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EXHIBIT 4.1
UNITS PURCHASE AGREEMENT
DATED AS OF MARCH 22, 2000
AMONG
CAM DATA SYSTEMS, INC.
AND
THE PURCHASERS LISTED ON EXHIBIT A
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TABLE OF CONTENTS
PAGE
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ARTICLE I Purchase and Sale of Stock..............................................................................1
Section 1.1 Purchase and Sale of Stock.............................................................1
Section 1.2 The Common Shares and Warrant Shares...................................................1
Section 1.3 Purchase Prices, Execution and Closing.................................................2
Section 1.4 Escrow.................................................................................2
Section 1.5 Warrants...............................................................................2
ARTICLE II Representations and Warranties.........................................................................3
Section 2.1 Representation and Warranties of the Company...........................................2
Section 2.2 Representations and Warranties of the Purchasers......................................12
ARTICLE III Covenants............................................................................................12
Section 3.2 Registration and Listing..............................................................12
Section 3.3 Inspection Rights.....................................................................12
Section 3.4 Compliance with Laws..................................................................13
Section 3.5 Keeping of Records and Books of Account...............................................13
Section 3.6 Reporting Requirements................................................................13
Section 3.7 Amendments............................................................................13
Section 3.8 Other Agreements......................................................................13
Section 3.9 Distributions.........................................................................13
Section 3.10 Intentionally Omitted.................................................................17
Section 3.11 Intentionally Omitted.................................................................14
Section 3.12 Regulation S...........................................................................2
Section 3.13 Right of First Refusal................................................................14
Section 3.14 Reservation of Shares.................................................................15
Section 3.15 Transfer Agent Instructions...........................................................15
Section 3.16 Transfer or Resale.....................................................................2
ARTICLE IV Conditions............................................................................................16
Section 4.1 Conditions Precedent to the Obligation of the
Company to Sell the Units at each Closing..........................................16
Section 4.2 Conditions Precedent to the Obligation of the Purchasers to Purchase
the Units at each Closing.........................................................16
ARTICLE V Registration Rights....................................................................................18
ARTICLE VI Stock Certificate Legend..............................................................................19
Section 6.1 Legend................................................................................19
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TABLE OF CONTENTS (CONT'D)
PAGE
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ARTICLE VII Termination..........................................................................................20
Section 7.1 Termination by Mutual Consent.........................................................20
Section 7.2 Other Termination. ...................................................................20
Section 7.3 Termination of Closing................................................................20
Section 7.4 Effect of Termination.................................................................20
ARTICLE VIII Indemnification.....................................................................................20
Section 8.1 General Indemnity.....................................................................20
Section 8.2 Indemnification Procedure.............................................................21
ARTICLE IX Miscellaneous.........................................................................................22
Section 9.1 Fees and Expenses.....................................................................22
Section 9.2 Specific Enforcement, Consent to Jurisdiction.........................................22
Section 9.3 Entire Agreement; Amendment...........................................................23
Section 9.5 Waivers...............................................................................24
Section 9.6 Headings..............................................................................24
Section 9.7 Successors and Assigns................................................................24
Section 9.8 No Third Party Beneficiaries..........................................................24
Section 9.9 Governing Law.........................................................................24
Section 9.10 Survival..............................................................................24
Section 9.11 Counterparts..........................................................................25
Section 9.12 Publicity.............................................................................25
Section 9.13 Severability..........................................................................25
Section 9.14 Further Assurances....................................................................25
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UNITS PURCHASE AGREEMENT
This UNITS PURCHASE AGREEMENT (the "Agreement") is dated as of March
22, 2000, by and among CAM Data Systems, Inc., a corporation organized under the
laws of the State of Delaware (the "Company") (NASDAQ: "CADA"), and each of the
Purchasers whose names are set forth on Exhibit A hereto (individually, a
"Purchaser" and collectively, the "Purchasers").
WHEREAS, the parties desire that, upon the terms and subject
to the conditions contained herein, the Company shall issue and sell to the
Purchasers and the Purchasers shall purchase up to $8,000,000 of units (the
"Units"), each Unit consisting of (i) one share (a "Common Share") of the
Company's common stock, .$001 par value per share (the "Common Stock"), and (ii)
one warrant to purchase seven-tenths of a Common Share (singularly a "Warrant"
and collectively, the "Warrants"), in substantially the form attached hereto as
Exhibit B; and;
WHEREAS, such purchase and sale will be made in reliance upon
the provisions of Section 4(2) and Rule 506 of Regulation D ("Regulation D") of
the United States Securities Act of 1933 as amended, and regulations promulgated
thereunder (the "Securities Act"), or upon such other exemption from the
registration requirements of the Securities Act as may be available with respect
to any or all of the purchases of Units to be made hereunder.
The parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
Section 1.1 Purchase and Sale of Units. Upon the following terms and
subject to the conditions contained herein, the Company shall issue and sell to
the Purchasers and each of the Purchasers shall purchase from the Company the
Units, at a price per unit equal to the greater of (i) the average of the
closing bid prices of the Common Stock during the sixty (60) consecutive trading
days ending on the trading day immediately preceding the Tranche I Closing Date
(as defined hereinafter) and (ii) $16.00. The aggregate purchase price for the
Units shall be $8,000,000 payable in two tranches consisting of $4,000,000 each.
Section 1.2 The Common Shares and Warrant Shares. The Company has
authorized and has reserved and covenants to continue to reserve, free of
preemptive rights and other similar contractual rights of stockholders, a
sufficient number of its authorized but unissued shares of its Common Stock, to
effect the issuance of the Common Shares and exercise of the Warrants. Any
shares of Common Stock issuable upon exercise of the Warrants (and such shares
when issued) are herein referred to as the "Warrant Shares". The Common Shares
and the Warrant Shares are sometimes collectively referred to as the "Shares".
