EXCHANGE AGREEMENT
THIS
EXCHANGE AGREEMENT (this “Agreement”) is dated as of September 21, 2007, by and
among Glowpoint, Inc., a Delaware corporation (the “Company”), and the holders
of shares of the Company’s Series B Convertible Preferred Stock whose signatures
appear on the signature page attached hereto (each a “Holder” and collectively
the “Holders”).
Preliminary
Statement
WHEREAS,
each Holder currently holds shares of Series B Convertible Preferred Stock
of
the Company, par value $0.0001 per share and stated value $24,000 per share
(“Series B Preferred Stock”), convertible into shares of the Company’s common
stock, par value $0.0001 per share (“Common Stock”), at a conversion price of
$1.67 per share (the “Series B Preferred Shares”) issued pursuant to that
certain Exchange Agreement, dated as of January 22, 2004, by and among the
Company and the Holders (the “Series B Exchange Agreement”);
WHEREAS,
subject to the terms and conditions set forth herein, the Company and the
Holders desire to (i) cancel and retire the Series B Preferred Shares, to
forfeit any and all rights under the Series B Exchange Agreement and the
Certificate of Designations, Preferences and Rights of Series B Preferred Stock
filed with the Delaware Secretary of State on January 22, 2004 (including,
without limitation, the right to receive accrued but unpaid dividends on the
Series B Preferred Shares, which dividends shall be exchanged into Series C
Preferred Stock (as defined below) subject to and in accordance with the terms
of this Agreement), and (ii) surrender an aggregate of 1,525,000 shares of
Common Stock held by the Holders (the “Common Shares”), each in exchange for
shares of Series C Convertible Preferred Stock, par value $0.0001 per share,
stated value $10,000 per share (the “Series C Preferred Stock”). The Series C
Preferred Stock and the shares of Common Stock issuable upon conversion of
the
Series C Preferred Stock are sometimes collectively referred to herein as the
“Securities”.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby agreed and acknowledged, the parties hereby agree as
follows:
1. Securities
Exchange.
(a) Upon
the
following terms and subject to the conditions contained herein, the Holders
agree to deliver to the Company the Series B Preferred Shares and the Common
Shares in exchange for the Series C Preferred Stock. In consideration of and
in
express reliance upon the representations, warranties, covenants, terms and
conditions of this Agreement, (i) each Series B Preferred Share shall be
exchanged for 2.4 validly issued, fully paid and non-assessable shares of Series
C Preferred Stock; (ii) all accrued but unpaid dividends on the Series B
Preferred Shares shall be exchanged into that number of validly issued, fully
paid and non-assessable shares of Series C Preferred Stock as is determined
by
dividing the actual amount of such accrued but unpaid dividends by $10,000,
and
(iii) all of the Common Shares shall be exchanged for an aggregate of 76.25
validly issued, fully paid and non-assessable shares of Series C Preferred
Stock.
(b) The
closing under this Agreement (the “Closing”) shall take place at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ upon the satisfaction of each of the conditions set forth in Sections
4
and 5 hereof (the “Closing Date”).
(c) At
the
Closing, the Holders shall deliver to the Company for cancellation all
certificates evidencing the Series B Preferred Shares and the Common Shares,
or
an indemnification undertaking with respect to such certificates in the event
of
the loss, theft or destruction of such certificates. At the Closing, the Company
shall issue to the Holders the Series C Preferred Stock, each in the amounts
set
forth on Exhibit A attached hereto. At the Closing, the Series B Exchange
Agreement shall terminate and be of no further force and effect.
2. Representations,
Warranties and Covenants of the Holders.
Each of
the Holders hereby makes the following representations and warranties to the
Company, and covenants for the benefit of the Company, with respect solely
to
itself and not with respect to any other Holder:
(a) If
a
Holder is an entity, such Holder is a corporation, limited liability company
or
partnership duly incorporated or organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization.
