NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Agreement") is made and entered
into by MSU Devices Inc., a Delaware corporation (the "Company"), Reddline
Ventures Inc., a Texas corporation ("Reddline"), each of the Secured Noteholders
(as defined in Section 2(a)) and each of the other purchasers listed on Annex I
hereto (collectively, and together with Reddline and the Secured Noteholders,
the "Investors"), on this 22nd day of March, 2002. The Company and the Investors
hereby agree as follows:
1. The Notes. The Company has authorized the issuance and sale, in
accordance with the terms hereof, of the Company's 11.5% Convertible Promissory
Notes in an aggregate original principal amount of up to $3,000,000 (the
"Notes") in the form set forth as Exhibit A hereto. Except as provided in
Section 6(a), the Notes shall be unsecured. In connection with and as a
condition to the purchase of any Notes hereunder, the Company shall enter into a
Registration Rights Agreement (the "Registration Rights Agreement") with the
Investors in the form attached hereto as Exhibit B and the Company, Reddline and
the Secured Noteholders shall enter into the Termination Agreement described in
Section 3(g). This Agreement, the Notes, the Registration Rights Agreement and
the Termination Agreement are sometimes referred to herein collectively as the
"Transaction Documents."
2. The Closings.
(a) Subject to the consummation of the Additional Financing described
in clause (i) of Section 6(a) hereof, the initial issuance, delivery, sale
and purchase of Notes shall take place at a closing (the "Initial Closing")
to be held on the date hereof at the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (or such other
place and time as shall be mutually agreed upon by the Company and
Reddline). At the Initial Closing, the Company agrees to issue, execute,
deliver and sell an aggregate principal amount of $637,500 of Notes to
Reddline and each of the other holders (the "Secured Noteholders") of the
Company's 10% Convertible Secured Promissory Notes (the "Secured Notes")
issued pursuant to that certain Secured Note Purchase Agreement (herein so
called) dated February 13, 2002 by and among the Company, Reddline and the
other purchasers party thereto, and, subject to and in reliance upon the
representations, warranties, terms and conditions contained herein,
Reddline and the Secured Noteholders agree to purchase such Notes from the
Company, at a price of $637,500, payable by delivery by Reddline and the
Secured Noteholders to the Company of Secured Notes in the aggregate
principal amount of $637,500. Upon delivery of such Secured Notes to the
Company, the Company shall pay to Reddline and the Secured Noteholders all
accrued and unpaid interest under such Secured Notes from February 13, 2002
through the date of this Agreement, whereupon the Company shall xxxx each
such Secured Note "Cancelled" and such Secured Note shall thereupon be
deemed to have been paid in full and shall be of no further force and
effect. At the Initial Closing, the Company also shall execute and deliver
the Registration Rights Agreement to Reddline and the Secured Noteholders
and the Company and Reddline shall execute and deliver the Termination
Agreement and the other documents described in Section 3(g) hereof.
(b) The issuance, delivery, sale and purchase of Notes pursuant to
each Additional Financing (as hereinafter defined) shall take place at a
closing (each, a "Subsequent Closing") to take place no later than the last
date by which such Additional Financing is required to be consummated
pursuant to Section 6(a). At each such Subsequent Closing, the Company may
sell up to the balance of the authorized principal amount of Notes set
forth in Section 1 hereof not sold at the Initial Closing or any prior
Subsequent Closing to the purchasers identified in Section 6(a) and such
purchasers as the Company shall select at a price equal to the principal
amount of such Notes. Each such purchaser shall, at the relevant Subsequent
Closing, become a party to this Agreement by executing and delivering a
counterpart signature page hereto in the form attached hereto as Annex II
(whereupon such purchaser's name shall be added to Annex I hereto), and the
Registration Rights Agreement by executing and delivering a counterpart
signature page thereto in the form attached as Schedule B thereto
(whereupon such purchaser's name shall be added to Schedule A thereto), and
shall have the rights and obligations hereunder and thereunder.