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Section 1.3 Purchase Prices, Execution and Closing. In consideration of
and in express reliance upon the representations, warranties, covenants, terms
and conditions of this Agreement, the Company agrees to issue and sell to the
Purchasers and the Purchasers, severally but not jointly, agree to purchase the
Common Shares and Warrants exercisable for that number of Warrant Shares set
forth opposite their respective names on Exhibit A. The aggregate purchase price
of the Common Shares and the Warrants being acquired by each Purchaser is set
forth opposite such Purchaser's name on Exhibit A (each a "Purchase Price", and
collectively referred to as the "Purchase Prices"). The closing of the purchase
and sale of the first tranche of the Units (the "Tranche I Closing") to be
acquired by the Purchasers from the Company shall take place at the offices of
Xxxxxx Xxxxxx LLP, The Chrysler Building, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 10:00 a.m. E.S.T. on (i) the date on which the last to be
fulfilled or waived of the conditions set forth in Article IV hereof and
applicable to the Tranche I Closing shall be fulfilled or waived in accordance
herewith or (ii) such other time and place or on such date as the Purchasers and
the Company may agree upon (the "Tranche I Closing Date"). The closing of the
purchase and sale of the second tranche of $4,000,000 (the "Tranche II Closing")
shall occur within seven (7) days after the Registration Statement (as defined
in the Registration Rights Agreement) has been declared effective (the
"Effectiveness Date") by the Securities and Exchange Commission (the Tranche II
Closing Date"). Each of the Tranche I Closing and the Tranche II Closing are
sometimes referred to as a "Closing" and each of the Tranche I Closing Date and
the Tranche II Closing Date are sometimes referred to as a "Closing Date".
Section 1.4 Escrow. On or before each Closing Date, (a) the Company
shall execute and deliver to the escrow agent (the "Escrow Agent") identified in
the Escrow Agreement attached hereto as Exhibit C (the "Escrow Agreement") all
applicable agreements, documents, instruments and writings required pursuant to
Section 4.2 herein (collectively, the "Closing Documents"), to be delivered by
the Company including, without limitation, certificates for the number of Common
Shares set forth opposite each Purchaser's name on Exhibit A, as applicable,
registered in such Purchaser's name and such Purchaser's Warrants and (b) each
of the Purchasers shall pay by wire transfer of immediately available funds into
escrow in accordance with the Escrow Agreement such Purchaser's Purchase Price,
as applicable, and execute and deliver all applicable agreements, documents,
instruments and writings required pursuant to Section 4.1, to be delivered by
such Purchaser. In regard to each Closing, the Escrow Agent shall give notice
(by telephone or other means) (an "Escrow Agent Notice") to the parties hereto
when the Escrow Agent has received all of the Closing Documents and wire
transfer the funds constituting the Purchase Prices and deliver the other
Closing Documents to the Company pursuant to the terms of the Escrow Agreement.
As soon thereafter as is practicable on each Closing Date, the Escrow Agent
shall deliver the Company Closing Documents to the Purchasers, including
applicable certificates for the Common Shares and the Warrants.
Section 1.5 Warrants. The Warrants shall be divided into separate
warrants and shall be designated callable and non-callable Warrants. The Warrant
Shares subject to the Warrants shall be divided equally among the non-callable
and callable Warrants. Each of the Warrants shall be exercisable for a period of
five (5) years from the date of issuance of such Warrants commencing on the date
six(6) months from the date of issuance and the exercise price of each of the
Warrants shall be equal to the Warrant Price (as defined in the Warrant).
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representation and Warranties of the Company. The Company
hereby makes the following representations and warranties to the Purchasers:
(a) Organization, Good Standing and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power to own,
lease and operate its properties and assets and to conduct its business as it is
now being conducted and to enter into this Agreement and to perform its
obligations hereunder. The Company does not have any subsidiaries or own
securities of any kind in any other entity. The Company is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary except for any jurisdiction(s) (alone or in the
aggregate) in which the failure to be so qualified will not have a Material
Adverse Effect (as defined hereinafter) on the Company's financial condition.
For the purposes of this Agreement, "Material Adverse Effect" means any adverse
effect on the business, operations, properties, prospects, or financial
condition of the Company and which is material on a consolidated basis to such
entity or other entities controlling or controlled by such entity.
(b) Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and perform this Agreement, the
Escrow Agreement, the Registration Rights Agreement attached hereto as Exhibit D
(the "Registration Rights Agreement"), and the Warrants (collectively, the
"Transaction Documents") and to issue and sell the Shares in accordance with the
terms hereof and the Warrants. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required. This Agreement has been duly executed and delivered by the Company.
The Registration Rights Agreement will have been duly executed and delivered by
the Company on or before the Tranche I Closing Date. Each of the Transaction
Documents constitutes, or shall constitute when executed and delivered, a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership or similar laws relating to, or affecting
generally the enforcement of, creditor's rights and remedies or by other
equitable principles of general application.
(c) Capitalization. The authorized capital stock of the
Company and the shares thereof currently issued and outstanding as of March 14,
2000 are set forth on Schedule 2.1(c) hereto. All of the outstanding shares of
the Company's Common Stock and any other security of the Company have been duly
and validly authorized. Except as set forth in this Agreement, the Registration
Rights Agreement, the SEC Documents (as hereinafter defined) and as set forth on
Schedule 2.1(c) hereto, no shares of Common Stock or any other securities issued
by the Company are entitled to preemptive rights or registration rights and
there are no outstanding options, warrants, scrip, rights to subscribe to, call
or commitments of any character
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whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company. Furthermore, except as set forth in this Agreement
and the Registration Rights Agreement and as set forth on the SEC Documents,
there are no contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of the capital
stock of the Company or options, securities or rights convertible into shares of
capital stock of the Company. Except for customary transfer restrictions
contained in agreements entered into by the Company in order to sell restricted
securities or as provided on the SEC Documents), the Company is not a party to
any agreement granting registration or anti-dilution rights to any person with
respect to any of its equity or debt securities. The Company is not a party to,
and it has no knowledge of, any agreement restricting the voting or transfer of
any shares of the capital stock of the Company. Except as set forth on the SEC
Documents, the offer and sale of all capital stock, convertible securities,
rights, warrants, or options of the Company issued prior to the Tranche I
Closing complied with all applicable federal and state securities laws, and no
stockholder has a right of rescission or damages with respect thereto which
would have a Material Adverse Effect on the Company's financial condition or
operating results. The Company has furnished or made available to the Purchasers
true and correct copies of the Company's Articles of Incorporation as in effect
on the date hereof (the "Articles"), and the Company's Bylaws as in effect on
the date hereof (the "Bylaws").