(b) This
Agreement has been duly authorized, validly executed and delivered by each
Holder and is a valid and binding agreement and obligation of each Holder
enforceable against such Holder in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy
or
other laws affecting the enforcement of creditors’ rights generally, and each
Holder has full power and authority to execute and deliver the Agreement and
the
other agreements and documents contemplated hereby and to perform its
obligations hereunder and thereunder.
(c) Each
Holder understands that the Securities are being offered and sold to it in
reliance on specific provisions of Federal and state securities laws and that
the Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of each Holder set
forth herein for purposes of qualifying for exemptions from registration under
the Securities Act of 1933, as amended (the “Securities Act”) and applicable
state securities laws.
(d) Each
Holder is an “accredited investor” as defined under Rule 501 of Regulation D
promulgated under the Securities Act.
(e) Each
Holder is and will be acquiring the Securities for such Holder’s own account,
for investment purposes, and not with a view to any resale or distribution
in
whole or in part, in violation of the Securities Act or any applicable
securities laws; provided,
however,
that by
making the representations herein, such Holder does not agree to hold the
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with Federal and state
securities laws applicable to such disposition.
(f) The
offer
and sale of the Securities is intended to be exempt from registration under
the
Securities Act, by virtue of Section 3(a)(9) and/or 4(2) thereof. Each Holder
understands that the Securities purchased hereunder are “restricted securities,”
as that term is defined in the Securities Act and the rules thereunder, have
not
been registered under the Securities Act, and that none of the Securities can
be
sold or transferred unless they are first registered under the Securities Act
and such state and other securities laws as may be applicable or the Company
receives an opinion of counsel reasonably acceptable to the Company that an
exemption from registration under the Securities Act is available (and then
the
Securities may be sold or transferred only in compliance with such exemption
and
all applicable state and other securities laws).
2
(g) Each
Holder owns and holds, beneficially and of record, the entire right, title,
and
interest in and to the Series B Preferred Shares and the Common Shares set
forth
opposite such Holder’s name on Exhibit A, free and clear of all rights and
Encumbrances (as defined below). Each Holder has full power and authority to
vote, transfer and dispose of the Series B Preferred Shares and Common Shares
set forth opposite such Holder’s name on Exhibit A, free and clear of any right
or Encumbrance other than restrictions under the Securities Act and applicable
state securities laws. Other than the transactions contemplated by this
Agreement, there is no outstanding vote, plan, pending proposal, or other right
of any person to acquire all or any of the Series B Preferred Shares or Common
Shares set forth opposite such Holder’s name on Exhibit A. “Encumbrances” shall
mean any security or other property interest or right, claim, lien, pledge,
option, charge, security interest, contingent or conditional sale, or other
title claim or retention agreement, interest or other right or claim of third
parties, whether perfected or not perfected, voluntarily incurred or arising
by
operation of law, and including any agreement (other than this Agreement) to
grant or submit to any of the foregoing in the future.
3. Representations,
Warranties and Covenants of the Company.
The
Company represents and warrants to each Holder, and covenants for the benefit
of
each Holder, as follows:
(a) The
Company has been duly incorporated and is validly existing and in good standing
under the laws of the state of Delaware, with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
currently conducted, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such registration
or
qualification, except where the failure to register or qualify would not have
a
Material Adverse Effect. For purposes of this Agreement, “Material Adverse
Effect” shall mean any material adverse effect on the business, operations,
properties, prospects, or financial condition of the Company and its
subsidiaries and/or any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of the Company
to
perform any of its obligations under this Agreement in any material
respect.
(b) The
Securities have been duly authorized by all necessary corporate action and,
when
paid for or issued in accordance with the terms hereof, the Securities shall
be
validly issued and outstanding, fully paid and nonassessable, free and clear
of
all liens, encumbrances and rights of refusal of any kind.
