Exhibit 4.1.4
COMMON STOCK PURCHASE AGREEMENT
-------------------------------
COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of November
9, 2004, by and among LINSANG PARTNERS, LLC ("LINSANG"), LINSANG INTERNATIONAL
L.P. ("LINSANG INTERNATIONAL"); and ALLEGIANT CAPITAL GROUP, LLC ("ALLEGIANT").
Linsang, Linsang International are hereinafter sometimes collectively referred
to as the "LINSANG GROUP." Allegiant is hereinafter sometimes referred to as the
"PURCHASER."
WHEREAS:
A. The Linsang Group are major stockholders of LMIC, Inc. (the "COMPANY"),
a corporation organized under the laws of the State of Delaware. Shares of the
Common Stock of the Company, $0.001 par value per share (the "COMMON STOCK") are
quoted on the OTC Bulletin Board under the symbol LMII.OB.
B. The Linsang Group and the Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Section 4(1) of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
C. The Company and the Purchaser are concurrently entering into a
Subscription Agreement of even date herewith (the "SUBSCRIPTION AGREEMENT")
pursuant to which the Company will issue and sell to the Purchaser, and the
Purchaser will purchase from the Company, an aggregate of 333,333 shares of the
Common Stock of the Company (the "SHARES") and warrants to purchase shares of
the Company's Common Stock (the COMMON STOCK").
D. The parties hereto agree that concurrently with the closing under the
Subscription Agreement, the Linsang Group will sell to the Purchaser, and the
Purchaser will purchase from the Linsang Group, shares of the Common Stock on
the terms and conditions set forth below.
E. Contemporaneous with the execution and delivery of this Agreement and
the Subscription Agreement, the Company, the Purchaser are executing and
delivering a Registration Rights Agreement in the form attached to the
Subscription Agreement as Exhibit C, pursuant to which the Company has agreed to
provide certain registration rights under the Securities Act and the rules and
regulations promulgated thereunder, and applicable state securities laws.
NOW, THEREFORE, the Linsang Group and the Purchaser hereby agree as
follows:
1
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the terms AGREEMENT, COMMON STOCK,
COMPANY, PURCHASER, SECURITIES ACT, SUBSCRIPTION AGREEMENT, SHARES, WARRANTS and
LINSANG GROUP shall have the meanings set forth above, the term ALLEGIANT COMMON
SHARES, shall have the meaning set forth in Section 2(a) below, and the terms
CLOSING and CLOSING DATE shall have the meanings set forth in Section 2(b)(iii)
below.
2. PURCHASE AND SALE OF ALLEGIANT COMMON SHARES.
(a) Generally. Except as otherwise provided in this Section 2 and subject
to the satisfaction (or waiver) of the conditions set forth in Section 6 and
Section 7 below, on the Closing Date, Allegiant shall purchase from the Linsang
Group an aggregate of 666,667 shares of Common Stock (the "ALLEGIANT COMMON
SHARES") for cash in the amount of $0.01 per share, and the Linsang Group shall
sell the Allegiant Common Shares to Allegiant in such respective amounts as
among the Linsang Group as shall be set forth on the signature page of this
Agreement.
(b) Purchase of Allegiant Common Shares; Form of Payment; Closing Date.
(i) On the Closing Date (as defined below), the Linsang Group shall
sell the Allegiant Shares to Allegiant, and Allegiant shall purchase such
Allegiant Common Shares from the Linsang Group and pay to the Linsang Group
$6,667 as the purchase price of such Allegiant Common Shares. The Linsang Group
shall deliver to the Purchaser stock certificates registered in the name of the
Purchaser evidencing their respective record ownership of the Allegiant Common
Shares by a date that shall be not later than five (5) days following the
Closing Date. Notwithstanding the foregoing deliveries or any other provision of
this Agreement to the contrary, the Purchaser shall, for all purposes, be deemed
to be the record and beneficial owners of the aforesaid Allegiant Common Shares
as at the Closing Date described below.
(ii) The Purchaser shall pay the purchase price for the Allegiant
Common Shares to be purchased by it to the Linsang Group against delivery by the
Linsang Group of certificates representing such shares duly endorsed for
transfer to the Purchaser, and the Linsang Group shall deliver such certificates
to the Purchaser against delivery by the Purchaser of the purchase price.