(d) Issuance of Shares. The Common Shares to be issued at each
Closing have been duly authorized by all necessary corporate action and, when
paid for or issued in accordance with the terms hereof, the Common Shares shall
be validly issued and outstanding, fully paid and nonassessable and entitled to
all applicable rights and preferences set forth in the Articles. When the Common
Shares and the Warrant Shares are issued in accordance with the terms of this
Agreement and as set forth in the Warrants, respectively, such shares will be
duly authorized by all necessary corporate action and validly issued and
outstanding, fully paid and non-assessable, and the holders shall be entitled to
all rights accorded to a holder of Common Stock.
(e) No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated herein and therein do not (i) violate any
provision of the Company's Articles or Bylaws, (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, mortgage, deed of trust,
indenture, note, bond, license, lease agreement, instrument or obligation to
which the Company is a party, (iii) create or impose a lien, charge or
encumbrance on any property of the Company under any agreement or any commitment
to which the Company is a party or by which the Company is bound or by which any
of its respective properties or assets are bound, or (iv) result in a violation
of any federal, state, local or foreign statute, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any property or asset of the Company are
bound or affected, except, in all cases other than violations pursuant to clause
(i) above, for such conflicts, defaults, terminations, amendments, acceleration,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect. The business of the Company is not being
conducted in violation of any laws, ordinances or regulations of any
governmental entity, except for possible violations which singularly or in the
aggregate do not and will not have a Material Adverse Effect. The Company
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is not required under federal, state or local law, rule or regulation to obtain
any consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under the Transaction Documents, or issue and sell the
Common Shares and the Warrant Shares in accordance with the terms hereof or
thereof (other than any filings which may be required to be made by the Company
with the Commission or state securities administrators subsequent to a Closing,
and any registration statement which may be filed pursuant hereto); provided
that, for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Purchasers herein.
(f) Commission Documents, Financial Statements. The Company
has provided to the Purchasers prior to the date hereof copies of its annual
report on Form 10-K for the fiscal year ended September 30, 1999, its quarterly
reports for the fiscal quarters ended March 31, 1999, June 30, 1999, and
December 31, 1999 (all such documents are collectively referred to herein as the
"SEC Documents"). The Company has not provided to the Purchasers any material
non-public information or other information which, according to applicable law,
rule or regulation, should have been disclosed publicly by the Company but which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement. The financial statements of the Company included
in the SEC Documents comply as to form and substance in all material respects
with applicable accounting requirements and the published rules and regulations
of the Commission or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of unaudited
interim statements, to the extent they may not include footnotes or may be
condensed or summary statements), and fairly present in all material respects
the financial position of the Company as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(g) Intentionally Omitted.
(h) No Material Adverse Change. Since December 31, 1999, the
Company has not experienced or suffered any Material Adverse Effect.
(i) No Undisclosed Liabilities. The Company does not have any
liabilities, obligations, claims or losses (whether liquidated or unliquidated,
secured or unsecured, absolute, accrued, contingent or otherwise) other than
those incurred in the ordinary course of the Company's business since December
31, 1999, and which, individually or in the aggregate, do not or would not have
a Material Adverse Effect.
(j) No Undisclosed Events or Circumstances. No event or
circumstance has occurred or exists with respect to the Company or its business,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed.
(k) Intentionally Omitted.
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(l) Intentionally Omitted.
(m) Actions Pending. Except as set forth in the SEC Documents,
(i) 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 hereto or thereto, other than routine claims and
suits regarding system installations which in the aggregate will not have a
Material Adverse Effect on the Company; (ii) 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 of its properties or assets
other than routine claims and suits regarding system installations which in the
aggregate will not have a Material Adverse Effect on the Company; and (iii)
there are no outstanding orders, judgments, injunctions, awards or decrees of
any court, arbitrator or governmental or regulatory body against the Company or
any officers or directors of the Company in their capacities as such.
(n) Compliance with Law. The business of the Company has been
and is presently being conducted in accordance with all applicable federal,
state and local governmental laws, rules, regulations and ordinances, except
such that, individually or in the aggregate, do not cause a Material Adverse
Effect. The Company has all franchises, permits, licenses, consents and other
governmental or regulatory authorizations and approvals necessary for the
conduct of its business as now being conducted by it unless the failure to
possess such franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(o) Taxes. The Company has accurately prepared and filed all
federal, state and other tax returns required by law to be filed by it, has paid
or made provisions for the payment of all taxes shown to be due and all
additional assessments, and adequate provisions have been and are reflected in
the financial statements of the Company for all current taxes and other charges
to which the Company is subject and which are not currently due and payable.
None of the federal income tax returns of the Company have been audited by the
Internal Revenue Service. The Company has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
pending or threatened against the Company for any period, nor of any basis for
any such assessment, adjustment or contingency.
(p) Certain Fees. The Company has not employed any broker or
finder or incurred any liability for any brokerage or investment banking fees,
commissions, finders' or structuring fees, financial advisory fees or other
similar fees in connection with the Transaction Documents, except as set forth
on Schedule 2.1(p) hereto. All those entities listed on Schedule 2.1(p) hereto
are broker/dealers (i) registered and in good standing with the National
Association of Securities Dealers, Inc. and (ii) registered pursuant to Section
15 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(q) Disclosure. To the best of the Company's knowledge,
neither this Agreement or the Schedules hereto nor any other documents,
certificates or instruments furnished to the Purchasers by or on behalf of the
Company in connection with the transactions contemplated by this Agreement
contain any untrue statement of a material fact or omit to state a
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material fact necessary in order to make the statements made herein or therein,
in the light of the circumstances under which they were made herein or therein,
not misleading.
(r) Intentionally Omitted.
(s) Intentionally Omitted.
(t) Intentionally Omitted.
(u) Intentionally Omitted.
(v) Intentionally Omitted.
(w) Securities Act of 1933. The Company has complied and will
comply with all applicable federal and state securities laws in connection with
the offer, issuance and sale of the Common Shares and the Warrants 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 the Common Shares, the
Warrants 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 the Common Shares and the Warrants under the registration
provisions of the Securities Act and any other applicable federal and 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 the Common Shares and the Warrants.
(x) Governmental Approvals. Except for the filing of any
notice prior or subsequent to the Closings that may be required under applicable
state or federal securities laws (which if required, shall be filed on a timely
basis), including, but not limited to, the filing of a registration statement or
statements pursuant to the Registration Rights Agreement, no authorization,
consent, approval, license exemption of, filing or registration with any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or will be necessary for, or in
connection with, the execution or delivery of the Common Shares, or for the
performance by the Company of its obligations under the Transaction Documents.
(y) Intentionally Omitted.