(c) This
Agreement has been duly authorized, validly executed and delivered on behalf
of
the Company and is a valid and binding agreement and obligation of the Company
enforceable against the Company in accordance with its terms, subject to
limitations on enforcement by general principles of equity and by bankruptcy
or
other laws affecting the enforcement of creditors’ rights generally, and the
Company has full power and authority to execute and deliver the Agreement and
the other agreements and documents contemplated hereby and to perform its
obligations hereunder and thereunder.
3
(d) The
execution and delivery of the Agreement and the consummation of the transactions
contemplated by this Agreement by the Company, will not (i) conflict with or
result in a breach of or a default under any of the terms or provisions of,
(A)
the Company’s certificate of incorporation or by-laws, or (B) of any material
provision of any indenture, mortgage, deed of trust or other material agreement
or instrument to which the Company is a party or by which it or any of its
material properties or assets is bound, (ii) result in a violation of any
provision of any law, statute, rule, regulation, or any existing applicable
decree, judgment or order by any court, Federal or state regulatory body,
administrative agency, or other governmental body having jurisdiction over
the
Company, or any of its material properties or assets or (iii) result in the
creation or imposition of any material lien, charge or encumbrance upon any
material property or assets of the Company or any of its subsidiaries pursuant
to the terms of any agreement or instrument to which any of them is a party
or
by which any of them may be bound or to which any of their property or any
of
them is subject except in the case of clauses (i)(B), (ii) or (iii) for any
such
conflicts, breaches, or defaults or any liens, charges, or encumbrances which
would not have a Material Adverse Effect.
(e) The
delivery and issuance of the Securities in accordance with the terms of and
in
reliance on the accuracy of each Holder’s representations and warranties set
forth in this Agreement will be exempt from the registration requirements of
the
Securities Act.
(f) Except
for the filing of the Certificate of Designations, Preferences and Rights of
Series C Preferred Stock (the “Certificate of Designation”), no consent,
approval or authorization of or designation, declaration or filing with any
governmental authority on the part of the Company is required in connection
with
the valid execution and delivery of this Agreement or the offer, sale or
issuance of the Securities or the consummation of any other transaction
contemplated by this Agreement.
(g) The
Company has complied and will comply with all applicable federal and state
securities laws in connection with the offer, issuance and delivery of the
Securities hereunder. Neither the Company nor anyone acting on its behalf,
directly or indirectly, has or will sell, offer to sell or solicit offers to
buy
any of the Securities, or similar securities to, or solicit offers with respect
thereto from, or enter into any preliminary conversations or negotiations
relating thereto with, any person, or has taken or will take any action so
as to
bring the issuance and sale of any of the Securities under the registration
provisions of the Securities Act and applicable state securities laws. Neither
the Company nor any of its affiliates, nor any person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) in connection
with
the offer or sale of any of the Securities.
(h) The
Company represents that it has not paid, and shall not pay, any commissions
or
other remuneration, directly or indirectly, to any Holder or to any third party
for the solicitation of the exchange of the Series B Preferred Shares or Common
Shares pursuant to this Agreement.
4
(i) The
Company covenants and agrees that promptly following the Closing Date, all
outstanding Series B Preferred Shares will be cancelled and retired by the
Company.
(j) There
is
no action, suit, claim, investigation or proceeding pending or, to the knowledge
of the Company, threatened against the Company which questions the validity
of
this Agreement or the transactions contemplated hereby or any action taken
or to
be taken pursuant thereto. There is no action, suit, claim, investigation or
proceeding pending or, to the knowledge of the Company, threatened, against
or
involving the Company or any subsidiary, or any of their respective properties
or assets which, if adversely determined, is reasonably likely to result in
a
Material Adverse Effect.