3. Conditions of Closing. The obligations of each Investor to purchase
Notes and consummate the transactions contemplated by this Agreement at the
Initial Closing or any Subsequent Closing shall be subject to the fulfillment,
on or before the date of such closing (each a "Closing Date"), of each of the
following conditions precedent:
(a) The sale and purchase of the Notes, the execution of this
Agreement and each other Transaction Document, and the consummation of the
transactions contemplated hereby and thereby shall have been approved by a
special committee of the Company established for such purpose and
consisting of Xxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Xxxxx, and such approval
shall have not been revoked or rescinded.
(b) The representations and warranties of the Company contained in
this Agreement, each Transaction Document and any other writing delivered
by the Company to such Investor pursuant hereto on or prior to the relevant
Closing Date shall be true and correct in all material respects on and as
of such Closing Date as though made on and as of such Closing Date.
(c) No event of default shall have occurred under the Notes or any
other Transaction Document (an "Event of Default"), and no event which,
with the giving of notice or the lapse of time or both, would constitute an
Event of Default, shall have occurred and be continuing on such Closing
Date or would result from the purchase of Notes on such Closing Date.
(d) The purchase of Notes and the consummation of the transactions
contemplated hereby on such Closing Date shall not contravene any law,
rule, regulation or judicial order, writ or decree applicable to the
Company or such Investor and any regulatory or governmental approval
necessary for the purchase of Notes by such Investor and/or the
consummation of the transactions contemplated hereby shall have been
obtained on terms and conditions acceptable to the Company and the
Investors.
2
(e) The Company shall have executed and delivered the Registration
Rights Agreement and such agreement shall be in full force and effect.
(f) With respect to each Subsequent Closing, the Investor(s) shall
have received a certificate, dated as of the date of such Subsequent
Closing and executed by an executive officer of the Company, certifying as
to the satisfaction of the conditions set forth in paragraphs (b) and (c)
of this Section 3.
(g) The Company, Reddline and the Secured Noteholders shall have
executed and delivered an agreement in the form attached hereto as Exhibit
C (the "Termination Agreement") terminating in full the Secured Note
Purchase Agreement and all documents, agreements and instruments executed
and delivered in connection therewith and the Secured Note Purchase
Agreement and all such documents, agreements and instruments shall be of no
further force and effect. In addition, Reddline shall have filed UCC-3
Termination Statements and shall have taken such other action as necessary
or appropriate to release all liens granted by the Company to Reddline, as
collateral agent, and the Investors pursuant to the Secured Note Purchase
Agreement. Finally, all Secured Notes issued to Reddline and the Secured
Noteholders pursuant to the Secured Note Purchase Agreement shall have been
surrendered to the Company in exchange for a Note or Notes and payment of
all accrued and unpaid interest thereon through the date hereof, and such
promissory notes shall be of no further force and effect.
4. [Reserved]
5. Representations and Warranties of the Company. The Company
represents and warrants to the Investors that:
(a) The Company (i) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, (ii) has and
at all times relevant hereto has had all requisite power and authority to
conduct its business as now conducted and as presently contemplated, to
execute and deliver this Agreement and the other Transaction Documents to
which it is a party and to consummate the transactions contemplated hereby
and thereby, (iii) is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the properties owned or
leased by it or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified would
not have a material adverse effect on the ability of the Company to perform
its obligations under this Agreement and the other Transaction Documents to
which it is a party.
(b) The execution, delivery and performance by the Company of this
Agreement and the other Transaction Documents to which it is a party (i)
have been duly authorized by all necessary corporate action on the part of
the Company, (ii) do not and will not contravene, any law or any
contractual restriction binding on or otherwise affecting the Company or
any of its properties, (iii) do not and will not result in or require the
creation of any lien, security interest or other charge or encumbrance upon
or with respect to any of the Company's properties (except as may be
created pursuant to Section 6(a)), and (iv) do not and will not result in
any suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to the Company's
operations or any of its properties.
3
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or other regulatory body, which
has not been received or made, is required in connection with the due
execution, delivery and performance by the Company of this Agreement or the
other Transaction Documents to which it is a party.
(d) Each of this Agreement and the other Transaction Documents to
which the Company is a party is a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
(e) There is no pending or, to the Company's knowledge, threatened
action, suit or proceeding affecting the Company before any court or other
governmental authority or any arbitrator which may materially adversely
affect the operations or condition, financial or otherwise, of the Company
or the ability of the Company to perform its obligations hereunder or under
the other Transaction Documents to which it is a party.