(z) Absence of Certain Developments. Except as provided in
Schedule 2.1(z) hereto, since December 31, 1999, the Company has not:
(i) issued any stock, bonds or other corporate securities or
any rights, options or warrants with respect thereto;
(ii) borrowed any amount or incurred or become subject to any
liabilities (absolute or contingent) except current liabilities incurred in the
ordinary course of business which are comparable in nature and amount to the
current liabilities incurred in the ordinary course of business during the
comparable portion of its prior fiscal year, as adjusted to reflect the
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current nature and volume of the Company's business;
(iii) discharged or satisfied any lien or encumbrance or paid
any obligation or liability (absolute or contingent), other than current
liabilities paid in the ordinary course of business;
(iv) declared or made any payment or distribution of cash or
other property to stockholders with respect to its stock, or purchased or
redeemed, or made any agreements so to purchase or redeem, any shares of its
capital stock;
(v) sold, assigned or transferred any other tangible assets,
or canceled any debts or claims, except in the ordinary course of business;
(vi) sold, assigned or transferred any patent rights,
trademarks, trade names, copyrights, trade secrets or other intangible assets or
intellectual property rights, or disclosed any proprietary confidential
information to any person except to customers in the ordinary course of business
or to the Purchasers or their representatives;
(vii) suffered any substantial losses or waived any rights of
material value, whether or not in the ordinary course of business, or suffered
the loss of any material amount of prospective business;
(viii) made any changes in employee compensation except in the
ordinary course of business and consistent with past practices;
(ix) made capital expenditures or commitments therefor that
aggregate in excess of $300,000;
(x) entered into any other transaction other than in the
ordinary course of business, or entered into any other material transaction,
whether or not in the ordinary course of business;
(xi) made charitable contributions or pledges in excess of
$25,000;
(xii) suffered any material damage, destruction or casualty
loss, whether or not covered by insurance;
(xiii) experienced any material problems with labor or
management in connection with the terms and conditions of their employment; or
(xiv) entered into an agreement, written or otherwise, to take
any of the foregoing actions.
(aa) Use of Proceeds. The proceeds from the sale of the Common
Shares and the Warrants will be used by the Company for working capital and
general corporate purposes.
(bb) Public Utility Holding Company Act and Investment Company
Act Status. The Company is not a "holding company" or a "public utility company"
as such terms are
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defined in the Public Utility Holding Company Act of 1935, as amended. The
Company is not, and as a result of and immediately upon any Closing will not be,
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(cc) ERISA. No liability to the Pension Benefit Guaranty
Corporation has been incurred with respect to any Plan by the Company which is
or would be materially adverse to the Company. The execution and delivery of
this Agreement and the issue and sale of the Common Shares and the Warrants will
not involve any transaction which is subject to the prohibitions of Section 406
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Internal Revenue Code of 1986, as amended, provided that, if any of
the Purchasers, or any person or entity that owns a beneficial interest in any
of the Purchasers, is an "employee pension benefit plan" (within the meaning of
Section 3(2) of ERISA) with respect to which the Company is a "party in
interest" (within the meaning of Section 3(14) of ERISA), the requirements of
Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met. As used in this
Section 2.1(ac), the term "Plan" shall mean an "employee pension benefit plan"
(as defined in Section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company or
by any trade or business, whether or not incorporated, which, together with the
Company, is under common control, as described in Section 414(b) or (c) of the
Code.
(dd) Dilutive Effect. The Company understands and acknowledges
that the number of the Warrant Shares issuable upon exercise of the Warrants
will increase in certain circumstances. The Company further acknowledges that
its obligations to issue the Warrant Shares upon the exercise of the Warrants in
accordance with this Agreement and the Warrants, is, in each case, absolute and
unconditional regardless of the dilutive effect that such issuance may have on
the ownership interest of other stockholders of the Company.
Section 2.2 Representations and Warranties of the Purchasers Each of
the Purchasers hereby makes the following representations and warranties to the
Company with respect solely to itself and not with respect to any other
Purchaser:
(a) Organization and Standing of the Purchasers. If the
Purchaser is an entity, such Purchaser 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, and such Purchaser was not formed for the specific purpose of
acquiring the Units.
(b) Authorization and Power. The Purchaser has the requisite
power and authority to enter into and perform this Agreement, the Registration
Rights Agreement and the Escrow Agreement and to purchase the Common Shares and
the Warrants being sold to it hereunder. The execution, delivery and performance
of this Agreement, the Registration Rights Agreement, the Escrow Agreement and
the documents contemplated hereby by such Purchaser and the consummation by it
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate, company or partnership action (if the Purchaser is an
entity), and no further consent or authorization of such Purchaser or its Board
of Directors, stockholders, members, managers or partners, as the case may be,
is required. This Agreement, the Registration Rights Agreement and the Escrow
Agreement will have been duly executed and
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delivered by the Purchasers on the Tranche I Closing Date. Each of this
Agreement, the Registration Rights Agreement and the Escrow Agreement
constitutes, or shall constitute when executed and delivered, a valid and
binding obligation of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, or similar laws relating to, or affecting generally the
enforcement of, creditor's rights, remedies or by other equitable principles of
general application.
(c) No Conflicts. The execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the Escrow Agreement and the
documents contemplated hereby and thereby and the consummation by such Purchaser
of the transactions contemplated hereby and thereby or relating hereto do not
and will not (i) result in a violation of such Purchaser's charter documents,
bylaws, partnership agreement, operating agreement or other organizational
documents, or (ii) conflict with, constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of any
agreement, indenture or instrument to which such Purchaser is a party, or result
in a violation of any law, rule, or regulation, or any order, judgment or decree
of any court or governmental agency applicable to such Purchaser or its
properties (except for such conflicts, defaults and violations as would not,
individually or in the aggregate, have a Material Adverse Effect on such
Purchaser). Such Purchaser is not required to obtain any consent, authorization
or order of, or make any filing or registration with, any court or governmental
agency in order for it to execute, deliver or perform any of its obligations
under this Agreement, the Registration Rights Agreement, the Escrow Agreement or
the documents contemplated hereby and thereby or to purchase the Common Shares
and the Warrants in accordance with the terms hereof, provided that for purposes
of the representation made in this sentence, such Purchaser is assuming and
relying upon the accuracy of the relevant representations and agreements of the
Company herein.