(k) The
authorized capital stock of the Company and the shares thereof issued and
outstanding as of September 21, 2007 are set forth on Schedule
3(l)
attached
hereto. All of the outstanding shares of the Company’s Common Stock have been
duly and validly authorized, and are fully paid and non-assessable. Except
as
set forth in this Agreement or on Schedule
3(l)
attached
hereto, as of December 31, 2006, no shares of Common Stock are entitled to
preemptive rights and there are no registration rights or outstanding options,
warrants, scrip, rights to subscribe to, call or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares
of
capital stock of the Company. The Company is not a party to, and its executive
officers have no knowledge of, any agreement restricting the voting or transfer
of any shares of the capital stock of the Company. The Company has furnished
or
made available to the Holders true and correct copies of the Company’s
certificate of incorporation as in effect on the date hereof, and the Company’s
bylaws as in effect on the date hereof.
(l) Prior
to
registration of the shares of Common Stock underlying the Series C Preferred
Stock under the Securities Act, all such certificates shall bear the restrictive
legend specified in Section 6 of this Agreement. Subject to any applicable
State
and Federal Securities laws, the Company warrants that the Securities shall
be
freely transferable on the books and records of the Company as and to the extent
provided in this Agreement. If a Holder provides the Company with an opinion
of
counsel, in form, substance and scope reasonably acceptable to the Company,
to
the effect that a public sale, assignment or transfer of the Securities may
be
made without registration under the Securities Act or the Holders provide the
Company with reasonable assurances that the Securities can be sold pursuant
to
Rule 144 without any restriction as to the number of securities acquired as
of a
particular date that can then be immediately sold, the Company shall permit
the
transfer and promptly instruct its transfer agent to issue one
or
more certificates in such name and in such denominations as specified by the
Holders and without any restrictive legend. The Company acknowledges that a
breach by it of its obligations under this Section 3(m) will cause irreparable
harm to the Holders by vitiating the intent and purpose of the transaction
contemplated hereby. Accordingly, the Company acknowledges that the remedy
at
law for a breach of its obligations under this Section 3(m) will be
inadequate and agrees, in the event of a breach or the Holders’ reasonable
perception of a threatened breach by the Company of the provisions of this
Section 3(m), that the Holders shall be entitled, in addition to all other
available remedies, to an order and/or injunction restraining any breach and
requiring immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being
required.
5
4. Conditions
Precedent to the Obligation of the Company to Issue the Series C Preferred
Stock.
The
obligation hereunder of the Company to issue and deliver the Series C Preferred
Stock to each Holder is subject to the satisfaction or waiver, at or before
the
Closing Date, of each of the conditions set forth below. These conditions are
for the Company’s sole benefit and may be waived by the Company at any time in
its sole discretion.
(a) Each
Holder shall have executed and delivered this Agreement.
(b) Each
Holder shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to
be
performed, satisfied or complied with by such Holder at or prior to the Closing
Date.
(c) The
representations and warranties of each Holder shall be true and correct in
all
material respects as of the date when made and as of the Closing Date as though
made at that time, except for representations and warranties that are expressly
made as of a particular date, which shall be true and correct in all material
respects as of such date.
5. Conditions
Precedent to the Obligation of the Holders to Accept the Series C Preferred
Stock.
The
obligation hereunder of each Holder to accept the Series C Preferred Stock
is
subject to the satisfaction or waiver, at or before the Closing Date, of each
of
the conditions set forth below. These conditions are for each Holder’s sole
benefit and may be waived by each Holder at any time in its sole
discretion.
(a) The
Company shall have executed and delivered this Agreement.
(b) The
Company shall have filed the Certificate of Designation with the Delaware
Secretary of State, in substantially the form attached hereto as Exhibit
B.
(c) The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Agreement to
be
performed, satisfied or complied with by the Company at or prior to the Closing
Date.
(d) Each
of
the representations and warranties of the Company shall be true and correct
in
all material respects as of the date when made and as of the Closing Date as
though made at that time, except for representations and warranties that speak
as of a particular date, which shall be true and correct in all material
respects as of such date.
(e) No
statute, regulation, executive order, decree, ruling or injunction shall have
been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any
of
the transactions contemplated by this Agreement at or prior to the Closing
Date.