(iii) Subject to the satisfaction (or waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of the
sale of the Allegiant Common Shares pursuant to this Agreement (the "CLOSING")
shall be concurrent with the Closing under the Subscription Agreement or such
other date or time as the Purchaser and the Linsang Group may mutually agree
("CLOSING DATE"). The Closing shall occur at the New York offices of Allegiant,
or at such other place as the Purchaser and the Linsang Group may otherwise
mutually agree.
2
3. THE PURCHASER REPRESENTATIONS AND WARRANTIES.
The Purchaser severally and not jointly represents and warrants to the
Linsang Group as follows:
(a) Organization, Good Standing and Qualification. The Purchaser is a
limited partnership duly organized, validly existing and in good standing under
the laws of its state of organization and has all the requisite power and
authority to carry on its business as now conducted and as proposed to be
conducted.
(b) Purchase for Own Account. The Purchaser is purchasing the Allegiant
Common Shares for the Purchaser's own account and not with a present view
towards the distribution thereof. The Purchaser understands that the Purchaser
must bear the economic risk of this investment indefinitely, unless the
Allegiant Common Shares are registered pursuant to the Securities Act and any
applicable state securities or blue sky laws or an exemption from such
registration is available, and that the Company has no present intention of
registering any of the Allegiant Common Shares other than as contemplated by the
Registration Rights Agreement. Notwithstanding anything in this Section 3(b) to
the contrary, by making the foregoing representation, the Purchaser does not
agree to hold the Allegiant Common Shares for any minimum or other specific term
and reserves the right to dispose of the Allegiant Common Shares at any time in
accordance with or pursuant to a registration statement or an exemption from
registration under the Securities Act and any applicable state securities laws.
(c) Information. The Purchaser has been furnished all materials relating
to the business, finances and operations of the Company and its subsidiaries and
materials relating to the offer and sale of the Allegiant Common Shares, which
have been requested by the Purchaser. The Purchaser has been afforded the
opportunity to ask questions of the Company and has received what the Purchaser
believes to be satisfactory answers to any such inquiries. The Purchaser
understands that its investment in the Allegiant Common Shares involves a high
degree of risk. Neither such inquiries nor any other due diligence investigation
conducted by the Purchaser or its counsel or any of its representatives shall
modify, amend or affect the Purchaser's right to rely on the Linsang Group's
representations and warranties contained in Section 4 below.
(d) Governmental Review. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Allegiant Common
Shares.
(e) Accredited Investor Status. The Purchaser is an "Accredited Investor"
as that term is defined in Rule 501(a) of Regulation D.
(f) Authorization; Enforcement. The Purchaser has the requisite power and
authority to enter into and perform its obligations under this Agreement and to
purchase the Allegiant Common Shares in accordance with the terms hereof. This
Agreement has been duly and validly authorized, executed and delivered on behalf
of the Purchaser and is a valid and binding agreement of the Purchaser
enforceable against the Purchaser in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity).
3
(g) Restrictions on Transfer. The Purchaser understand and acknowledge
that the Allegiant Common Shares have not been registered under the Securities
Act. Unless and until otherwise permitted, the Allegiant Common Shares and each
certificate and other document evidencing any of the Allegiant Common Shares
shall be endorsed with the legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT, (B) IN COMPLIANCE WITH RULE 144 UNDER SUCH
ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO
REGISTRATION IS REQUIRED FOR SUCH TRANSFER."
4. REPRESENTATIONS AND WARRANTIES OF THE LINSANG GROUP.
Each member of the Linsang Group hereby severally represents and warrants
to the Purchaser as follows:
(a) Organization and Power. Each member of the Linsang Group is duly
organized and validly existing under the laws of their respective state of
organization. Each Linsang Group member has full legal capacity to enter into
this Agreement and the other documents contemplated hereby to which such Linsang
Group member is a party, and to perform its obligations hereunder and
thereunder.
(b) Authorization. The execution, delivery and performance by each member
of the Linsang Group of this Agreement and the other documents contemplated
hereby to which such Linsang Group member is a party and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all requisite action, and no other act or proceeding on the part
of the Linsang Group member is necessary to authorize the execution, delivery or
performance of this Agreement or the other documents contemplated hereby to
which such Linsang Group member is a party and the consummation of the
transactions contemplated hereby or thereby. This Agreement has been duly
executed and delivered by the Linsang Group member and this Agreement
constitutes, and the other documents contemplated hereby to which the Linsang
Group member is a party upon execution and delivery by the Purchaser will each
constitute, a valid and binding obligation of such Linsang Group member,
enforceable in accordance with its terms.