(d) Acquisition for Investment. Such Purchaser is purchasing
the Common Shares and the Warrants solely for its own account for the purpose of
investment and not with a view to or for sale in connection with distribution.
Such Purchaser does not have a present intention to sell the Common Shares or
the Warrants, nor a present arrangement (whether or not legally binding) or
intention to effect any distribution of the Common Shares or the Warrants to or
through any person or entity; provided, however, that by making the
representations herein and subject to Section 2.2(f) below, such Purchaser does
not agree to hold the Common Shares or the Warrants for any minimum or other
specific term and reserves the right to dispose of the Common Shares or the
Warrants at any time in accordance with federal securities laws applicable to
such disposition. Such Purchaser acknowledges that it is able to bear the
financial risks associated with an investment in the Common Shares or the
Warrants and that it has been given full access to such records of the Company
and to the officers of the Company as it has deemed necessary or appropriate to
conduct its due diligence investigation.
(e) Accredited Purchasers. Such Purchaser is an "accredited
investor" as defined in Regulation D promulgated under the Securities Act and is
a resident of the jurisdiction indicated on Exhibit A hereto. Purchaser has such
knowledge and experience in financial and business matters that Purchaser is
capable of evaluating the merits and risks of Purchaser's investment in the
Company.
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(f) Rule 144. Such Purchaser understands that the Common
Shares and Warrants must be held indefinitely unless such Common Shares and the
Warrants are registered under the Securities Act or an exemption from
registration is available. Such Purchaser acknowledges that such person is
familiar with Rule 144 of the rules and regulations of the Commission, as
amended, promulgated pursuant to the Securities Act ("Rule 144"), and that such
person has been advised that Rule 144 permits resales only under certain
circumstances. Such Purchaser understands that to the extent that Rule 144 is
not available, such person will be unable to sell any Common Shares and the
Warrants without either registration under the Securities Act or the existence
of another exemption from such registration requirement.
(g) No Broker-Dealer Affiliation. None of the Purchasers is a
broker-dealer registered with the Commission or an affiliate (as such term is
defined in Rule 144(a) promulgated under the Securities Act) of a broker-dealer
registered with the Commission.
(h) General. Such Purchaser understands that the Shares are
being offered and sold in reliance on a transactional exemption from the
registration requirement of federal and state securities laws and the Company is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of such Purchaser set forth
herein in order to determine the applicability of such exemptions and the
suitability of such Purchaser to acquire the Shares. Purchaser understands that
no United States federal or state agency or any government or governmental
agency has passed upon or made any recommendation or endorsement of the Common
Shares and the Warrants.
(i) Opportunities for Additional Information. Purchaser
acknowledges that Purchaser has had the opportunity to ask questions of and
receive answers from, or obtain additional information from, the executive
officers of the Company concerning the financial and other affairs of the
Company, and to the extent deemed necessary in light of Purchaser's personal
knowledge of the Company's affairs, Purchaser has asked such questions and
received answers to the full satisfaction of Purchaser, and Purchaser desires to
invest in the Company.
(j) No General Solicitation. Purchaser acknowledges that the
Common Shares and Warrants were not offered to Purchaser by means of any form of
general or public solicitation or general advertising, or publicly disseminated
advertisements or sales literature, including (i) any advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio, or (ii) any seminar or meeting to
which Purchaser was invited by any of the foregoing means of communications.
(k) No Commissions or Similar Fees. In connection with the
purchase of the Common Shares and Warrants by Purchaser, Purchaser has not and
will not pay, and has no knowledge of the payment of, any commission or other
direct or indirect remuneration to any person or entity for soliciting or
otherwise coordinating the purchase of such securities, except as set forth on
Schedule 2.2(p) hereto. All such persons or entities listed on the Schedule are
duly licensed and/or registered to engage in securities offering and selling
activities (or are exempt from such licensing and/or registration requirements)
under applicable federal laws and the laws of the state(s) in which such
activities have taken place in connection with the transaction contemplated by
this agreement.
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(l) Purchaser's Age and State of Residence. If Purchaser is an
individual, Purchaser is eighteen (18) years of age or older. Purchaser's
current address is (and if Purchaser is an entity, Purchaser's state of
incorporation or organization are) as set forth on the signature page hereof. If
Purchaser is an entity whose accredited investor status is dependent upon each
equity owner of such entity being an accredited investor, each of Purchaser's
equity owners and/or partners has the same state of residence as the Purchaser's
state of organization, and none of Purchaser's equity owners and/or partners has
any present intention of moving from such state of residency.
(m) Reliance by the Company. Purchaser understands fully the
meaning and legal consequences of the provisions herein, and agrees to indemnify
and hold harmless the Company, and each other person, if any subject to
liability because of such person's connection with the Company, against all
actions, claims, losses, damages and liabilities arising out of or based upon
any false representation or warranty herein, or any breach by the undersigned of
any provision hereof, and to reimburse the Company and each such other person
for any legal and other expenses incurred by the Company and each such other
person in connection with investigating, defending, and, if appropriate,
settling any action, claim, loss, damage or liability.
ARTICLE III
COVENANTS
The Company covenants with each of the Purchasers, which covenants are
for the benefit of the Purchasers and their permitted assignees (as defined
herein) as follows:
Section 3.1 Securities Compliance.
(a) The Company shall notify the Commission in accordance with
their rules and regulations, of the transactions contemplated by any of the
Transaction Documents, including filing a Form D with respect to the Common
Shares, Warrants and Warrant Shares as may be required under Regulation D, and
shall take all other necessary action and proceedings as may be required and
permitted by applicable law, rule and regulation, for the legal and valid
issuance of the Common Shares and the Warrant Shares to the Purchasers or
subsequent holders.
(b) The Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
such Purchasers set forth herein in order to determine the applicability of
federal and state securities laws exemptions and the suitability of such
Purchasers to acquire the Shares and the Warrants.
Section 3.2 Registration and Listing. The Company will cause a
registration statement registering the Common Shares and the Warrant Shares to
be filed no later than 30 days after the Tranche I Closing Date and cause the
registration statement to be declared effective within (i) 120 days after the
Tranche I Closing Date or (ii) five (5) business days of the date on which the
Commission informs the Company that it may request the acceleration of the
effectiveness of the registration statement, whichever date is the earlier, (the
"Effectiveness Date") will comply in all respects with its reporting and filing
obligations under the Exchange Act, will comply with all requirements related to
any registration statement filed pursuant to this Agreement or the
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Registration Rights Agreement, and will not take any action or file any document
(whether or not permitted by the Securities Act or the rules promulgated
thereunder) to terminate or suspend such registration or to terminate or suspend
its reporting and filing obligations under the Exchange Act or Securities Act,
except as permitted herein. The Company will take all action necessary to
continue the listing or trading of its Common Stock on the over-the-counter
electronic bulletin board.