(f) The Company does not intend to use the proceeds from the sale of
the Notes directly or indirectly for personal, family, household or
agricultural purposes.
(g) The Company has filed all required forms, reports and documents
with the Securities and Exchange Commission (the "SEC") since January 1,
2001, each of which has complied in all material respects with all
applicable requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect on the
dates such forms, reports and documents were filed. None of such forms,
reports or documents, including any financial statements or schedules
included or incorporated by reference therein, contained, when filed, any
untrue statement of a material fact or omitted to state a material fact
required to be stated or incorporated by reference therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The consolidated financial statements
of the Company included in such forms, reports and documents complied as to
form in all material respects with applicable accounting requirements and
the rules and regulations of the SEC in respect thereof and fairly present,
in conformity with generally accepted accounting principles applied on a
consistent basis (except as indicated in the notes thereto), the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates thereof and their consolidated results of
operations and changes in financial position for the periods then ended
(subject, in the case of unaudited interim financial statements, to normal
year-end adjustments).
(h) MSU Operations (US) Inc. is a wholly-owned subsidiary of the
Company which has no assets and which does not conduct any business or
operations.
4
(i) With respect to the UCC-1 Financing Statements identified on the
list attached to Schedule 5(i) hereof, all indebtedness pursuant to which
such financing statements were filed has been paid or otherwise
extinguished in full and no further obligations remain outstanding which
would permit any person named as the secured party in any such financing
statement to exercise any right against any of the properties or assets of
the Company.
(j) The representations and warranties of the Company contained in
each of the Transaction Documents are true and correct.
6. Covenants of the Company.
From the date hereof and for so long as any Notes shall remain
outstanding, the Company covenants and agrees with the Investors that:
(a) Following the Initial Closing, the Company shall secure a minimum
of $1,362,500 additional funding in cash in accordance with the following
schedule (the "Additional Financings"):
(i) at least $200,000 to be funded not later than March 15, 2002;
(ii) at least $250,000 to be funded not later than May 1, 2002;
(iii) at least an additional $412,500 to be funded not later than
May 15, 2002; and
(iv) at least an additional $500,000 (or a total of at least
$1,362,500 in Additional Financings) shall be received by the
Company no later than June 10, 2002.
The Additional Financings shall be raised by the sale of Notes
evidencing the then unsold portion of the authorized principal amount of
Notes set forth in Section 1 hereof, or, alternatively, by the sale of
additional equity securities of the Company subordinate to the Notes.
In the event that the Company shall fail to raise the funds required
pursuant to clauses (i) through (iii) above by the dates specified therein,
then, in addition to any other remedies the Investors may half with respect
to such failure, the Company shall, upon request by Investors holding not
less than a majority in principal amount of the Notes then outstanding,
grant a security interest with respect to all Notes then outstanding
securing all obligations of the Company under such Notes with substantially
all of the assets of the Company, including intangible assets and
intellectual property, pursuant to a security agreement, financing
statements and such other documents as shall be deemed necessary or
appropriate, all in a form reasonably acceptable to the Investors.
5
(b) The Company will use its reasonable best efforts to consummate the
proposed issuance and sale of common stock, other equity or debt securities
of the Company to SouthWest Securities or other investors for gross
proceeds of at least $3,500,000, as currently being negotiated by the
Company and SouthWest Securities, on or prior to the Maturity Date (as
defined in the Notes).
(c) The Company shall preserve and maintain its corporate existence,
good standing and authority to transact business in all jurisdictions where
necessary for the proper conduct of its business, and shall maintain all of
its properties, rights, privileges and franchises necessary or desirable in
the normal conduct of its business. The Company shall not form or acquire
any subsidiary or make any investment in any other person or entity other
than (i) fundings in Web 2 U Limited, a wholly-owned subsidiary of the
Company, on an ongoing basis consistent with past practices for general
corporate purposes, including compensation of up to five employees, and
(ii) deposits in money market or similar accounts consistent with past
practices.
(d) Subject to applicable securities laws, the Company shall permit
each Investor, and its representatives, including any appraisers, auditors
and accountants selected by such Investor, to inspect any of the assets and
properties of the Company at any time during normal business hours and upon
prior written notice to the Company, as shall be reasonably requested by
such Investor. In addition, subject to applicable securities laws and upon
reasonable request, each Investor shall have the right, from time to time,
to audit the Company's books and records during normal business hours.