4
(c) Absence of Conflicts. Neither the execution and the delivery of this
Agreement and the other documents contemplated hereby to which the Linsang Group
member is a party, nor the consummation of the transactions contemplated hereby
and thereby, will (a) conflict with, result in a breach of any of the provisions
of, (b) constitute a default under, (c) result in the violation of, (d) give any
third party the right to terminate or to accelerate any obligation under, (e)
result in the creation of any lien upon the Allegiant Common Shares under, or
(f) require any authorization, consent, approval, execution or other action by
or notice to any court or other governmental body or any person under, any
indenture, mortgage, lease, loan agreement or other agreement or instrument to
which the Linsang Group member is bound or affected, or any statute, regulation,
rule, judgment, order, decree or other restriction of any government,
governmental agency or court to which the Linsang Group member is subject.
(d) Litigation. There are no actions, suits, proceedings, orders or
investigations pending or, to the best of the Linsang Group's knowledge,
threatened against or affecting the Linsang Group member, at law or in equity,
or before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
would adversely affect the Linsang Group member's performance under this
Agreement, the other documents contemplated hereby to which the Linsang Group
member is a party or the consummation of the transactions contemplated hereby or
thereby.
(e) Allegiant Common Shares. Upon delivery at Closing of certificates
representing the Allegiant Common Shares, good and valid title to the Allegiant
Common Shares will pass to the Purchaser free and clear of any liens or
restrictions of any kind.
(f) Disclosure. Neither this Article 4 nor any document delivered by such
Linsang Group member to the Purchaser on the Closing Date contains or, on the
Closing Date, will contain, when taken as a whole, any untrue statement of a
material fact or omits a material fact necessary to make the statements
contained herein not misleading
5. COVENANTS.
(a) Satisfaction of Conditions. The parties shall use their best efforts
to satisfy in a timely manner each of the conditions set forth in Section 6 and
Section 7 of this Agreement.
(b) Blue Sky Laws. The Linsang Group shall, on or before the Closing Date,
take such action as the Linsang Group members shall reasonably determine is
necessary to qualify the Allegiant Common Shares for sale to the Purchaser
pursuant to this Agreement under applicable securities or "blue sky" laws of the
applicable states of the United States or obtain exemption therefrom, and shall
provide evidence of any such action so taken to the Purchaser on or prior to the
Closing Date.
6. CONDITIONS TO THE LINSANG GROUP"S OBLIGATION TO SELL.
The obligation of the Linsang Group hereunder to issue and sell Allegiant
Common Shares to a Purchaser at the Closing hereunder is subject to the
satisfaction, at or before the Closing Date, of each of the following conditions
thereto; provided, however, that these conditions are for the Linsang Group's
sole benefit and may be waived by any Linsang Group member at any time in its
sole discretion.
5
(a) The applicable Purchaser shall have executed the signature page to
this Agreement and the Registration Rights Agreement, and delivered the same to
the Linsang Group.
(b) The representations and warranties of the applicable Purchaser shall
be true and correct 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 specific date, which representations and warranties shall be true and
correct as of such date), and the applicable Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the applicable Purchaser at or prior to the Closing Date.
(c) No statute, rule, regulation, executive order, decree, ruling,
injunction; action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
(d) All of the conditions to the obligations of the Company to sell the
Shares and Warrants to the Purchaser under the Subscription Agreements shall
have been satisfied, and the Company shall have received the proceeds from the
sale of the Shares and Warrants under such Subscription Agreements.
7. CONDITIONS TO THE PURCHASER'S OBLIGATION TO PURCHASE ALLEGIANT COMMON SHARES.
The obligation of the Purchaser hereunder to purchase the Allegiant Common
Shares to be purchased by it hereunder is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in such Purchaser's sole discretion:
(a) The Linsang Group shall have executed the signature pages to this
Agreement and delivered the same to the Purchaser.
(b) The representations and warranties of the Linsang Group shall be true
and correct 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
specific date, which representations and warranties shall be true and correct as
of such date) and the Linsang Group shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Linsang
Group at or prior to the Closing Date.
6
(c) No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
(d) All of the conditions to the obligations of the Purchaser to purchase
the Shares and Warrants from the Company under the Subscription Agreement shall
have been satisfied.