Section 3.3 Intentionally Omitted.
Section 3.4 Compliance with Laws. The Company shall comply with all
applicable laws, rules, regulations and orders, noncompliance with which could
have a Material Adverse Effect.
Section 3.5 Keeping of Records and Books of Account. The Company shall
keep adequate records and books of account, in which complete entries will be
made in accordance with GAAP consistently applied, reflecting all financial
transactions of the Company, and in which, for each fiscal year, all proper
reserves for depreciation, depletion, obsolescence, amortization, taxes, bad
debts and other purposes in connection with its business shall be made.
Section 3.6 Reporting Requirements The Company shall furnish the
following, if and when applicable, to each Purchaser so long as such Purchaser
shall be obligated hereunder to purchase the Common Shares or shall own Common
Shares which, in the aggregate, represent more than 2% of the total combined
voting power of all voting securities then outstanding, provided, however, that
the Company shall not be obligated to furnish the following, if the following
reports have been filed by the Company with the Commission pursuant to the
Commission's "electronic data gathering and retrieval" (XXXXX) service:
(a) Reports filed with the Commission on Form 10-QSB, as soon
as available, and in any event within 15 days after filing such report with the
Commission;
(b) Annual Reports filed with the Commission on Form 10-KSB,
as soon as available, and in any event within 90 days after the end of each
fiscal year of the Company; and
(c) Copies of all notices and information, including without
limitation notices and proxy statements in connection with any meetings, that
are provided to holders of shares of Common Stock, contemporaneously with the
delivery of such notices or information to such holders of Common Stock.
Section 3.7 Intentionally Omitted.
Section 3.8 Other Agreements The Company shall not enter into any
agreement in which the terms of such agreement would restrict or impair the
right or ability to perform of the Company under any Transaction Document.
Section 3.9 Distributions. So long as any Warrants remain outstanding,
the Company agrees that it shall not declare or pay any dividends or make any
distributions to any holder(s) of Common Stock other than stock dividends or
stock splits.
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Section 3.10 Intentionally Omitted.
Section 3.11 Intentionally Omitted.
Section 3.12 Regulation S. The Company covenants and agrees that if the
Company fails to register the Common Shares and the Warrant Shares under the
terms and conditions of the Registration Rights Agreement attached hereto as
Exhibit D or such registration shall no longer be effective, then for so long as
any of the Shares remain outstanding and continue to be "restricted securities"
within the meaning of Rule 144 under the Securities Act, the Company shall, in
order to permit resales of the Shares pursuant to Regulation S under the
Securities Act, (a) continue to file all material required to be filed pursuant
to Section 13(a) or 15(d) of the Exchange Act and (b) not knowingly engage in
directed selling efforts in connection with the resale of securities by any
Purchaser under Regulation S.
Section 3.13 Right of First Refusal.
(a) During the period from the Tranche I Closing Date until
the sixtieth (60th ) day immediately following the Effectiveness Date, the
Company covenants and agrees that it will not, without the prior written consent
of the Purchasers, enter into any subsequent offer or sale to, or exchange with
(or other type of distribution to), any third party (a "Subsequent Financing"),
of Common Stock or any securities convertible or exchangeable into Common Stock,
including debt securities (collectively, the "Financing Securities").
Notwithstanding the foregoing, a Subsequent Financing shall not include any
transaction involving the Company's (i) issuance of any Financing Securities
(other than for cash) in connection with a merger and/or acquisition,
consolidation, sale or disposition of all or substantially all of the Company's
assets, (ii) exchange of capital stock for assets, (iii) public offering at
market, or (iv) issuance of Common Stock or the issuance of options to purchase
Common Stock as such is related to any employee stock ownership plan.
(b) During the one year period immediately following the
Effectiveness Date, the Company covenants and agrees to promptly notify in
writing (a "Rights Notice") a designee of the Purchasers of the terms and
conditions of any proposed Subsequent Financing. The Rights Notice shall
describe, in reasonable detail, the proposed Subsequent Financing, the proposed
closing date of the Subsequent Financing, which shall not be within thirty (30)
calendar days from the date of the Rights Notice, including, without limitation,
all of the terms and conditions thereof. The Rights Notice shall provide the
Purchasers an option (the "Rights Option") during the fifteen (15) calendar day
period following delivery of the Rights Notice (the "Option Period") to purchase
up to $8,000,000, or such greater amount as the Company and the Purchasers may
agree to, of the securities being offered in such Subsequent Financing on the
same, absolute terms and conditions as contemplated by such Subsequent Financing
(the "First Refusal Rights"). Delivery of any Rights Notice constitutes a
representation and warranty by the Company that there are no other material
terms and conditions, arrangements, agreements or otherwise except for those
disclosed in the Rights Notice, to provide additional compensation to any party
participating in any proposed Subsequent Financing, including, but not limited
to, additional compensation based on changes in the Purchase Price or any type
of reset or adjustment of a purchase or conversion price or to issue additional
securities at any time after the closing date of a Subsequent Financing. If the
Company does not receive notice of exercise of the Rights
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Option from the Purchasers within the Option Period, the Company shall have the
right to close the Subsequent Financing on the scheduled closing date with a
third party; provided that all of the terms and conditions of such closing are
the same as those provided to the Purchasers in the Rights Notice. If the
closing of the proposed Subsequent Financing does not occur on that date, any
closing of the contemplated Subsequent Financing or any other Subsequent
Financing shall be subject to all of the provisions of this Section 3.13,
including, without limitation, the delivery of a new Rights Notice.
Section 3.14 Reservation of Shares. So long as any of the Common Shares
or Warrants remain outstanding, the Company shall take all action necessary to
at all times have authorized, and reserved for the purpose of issuance, no less
than 100% of the aggregate number of shares of Common Stock needed to provide
for the issuance of the Common Shares and the Warrant Shares.