(e) The Company shall maintain its books and records in accordance
with generally accepted accounting principles. Subject to applicable
securities laws, the Company shall furnish each Investor, upon request,
such information and statements as such Investor shall reasonably request
from time to time regarding the business affairs, financial condition and
results of operations of the Company. Without limiting the generality of
the foregoing, the Company shall provide to the Investors, within 90 days
of the end of each fiscal quarter of the Company, unaudited consolidated
and consolidating financial statements with respect to such quarter and,
within 120 days after the end of each of the Company's fiscal years,
audited annual consolidated and consolidating financial statements with
respect to such fiscal year.
(f) The Company immediately shall notify each Investor in writing upon
becoming aware of the existence of any condition or circumstance that
constitutes an Event of Default or that would, with the giving of notice,
the passage of time or both, constitute an Event of Default. Any such
written notice shall specify the nature of such condition or circumstance,
the period of the existence thereof and the action that the Company
proposes to take with respect thereto.
(g) The Company promptly shall notify each Investor of any attachment
or any other legal process levied against the Company or any of its
subsidiaries and any action, suit, proceeding or other similar claim
initiated against the Company or any of its subsidiaries.
6
(h) The Company shall keep and maintain in full force and effect, at
its own expense and with financially secured and reputable insurance
companies, insurance with respect to its properties and assets in such
amounts, with such deductibles and covering such risks as is customarily
carried by companies engaged in the same or similar businesses and owning
similar properties and assets in localities where the Company operates.
(i) The Company shall file all tax reports and returns required to be
filed by it in the manner and at the times required by applicable law, and
shall pay all federal, state and local taxes and charges imposed upon it
when due.
(j) The Company shall conduct its business in compliance in all
material respects with all applicable laws, and shall maintain and comply
in all material respects with all licenses and permits required under any
such laws to conduct its business and perform its obligations hereunder.
(k) Except as provided in Section 6(a) and except as may be required
to consummate the transaction required by Section 6(b), without the prior
written consent of Investors holding at least a majority of the then
outstanding principal balance of the Notes, the Company shall not grant,
create or allow to exist any security interest, lien or other encumbrance
on any of its assets and properties and the Company shall not execute any
financing statement in favor of any Person.
(l) Except pursuant to the transaction contemplated by Section 6(b)
hereof, on and after the Initial Closing Date, the Company shall not incur
any debt for borrowed money or otherwise under any promissory note, bond,
indenture or similar instrument, or in connection with the obligations of
any person or entity (whether by guaranty, suretyship, purchase or
repurchase agreement or agreement to make investments or otherwise), other
than debt incurred pursuant to the Notes or debt incurred in the normal and
ordinary course of business consistent with past practice.
(m) The Company shall not become liable in connection with the debt of
any person or entity, whether by guarantee, surety, endorsement (other than
endorsement of negotiable instruments for collection in the ordinary course
of business), agreement to purchase or repurchase, agreement to make
investments, agreement to provide funds or maintain working capital, or any
agreement to assure a creditor against loss, other than in favor of the
Investors.
(n) The Company shall not declare, pay or issue any dividends or other
distributions in respect of its capital stock or distribute, reserve,
secure, or otherwise make or commit distributions on account of its capital
stock (other than dividends or distributions in respect of its capital
stock that are payable solely in shares of its capital stock or in options,
warrants or other rights to acquire capital stock, provided that such
capital stock (including capital stock underlying options, warrants or
other rights) is not, and is not convertible into any other security that
is, redeemable, and may not be redeemed, at any time prior to the Maturity
Date) or make any payment on account of the purchase, redemption or other
acquisition or retirement of any shares of the Company's capital stock.
7
(o) The Company shall not make any loans or advances to or for the
benefit of any officer, director, affiliate or shareholder of the Company
or any of its subsidiaries except advances for routine expense allowances
in the ordinary course of business. The Company shall not make any payment
on any obligation owing to any officer, director, shareholder, affiliate or
advisory board member of the Company, other than the payment of principal
and interest under the Notes in accordance with their terms.