8. MISCELLANEOUS.
(a) Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. Each of the parties
irrevocably agrees that any and all suits or proceedings based on or arising
under this Agreement may be brought only in the shall be resolved in the federal
or state courts located in the City of New York, New York and consents to the
jurisdiction of such courts for such purpose. Each of the parties irrevocably
waives the defense of an inconvenient forum to the maintenance of such suit or
proceeding in any such court. Each of the parties further agrees that service of
process upon such party mailed by first class mail to the address set forth in
Section 8(f) shall be deemed in every respect effective service of process upon
such party in any such suit or proceeding. Nothing herein shall affect the right
of a Purchaser to serve process in any other manner permitted by law. Each of
the parties agrees that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
(b) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
(c) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
7
(e) Entire Agreement; Amendments; Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Linsang Group nor the
Purchaser make any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be waived or amended
other than by an instrument in writing signed by the Linsang Group and by the
Purchaser. Any waiver by the Purchaser, on the one hand, or the Linsang Group,
on the other hand, of a breach of any provision of this Agreement shall not
operate as or be construed to be a waiver of any other breach of such provision
of or any breach of any other provision of this Agreement. The failure of the
Purchaser, on the one hand, or the Linsang Group, on the other hand to insist
upon strict adherence to any term of this Agreement on one or more occasions
shall not be considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
(f) Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by certified or registered mail (return receipt
requested) or delivered personally or by courier or by confirmed telecopy, and
shall be effective five days after being placed in the mail, if mailed, or upon
receipt or refusal of receipt, if delivered personally or by courier or
confirmed telecopy, in each case addressed to a party. The addresses for such
communications shall be:
If to the Linsang Group
Linsang Partners, LLC
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇
▇▇▇▇ ▇▇, Chairman
If to Allegiant:
c/o Allegiant Capital Group, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Each party hereto may from time to time change its address or facsimile number
for notices under this Section 8 by giving at least ten (10) days' prior written
notice of such changed address or facsimile number, in the case of the Purchaser
to the Linsang Group, and in the case of the Linsang Group to all of the
Purchaser.
(g) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns. The Linsang
Group shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Purchaser.
(h) Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and their respective permitted successors and assigns, and
is not for the benefit of nor may any provision hereof be enforced by any other
person.
8
(i) Survival. The representations and warranties of the Linsang Group and
the agreements and covenants of the Linsang Group shall survive the Closing
notwithstanding any due diligence investigation conducted by or on behalf of the
Purchaser. Moreover, none of the representations and warranties made by the
Linsang Group herein shall act as a waiver of any rights or remedies a Purchaser
may have under applicable federal or state securities laws. The Linsang Group
agrees to indemnify and hold harmless the Purchaser and each of their managers,
officers, directors, employees, partners, members, agents and affiliates for
loss or damage relating to the Allegiant Common Shares purchased hereunder
arising as a result of or related to any breach by the Linsang Group or any of
its representations or covenants set forth herein, including advancement of
expenses as they are incurred.
(j) Further Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(k) Termination. In the event that the Closing Date shall not have
occurred on or before November 9, 2004, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date. Notwithstanding
any termination of this Agreement, any party not in breach of this Agreement
shall preserve all rights and remedies it may have against another party hereto
for a breach of this Agreement prior to or relating to the termination hereof.
(l) Joint Participation in Drafting. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement. As such, the
language used herein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement.
(m) Equitable Relief. Each party acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by such party of the provisions of this Agreement, that the
other parties shall be entitled, in addition to all other available remedies, to
an 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.
(n) Determinations. Except as otherwise expressly provided herein, all
consents, approvals and other determinations to be made by the Purchaser
pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement prior to the Closing Date to be binding upon a
Purchaser shall be made by such Purchaser and except as otherwise expressly
provided herein, all consents, approvals and other determinations (other than
amendments to the terms and provisions of this Agreement) to be made by the
Purchaser pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement after the Closing Date shall be made by the
Purchaser.
9
(o) Attorneys' Fees and Disbursements. If any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the prevailing
party or parties shall be entitled to receive from the other party or parties
reasonable attorneys' fees and disbursements in addition to any other relief to
which the prevailing party or parties may be entitled.
[balance of this page intentionally left blank]
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
ALLEGIANT COMMON SHARES TO BE SOLD
THE LINSANG GROUP: ALLEGIANT COMMON SHARES
LINSANG PARTNERS, LLC
____________ shares
BY:___________________________
LINSANG INTERNATIONAL L.P.
____________ shares
BY:___________________________ 666,667 SHARES
THE PURCHASER:
ALLGIANT CAPITAL GROUP, LLC,
By:___________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
11