(f) As
of the
Closing Date, no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, shall be pending against
or
affecting the Company, or any of its properties, which questions the validity
of
the Agreement or the transactions contemplated thereby or any action taken
or to
be taken pursuant thereto. As of the Closing Date, no action, suit, claim or
proceeding before or by any court or governmental agency or body, domestic
or
foreign, shall be pending against or affecting the Company, or any of its
properties, which, if adversely determined, is reasonably likely to result
in a
Material Adverse Effect.
6
(g) No
Material Adverse Effect shall have occurred at or before the Closing
Date.
(h) The
Company shall have delivered on the Closing Date to the Holders a secretary’s
certificate, dated as of the Closing Date, as to (i) the resolutions of the
board of directors of the Company authorizing the transactions contemplated
by
this Agreement, (ii) the Company’s certificate of incorporation, (iii) the
Company’s bylaws, each as in effect at the Closing, and (iv) the authority and
incumbency of the officers of the Company executing this Agreement.
6. Legend.
Each
certificate representing the Securities shall be stamped or otherwise imprinted
with a legend substantially in the following form (in addition to any legend
required by applicable state securities or “blue
sky”
laws):
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “SECURITIES”)
HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES
ACT”)
OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF
UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS OR GLOWPOINT, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE
PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.”
The
Company agrees to reissue certificates representing any of the Securities,
without the legend set forth above if at such time, prior to making any transfer
of any such Securities, such holder thereof shall give written notice to the
Company describing the manner and terms of such transfer and removal as the
Company may reasonably request, and provided the conditions set forth in this
paragraph shall have been met. Such proposed transfer will not be effected
until: (a) the Company has either (i) received an opinion of counsel that the
registration of the Securities is not required in connection with such proposed
transfer; or (ii) filed a registration statement under the Securities Act
covering such proposed disposition has been filed by the Company with the
Securities and Exchange Commission, which registration statement has become
effective under the Securities Act; and (b) the Company has received an opinion
of counsel that either: (i) the registration or qualification under the
securities or “blue sky” laws of any state is not required in connection with
such proposed disposition, or (ii) compliance with applicable state securities
or “blue sky” laws has been effected. The Company will use reasonable efforts to
respond to any such notice from a Holder within five (5) business days. In
the
case of any proposed transfer under this Section 6, the Company will use
reasonable efforts to comply with any such applicable state securities or “blue
sky” laws, but shall in no event be required, in connection therewith, to
qualify to do business in any state where it is not then qualified or to take
any action that would subject it to tax or to the general service of process
in
any state where it is not then subject. The restrictions on transfer contained
in this Section 6 shall be in addition to, and not by way of limitation of,
any
other restrictions on transfer contained in any other section of this
Agreement.
7
7. Fees
and Expenses.
Each
party shall pay the fees and expenses of its advisors, counsel, accountants
and
other experts, if any, and all other expenses, incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this
Agreement, provided,
however,
that
the Company shall pay reasonable attorneys’ fees and expenses (exclusive of
disbursements and out-of-pocket expenses) incurred by the Holders in connection
with the preparation, negotiation, execution and delivery of this Agreement
and
the other transaction documents.
8. Registration
Rights.
The
Holders are entitled to the benefit of certain registration rights with respect
to the shares of Common Stock issuable upon conversion of the Series C Preferred
Stock pursuant to that certain Registration Rights Agreement, dated as of March
31, 2006, as amended on the date hereof, by and among the Company and persons
listed on Schedule I thereto.
9. Indemnification.
(a) The
Company hereby agrees to indemnify and hold harmless each Holder and its
officers, directors, shareholders, members, managers, employees, agents and
attorneys against any and all losses, claims, damages, liabilities and
reasonable expenses (collectively “Claims”)
incurred by each such person in connection with defending or investigating
any
such Claims, whether or not resulting in any liability to such person, to which
any such indemnified party may become subject, insofar as such Claims arise
out
of or are based upon any breach of any representation or warranty or agreement
made by the Company in this Agreement.