(q) The Company shall not purchase or otherwise acquire assets from
any person or entity outside the ordinary course of business.
(r) Subject to the limitations herein, the Company shall use the
proceeds received from the sale of Notes hereunder only to retire the
outstanding Secured Notes and to fund the on-going operations of the
Company's business in the ordinary course and consistent with past
practices.
(s) The Company shall not sell, license, transfer or otherwise dispose
of any of its property or assets other than the sale of inventory or
non-exclusive licenses in the ordinary course of business, and the Company
shall not dissolve or liquidate or become a party to any merger (other than
a merger with an affiliate in connection with a reverse stock split,
holding company formation or similar recapitalization) or consolidation
with any person or entity.
(t) The Company shall keep and maintain its furniture, fixtures,
machinery and equipment in good operating condition and repair (normal wear
and tear excepted), and shall make all necessary repairs thereto so that
the value and operating efficiency thereof shall at all times be maintained
and preserved.
7. The Company shall use its reasonable efforts to effect the termination
of the UCC-1 Financing Statements identified on the list attached to Schedule
5(i) hereto as soon as is reasonably practicable.
(a) Representations and Warranties of the Investors. Each Investor,
severally and not jointly, represents and warrants to the Company that:
(b) It has full power and authority and has taken all required action
necessary to permit it to execute and deliver and to carry out the terms of
this Agreement and all other documents or instruments required hereby.
8
(c) This Agreement is a valid and binding obligation of it enforceable
in accordance with its terms, subject, as to enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium, reorganization and similar
laws affecting creditors' rights generally and to general equitable
principles.
(d) It acknowledges that it has had an opportunity to discuss the
business, affairs and current prospects of the Company with the Company's
officers. It further acknowledges having had access to information about
the Company that it has requested or considers necessary for purposes of
purchasing the Note(s). The foregoing, however, does not limit or modify
the representations and warranties of the Company contained in this
Agreement or any other Transaction Document or the right of the Investors
to rely thereon.
(e) It is its present intention to acquire the Note(s) purchased by
it, and any securities of the Company issuable upon any conversion of such
Note(s) (the "Conversion Securities"), for its own account and that such
Note(s) and such Conversion Securities are being or will be acquired by it
for the purpose of investment and not with a view to distribution. It
agrees that it will not sell or transfer any Note or Conversion Security
without registration under applicable federal and state securities laws, or
the availability of exemptions therefrom. It agrees that each Note, and
each certificate or other instrument representing Conversion Securities,
will bear a restrictive legend stating that the Note, or such Conversion
Securities, has not been registered under applicable federal and state
securities laws and referring to restrictions on its transferability and
sale, and any other legend required by applicable law or agreement.
(e) It is an "accredited investor" within the meaning of Rule 501
under the Securities Act of 1933, as amended (the "Act"). It has the
ability to bear the economic risks of its investment pursuant to this
Agreement. It understands that an investment in the Company involves
substantial risks and that the purchase of the Note(s) will be a highly
speculative investment. It is able, without impairing its financial
condition, to hold the Note(s) and the Conversion Securities for an
indefinite period and to suffer a complete loss of its investment. If such
Investor is not a resident of the United States, such investor also
represents and warrants that such Investor satisfies analogous "accredited
investor" requirements under the jurisdiction of its residence or otherwise
meets requirements that would permit the sale of Notes to such Investor
without qualification or registration in the jurisdiction in which such
Investor resides. Each such Investor also agrees to execute and deliver
such certificates or other evidence that the Company may request in
connection with the foregoing representation.
(f) It understands that the Note(s) and Conversion Securities may not
be sold, transferred, or otherwise disposed of without registration under
the Act or an exemption therefrom, and that, in the absence of an effective
registration statement covering the Note(s) or Conversion Securities, as
applicable, or an available exemption from registration under the Act, the
Note(s) or Conversion Securities must be held indefinitely.
8. Amendments, Waivers, Etc. This Agreement and the other Transaction
Documents may be amended and the provisions hereof and thereof may be waived
only by an instrument signed in writing by the Company and by Investors holding
at least a majority of the outstanding principal balance of the issued and
outstanding Notes.