Section 3.15 Transfer Agent Instructions. The Company shall issue
irrevocable instructions to its transfer agent, and any subsequent transfer
agent, to issue certificates, registered in the name of each Purchaser or its
respective nominee(s), for the Common Shares and the Warrant Shares in such
amounts as specified from time to time by each Purchaser to the Company upon
issuance of the Common Shares or exercise of the Warrants in the form of Exhibit
E attached hereto (the "Irrevocable Transfer Agent Instructions"). Prior to
registration of the Common Shares and the Warrant Shares under the Securities
Act, all such certificates shall bear the restrictive legend specified in
Section 6.1 of this Agreement. The Company warrants that no instruction other
than the Irrevocable Transfer Agent Instructions referred to in this Section
3.15 will be given by the Company to its transfer agent and that the Shares
shall otherwise be freely transferable on the books and records of the Company
as and to the extent provided in this Agreement and the Registration Rights
Agreement. Nothing in this Section 3.15 shall affect in any way each Purchaser's
obligations and agreements set forth in Section 6.1 to comply with all
applicable prospectus delivery requirements, if any, upon resale of the Shares.
If a Purchaser transfers any Shares or Warrants in compliance with Section 3.16,
the Company shall permit the transfer, and, in the case of the Common Shares and
the Warrant Shares, promptly instruct its transfer agent to issue one (1) or
more certificates in such name and in such denominations as specified by such
Purchaser and, in the case of transfers pursuant to Section 3.16(a) or (c),
without any restrictive legend. The Company acknowledges that a breach by it of
its obligations under this Section 3.15 will cause irreparable harm to the
Purchasers 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 3.15 will be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the provisions
of this Section 3.15, that the Purchasers 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.
Section 3.16 Transfer or Resale. Each Purchaser severally, and not
jointly, understands that (i) except as provided in the Registration Rights
Agreement, the sale or resale of the Shares and the Warrants have not been and
are not being registered under the Securities Act or any state securities laws,
and agrees that the Shares and the Warrants may not be transferred unless (a)
the resale of the Shares and Warrants has been registered thereunder; or (b)
Purchaser shall have
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delivered to the Company an opinion of counsel (which opinion shall be in form,
substance and scope customary for opinions of counsel in comparable
transactions) to the effect that the Shares and Warrants to be sold or
transferred may be sold or transferred pursuant to an exemption from such
registration; or (c) the Shares and Warrants are sold under Rule 144 promulgated
under the Securities Act (or a successor rule); and (ii) neither the Company nor
any other person is under any obligation to register such Securities under the
Securities Act or any state securities laws (other than pursuant to the
Registration Rights Agreement).
ARTICLE IV
CONDITIONS
Section 4.1 Conditions Precedent to the Obligation of the Company to
Sell the Units at each Closing. The obligation hereunder of the Company to issue
and sell the applicable Common Shares and Warrants to the Purchasers at each
Closing is subject to the satisfaction or waiver, at or before such Closing, 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) Accuracy of Each Purchaser's Representations and
Warranties. The representations and warranties of each Purchaser shall be true
and correct in all material respects as of the date when made and as of each
Closing 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.
(b) Performance by the Purchasers. Each Purchaser 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 Purchaser at or prior to such Closing, including having
paid by wire transfer of funds into escrow in accordance with this Agreement and
the Escrow Agreement the Purchase Price set forth opposite such Purchaser's name
on Exhibit A under the heading "Purchase Prices" (for a total of $4 million at
each Closing); each Purchaser shall have executed and delivered this Agreement,
the Registration Rights Agreement and the Escrow Agreement to the Escrow Agent
on behalf of the Company. The Escrow Agent shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement and the Escrow Agreement to be performed, satisfied
or complied with by the Escrow Agent at or prior to such Closing, including
delivery of all of the Purchaser's Closing Documents to the Company.
(c) No Injunction. No statute, rule, 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.
Section 4.2 Conditions Precedent to the Obligation of the Purchasers to
Purchase the Units at each Closing. The obligation hereunder of each Purchaser
to acquire and pay for the applicable Common Shares and Warrants at each Closing
is subject to the satisfaction or waiver, at or before such Closing, of each of
the conditions set forth below. These conditions are for
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each Purchaser's sole benefit and may be waived by such Purchaser at any time in
its sole discretion.
(a) Accuracy of the Company's Representations and Warranties.
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 each Closing
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.
(b) Performance by the Company. The Company 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 the Company at or prior to each Closing.
(c) No Suspension, Etc. From the date hereof to such Closing
Date, trading in the Company's Common Stock shall not have been suspended by the
Commission, and, at any time prior to such Closing, trading in securities
generally as reported by Bloomberg Financial Markets ("Bloomberg") shall not
have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by Bloomberg, or on the New
York Stock Exchange, nor shall a banking moratorium have been declared either by
the United States, or New York State authorities, nor shall there have occurred
any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on, or any
material adverse change in any financial market which, in each case, in the
judgment of such Purchaser, makes it impracticable or inadvisable to purchase
the Common Shares.
(d) No Injunction. No statute, rule, 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.
(e) No Proceedings or Litigation. No action, suit or
proceeding before any arbitrator or any governmental authority shall have been
commenced, and no investigation by any governmental authority shall have been
threatened, against the Company, or any of the officers, directors or affiliates
of the Company seeking to restrain, prevent or change the transactions
contemplated by this Agreement, or seeking damages in connection with such
transactions.
(f) Opinion of Counsel, Etc. At each Closing, the Escrow Agent
on behalf of each Purchaser shall have received an opinion of counsel to the
Company, dated the date of such Closing, in the form of Exhibit F hereto, and
such other certificates and documents as such Purchaser or its counsel shall
reasonably require incident to such Closing.
(g) Registration Rights Agreement. Prior to the Tranche I
Closing, the Company shall have executed and delivered the Registration Rights
Agreement to the Escrow Agent on behalf of each Purchaser.
(h) Stock Certificates. The Company shall have executed and
delivered to the Escrow Agent on behalf of each Purchaser, the stock
certificates (in such denominations as such
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Purchaser shall request) for the Common Shares and the Warrants being purchased
by such Purchaser at such Closing.
(i) Resolutions. Prior to the Tranche I Closing, the Board of
Directors of the Company shall have adopted resolutions consistent with Section
2.1(b) above in a form reasonably acceptable to counsel for the Purchasers (the
"Resolutions").