(b) Each
Holder hereby agrees to indemnify and hold harmless the Company and its
officers, directors, shareholders, members, managers, employees, agents and
attorneys against any and all Claims incurred by each such person in connection
with defending or investigating any such Claims, whether or not resulting in
any
liability to such person, to which any such indemnified party may become
subject, insofar as such Claims arise out of or are based upon any breach of
any
representation or warranty or agreement made by such Holder in this
Agreement.
10. Governing
Law; Consent to Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York without giving effect conflicts of law principles that
would result in the application of the substantive laws of another jurisdiction.
Each of the parties consents to the exclusive jurisdiction of the Federal courts
whose districts encompass any part of the County of New York located in the
City
of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. Each party waives its right to a trial by
jury. Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by registered
or
certified mail, postage prepaid, to such party at its address set forth herein.
Nothing herein shall affect the right of any party to serve process in any
other
manner permitted by law.
8
11. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, express overnight courier, registered first
class mail, or telecopier (provided that any notice sent by telecopier shall
be
confirmed by other means pursuant to this Section 11), initially to the address
set forth below, and thereafter at such other address, notice of which is given
in accordance with the provisions of this Section.
(a) if
to the
Company:
Glowpoint,
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
and
General
Counsel
Glowpoint,
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇
P.C.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) if
to the
Holders:
At
the
address of such Holder set forth on Exhibit A to this Agreement;
with
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
All
such
notices and communications shall be deemed to have been duly given: when
delivered by hand, if personally delivered; when receipt is acknowledged, if
telecopied; or when actually received or refused if sent by other
means.
9
12. Confidentiality.
Each
Holder acknowledges and agrees that the existence of this Agreement and the
information contained herein and in the Exhibits hereto is of a confidential
nature and shall not, without the prior written consent of the Company, be
disclosed by such Holder to any person or entity, other than such Holder’s
personal financial and legal advisors for the sole purpose of evaluating an
investment in the Company, and that it shall not, without the prior written
consent of the Company, directly or indirectly, make any statements, public
announcements or release to trade publications or the press with respect to
the
subject matter of this Agreement. Each Holder further acknowledges and agrees
that the information contained herein and in the other documents relating to
this transaction may be regarded as material non-public information under United
States federal securities laws, and that United States federal securities laws
prohibit any person who has received material non-public information relating
to
the Company from purchasing or selling securities of the Company, or from
communicating such information to any person under circumstances in which it
is
reasonably foreseeable that such person is likely to purchase or sell securities
of the Company. Accordingly, until such time as any such non-public information
has been adequately disseminated to the public, each Holder shall not purchase
or sell any securities of the Company, or communicate such information to any
other person.
13. Entire
Agreement.
This
Agreement constitutes the entire understanding and agreement of the parties
with
respect to the subject matter hereof and supersedes all prior and/or
contemporaneous oral or written proposals or agreements relating thereto all
of
which are merged herein. This Agreement may not be amended or any provision
hereof waived in whole or in part, except by a written amendment signed by
both
of the parties.
14. Counterparts.
This
Agreement may be executed by facsimile signature and in counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10
IN
WITNESS WHEREOF, this Agreement was duly executed on the date first written
above.
| GLOWPOINT, INC | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Signature
Page to Exchange
Agreement
IN
WITNESS WHEREOF, this Agreement was duly executed on the date first written
above.
| [HOLDER] | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
Signature
Page to Exchange
Agreement
EXHIBIT
A
|
Name
and Address of Holder
|
Number
of
Common
Shares
|
Number
of
Series
B
Preferred
Shares
|
Amount
of Accrued but Unpaid
Dividends
|
Number
of
Shares
of
Series
C
Preferred
Stock
|
EXHIBIT
B
CERTIFICATE
OF DESIGNATION