9
9. Indemnification. The Company hereby agrees to indemnify and hold
harmless and defend all Indemnified Persons (as hereinafter defined) from and
against any and all Indemnified Claims (as hereinafter defined). THE FOREGOING
INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH INDEMNIFIED CLAIMS ARE IN ANY
WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF
STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR
OMISSION OF ANY INDEMNIFIED PERSON. Upon notification and demand, the Company
agrees to provide defense of any Indemnified Claim and to pay all reasonable
costs and expenses of counsel selected by any Indemnified Person in respect
thereof. Any Indemnified Person against whom any Indemnified Claim may be
asserted may, upon the prior written consent of the Company, not to be
unreasonably withheld, settle or compromise any such Indemnified Claim and the
obligations of such Indemnified Person, if any, pursuant to any such settlement
or compromise shall be deemed included within the Indemnified Claims. Except as
specifically provided in this section, the Company waives all notices from any
Indemnified Person. The provisions of this Section 9 shall survive the
termination of this Agreement. As used in this Section 9, "Affiliate" means,
with respect to any person or entity, any other person or entity that directly
or indirectly controls, or is controlled by or under common control with, such
person or entity; "Indemnified Claims" means any and all claims, demands,
actions, causes of action, judgments, liabilities, damages and consequential
damages, penalties, fines, costs, fees, expenses and disbursements (including,
without limitation, reasonable fees and expenses of attorneys and other
professional consultants and experts in connection with any investigation or
defense) of every kind, known or unknown, existing or hereafter arising,
foreseeable or unforeseeable, which may be imposed upon, threatened or asserted
against or incurred or paid by any Indemnified Person at any time and from time
to time, because of, resulting from, in connection with or arising out of any
transaction, act, omission, event or circumstance in any way connected with the
Transaction Documents (including but not limited to enforcement of an Investor's
rights thereunder or the defense of an Investor's actions thereunder), excluding
with respect to any Indemnified Persons, any of the foregoing resulting from
such Indemnified Person's gross negligence, breach of the Transaction Documents,
violation of applicable law or willful misconduct; and "Indemnified Persons"
means each Investor and each of their respective officers, directors, employees
and Affiliates.
10. Choice of Law. This Agreement shall be governed by, and construed
in accordance with, the law of the State of Texas, except as required by
mandatory provisions of law.
11. Expenses. The Company and each Investor shall bear its own costs
and expenses in connection with the negotiation, execution and delivery of the
Transaction Documents and the consummation of the transactions contemplated
thereby.
12. Parties in Interest. The terms and provisions of this Agreement
shall be binding upon and inure to the benefit of, and be enforceable by, the
respective successors and assigns of the parties hereto. The Company may not
assign or delegate its rights or obligations hereunder without the prior written
consent of the Investors. This Agreement shall not run to the benefit of or be
enforceable by any person other than a party to this Agreement and its
successors and assigns.
10
13. Discretionary Actions. Except as otherwise expressly provided
herein or in any other Transaction Document, any action permitted or provided to
be taken or omitted by an Investor hereunder or under any other Transaction
Document may be taken or omitted, as the case may be, by such Investor in its
sole and absolute discretion, and any consent or waiver required of an Investor
or determination to be made by an Investor hereunder or under any other
Transaction Document may be given, withheld or made, as the case may be, by such
Investor in its sole and absolute discretion.
14. Headings. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience and reference only and do not
constitute a part of this Agreement.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
16. NO OTHER AGREEMENTS. THIS AGREEMENT AND THE OTHER WRITTEN
AGREEMENTS DESCRIBED HEREIN AND DELIVERED IN CONNECTION HEREWITH REPRESENT THE
FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION OR AMENDMENT OF
OR SUPPLEMENT TO THIS AGREEMENT OR TO ANY SUCH OTHER WRITTEN AGREEMENT SHALL BE
VALID OR EFFECTIVE UNLESS THE SAME IS IN WRITING AND SIGNED BY THE PARTIES
REQUIRED BY THIS AGREEMENT OR SUCH OTHER WRITTEN AGREEMENT.
[Signature pages follow]
11
IN WITNESS WHEREOF, the undersigned have executed this Note Purchase
Agreement as of the date first above written.
MSU DEVICES, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx,
Vice President and
Chief Financial Officer
REDDLINE VENTURES INC.
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, President
12
