and all
consents and waivers necessary or appropriate for consummation of the
transactions contemplated by the Basic Documents.
4.4 STOCK CERTIFICATES. Each Investor shall have received a stock
certificate dated the date of the Closing for the number of shares of Common
Stock, respectively, set forth opposite such Investor's name on SCHEDULE A
hereto.
7
4.5 INTENTIONALLY OMITTED.
4.6 INFORMATION. The Investors shall have received and reviewed to
their reasonable satisfaction all information reasonably requested by the
Investors relating to the business of the Company, including all operational,
financial, legal, technological and other areas.
4.7 ORGANIZATIONAL DOCUMENTS. The Organizational Documents of the
Company then in effect shall be reasonably satisfactory to the Investors.
4.8 ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Company in connection with the transactions
contemplated by the Basic Documents and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Investors, and the
Investors and their counsel shall have received all such counterpart originals
or certified or other copies of such documents as they reasonably may request.
5. DEFINITIONS. All capitalized terms used in this Agreement shall have
the meanings assigned to them elsewhere in this Agreement or as specified below:
"ACCOMMODATION OBLIGATION" shall mean, as applied to any Person and without
duplication of amounts, any obligation of such Person guaranteeing or intended
to guarantee (whether guaranteed, endorsed, co-made, discounted, or sold with
recourse to such Person) any indebtedness, lease, dividend, letter of credit, or
other obligations ("primary obligation") of any Person in any manner whether
directly or indirectly, including any obligation of such Person or on behalf of
any other person (irrespective of whether contingent), or to otherwise assure or
hold harmless the owner of such primary obligation against loss in respect
thereof. The amount of any Accommodation Obligation shall be deemed to be an
amount equal to the maximum amount of a Person's liability with respect to the
stated or determinable amount of the primary obligation for which such
Accommodation Obligation is incurred.
"BASIC DOCUMENT" shall mean each of this Agreement, the Organizational
Documents, each as at any time amended and in effect from time to time.
"CAPITALIZED LEASE" shall mean any lease of an asset by the Company or any
subsidiary as lessee which would, in conformity with GAAP, be required to be
accounted for as a capital lease on the balance sheet of the Company or such
subsidiary.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the aggregate amount which in
accordance with GAAP is required to be reported as a liability on the balance
sheet of the Company or any subsidiary at such time in respect of its respective
interest as lessee under a Capitalized Lease.
"DEBT" shall mean, with respect to any Person, without duplication: (a) all
obligations of such Person for borrowed money; (b) all obligations of such
Person evidenced by bonds, debentures, notes, or other similar instruments; (c)
all obligations of such Person in respect of letters of credit, bankers
acceptances, interest rate swaps or other financial products or similar
instruments (including reimbursement with respect thereto), except such as have
been issued to secure payment of trade payables; (d) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
8
payables; (e) all Capitalized Lease Obligations of such Person; (f) all
obligations or liabilities of others secured by a lien on any asset owned by
such Person, whether or not such obligation or liability is assumed by such
Person; and (g) all Accommodation Obligations of such Person.
"GAAP" shall mean generally accepted accounting principles that are (i)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, (ii) applied on a basis
consistent with prior periods (except for changes in the application of such
principles that have been approved by the Company's Board of Directors), and
(iii) such that, insofar as the use of accounting principles is pertinent, a
certified public accountant could deliver an unqualified opinion with respect to
financial statements in which such principles have been properly applied,
subject, however, to the absence of footnotes.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
assets, condition (financial or otherwise), affairs, earnings, business,
operations or prospects of the Company and it subsidiaries on a consolidated
basis.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature, including, as appropriate, the Company or any subsidiary thereof.
6. MISCELLANEOUS.
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants of the Company and the Investors
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing and shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of the
Investors or the Company.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the parties
(including permitted transferees of any Securities sold hereunder). Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. The Company may not
assign or transfer any of its rights under this Agreement without the prior
written consent of the Investors. The Investors (or subsequent holder of any
Securities) may not assign or transfer any of its rights under this Agreement
without the prior written consent of the Company; PROVIDED, HOWEVER, that each
such permitted transferee or assignee shall be bound by the terms and conditions
of this Agreement and the other applicable Basic Documents pursuant to a written
instrument signed by such permitted transferee reasonably satisfactory to the
Company.
6.3 GOVERNING LAW. This Agreement and the other Basic Documents shall
be governed by, construed, applied and enforced in accordance with the laws of
the State of New York, including the Uniform Commercial Code, except that no
10
doctrine of choice of law shall be used to apply any law other than that of New
York, and no defense, counterclaim or right of set-off given or allowed by the
laws of any other state or jurisdiction, or arising out of the enactment,
modification or repeal of any law, regulation, ordinance or decree of any
foreign jurisdiction, shall be interposed in any action hereon.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or four (4)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature pages hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
6.7 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement,
including the Schedules and Exhibits hereto and thereto, and the other Basic
Documents constitutes the full and entire understanding and agreement between
the parties with regard to the subject hereof. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
two-thirds of the Securities then outstanding (on a fully diluted basis). Any
amendment or waiver effected in accordance with this Section 7.7 shall be
binding upon each holder of the Securities and the Company.
6.8 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.9 EXPENSES. The Company and the Investors shall each bear their
own expenses incurred on their behalf with respect to this Agreement and the
transactions contemplated hereby.
6.10 ATTORNEYS' FEES AND COSTS. With respect to any dispute relating
to this Agreement, or in the event that a suit, action, arbitration, or other
proceeding of any nature whatsoever, including, without limitation, any
proceeding under the U.S. Bankruptcy Code and involving issues peculiar to
federal bankruptcy law, any action seeking a declaration of rights or a suit for
rescission, is instituted to interpret or enforce this Agreement or any
provision of this Agreement, except as otherwise provided herein, the prevailing
party shall be entitled to recover from the losing party its reasonable
attorneys', paralegals', accountants', and other experts' and professional fees
and all other fees, costs, and expenses actually incurred and reasonably
necessary in connection therewith, as determined by the judge or arbitrator at
trial or other proceeding, or on any appeal or review, in additional to all
other amounts provided by law.
6.11 EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES. Upon
surrender by a holder of a Security to the Company of any certificate
representing a Security purchased or acquired hereunder, the Company at its
expense will issue in exchange therefor, and deliver to the holder of a
Security, a new certificate or certificates representing such shares, in such
denominations as may be requested by the holder of a Security. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of any certificate representing any a Security purchased or acquired
by a holder of a Security hereunder, and in case of any such loss, theft or
destruction, upon delivery of any indemnity agreement satisfactory to the
Company, or in case of any such mutilation, upon surrender and cancellation of
such certificate, the Company at its expense will issue and deliver to such
holder a new certificate for such Security of like tenor, in lieu of such lost,
stolen or mutilated certificate.
[Signatures begin on the following page.]
11
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
MARCO HI-TECH JV, LTD
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇▇ TARIFF
/s/ ▇▇▇▇▇ Tariff
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
GRQ CONSULTANTS, INC. 401K PLAN
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
[COUNTERPART SECURITIES PURCHASE
AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
INVESTOR:
▇▇▇▇▇ ▇▇▇▇▇ IRREVOCABLE TRUST
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