(j) Reservation of Shares. As of each Closing Date, the
Company shall have reserved out of its authorized and unissued Common Stock,
solely for the purpose of effecting the issuance of the Common Shares and the
exercise of the Warrants, a number of shares of Common Stock equal to at least
100% of the shares of Common Stock which would be issuable upon issuance of the
Common Shares and upon exercise of the Warrants following such Closing (after
giving effect to the Common Shares and Warrants to be issued on such Closing
Date and assuming all such Common Shares and Warrants were fully issuable and
exercisable, as applicable, on such date regardless of any limitation on the
timing or amount of such issuances or exercises).
(k) Transfer Agent Instructions. As of the Tranche I Closing
Date, the Irrevocable Transfer Agent Instructions, in the form of Exhibit E
attached hereto, shall have been delivered to and acknowledged in writing by the
Company's transfer agent.
(l) Secretary's Certificate. At the Tranche I Closing, the
Company shall have delivered to the Escrow Agent on behalf of each Purchaser a
secretary's certificate, dated as of such Closing Date, as to (i) the
Resolutions, (ii) the Articles and (iii) the Bylaws, each as in effect at such
Closing, and (iv) the authority and incumbency of the officers of the Company
executing the Transaction Documents and any other documents required to be
executed or delivered in connection therewith.
(m) Escrow Agreement. Prior to the Tranche I Closing, the
Company shall have executed and delivered the Escrow Agreement to the Escrow
Agent on behalf of each Purchaser.
(n) Officer's Certificate. At each Closing, the Company shall
have delivered to such Purchaser a certificate of an executive officer of the
Company, dated as of such Closing Date, confirming the accuracy of the Company's
representations, warranties and covenants as of such Closing Date and confirming
the compliance by the Company with the conditions precedent set forth in this
Section 4.2 as of such Closing Date.
ARTICLE V
REGISTRATION RIGHTS
At the Tranche I Closing, the Company and each of the Purchasers shall
enter into a Registration Rights Agreement in the form attached hereto as
Exhibit D (the "Registration Rights Agreement").
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ARTICLE VI
STOCK CERTIFICATE LEGEND
Section 6.1 Legend. Each certificate representing the Common Shares,
the Warrants, and the securities issued upon exercise thereof, as applicable and
appropriate, shall be stamped or otherwise imprinted with a legend in the
following form (in addition to any legend required by applicable federal,
provincial or state securities or "blue sky" laws):
THESE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES")
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS REGISTERED UNDER THAT ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS OR CAM DATA SYSTEMS, INC. (THE "COMPANY") SHALL HAVE RECEIVED AN
OPINION IN FORM, SCOPE AND SUBSTANCE REASONABLY ACCEPTABLE TO THE
COMPANY, OF COUNSEL, WHO IS REASONABLY ACCEPTABLE TO THE COMPANY THAT
REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE
PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS IS NOT
REQUIRED.
The Company agrees to reissue certificates representing the Shares or
the Warrants, without the legend set forth above if at such time, prior to
making any transfer of any Shares or the Warrants 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 such holder otherwise
complies with the terms of the Transaction Documents and the provisions of this
Section 6.1. The legend set forth above shall be removed and the Company shall
issue a certificate without such legend to the holder of any Shares or Warrants
upon which it is stamped if, unless otherwise required by federal or state
securities laws, (a) the sale of such Shares or Warrants is registered under the
Securities Act (including registration pursuant to Rule 416 thereunder) as
contemplated by the Registration Rights Agreement (b) such holder provides the
Company with an opinion of counsel, in form, substance and scope customary for
opinions of counsel in comparable transactions, to the effect that a sale or
transfer of such Shares or Warrants may be made without registration under the
Securities Act; or (c) such holder provides the Company with reasonable
assurances that such Shares or Warrants can be sold under Rule 144(k). Each
Purchaser agrees that it will only sell Shares or Warrants, including those
represented by a certificate(s) from which the legend has been removed, pursuant
to an effective registration statement, under an exemption from the registration
requirements of the Securities Act or in accordance with Rule 144(k). In the
event the above legend is removed from any Shares or Warrants and the
effectiveness of a registration statement covering such Shares or Warrants is
suspended or the Company determines that a supplement or amendment thereto is
required by applicable securities laws, then upon reasonable advance notice to
such Purchaser the Company may require that the above legend be placed on any
such Shares or Warrants that cannot then be sold pursuant to an effective
registration statement, under an exemption from the registration requirements of
the Securities Act or under Rule 144(k) and such Purchaser shall
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cooperate in the replacement of such legend. Such legend shall thereafter be
removed when such Shares or Warrants may again be sold pursuant to an effective
registration statement, under an exemption from the registration requirements of
the Securities Act or under Rule 144(k). The restrictions on transfer contained
in Section 6.1 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.
ARTICLE VII
TERMINATION
Section 7.1 Termination by Mutual Consent. This Agreement may be
terminated at any time prior to any Closing by the mutual written consent of the
Company and the Purchasers.
Section 7.2 Other Termination. This Agreement may be terminated by the
action of the Board of Directors of the Company or by any one or more of the
Purchasers at any time if a Closing shall not have been consummated by such
Closing Date, as long as the failure to so consummate is not the fault of the
terminating party.
Section 7.3 Termination of Closing. If a Closing has not occurred on or
prior to the applicable Closing Date, those sections and provisions relating to
such Closing in this Agreement may be terminated by the action of the Board of
Directors of the Company or by any one or more of the Purchasers as long as the
failure to consummate such Closing is not the fault of the terminating party.
Section 7.4 Effect of Termination. In the event of termination by the
Company or any one or more of the Purchasers of this Agreement or any part
hereof, written notice thereof shall forthwith be given to the other party and
the transactions contemplated by this Agreement and the Registration Rights
Agreement shall be terminated without further action by either party. If this
Agreement is terminated as provided in Section 7.1 or 7.2 herein, this Agreement
shall become void and of no further force and effect, except for Sections 9.1
and 9.2, and Article VIII herein. Nothing in this Section 7.4 shall be deemed to
release the Company or any Purchaser from any liability for any breach under
this Agreement or the Registration Rights Agreement, or to impair the rights of
the Company and the Purchasers to compel specific performance by the other party
of its obligations under this Agreement and the Registration Rights Agreement.
ARTICLE VIII
INDEMNIFICATION Section 8.1 General Indemnity. The Company agrees to
indemnify and hold harmless the Purchasers (and their respective directors,
officers, affiliates, agents, successors and assigns) from and against any and
all losses, liabilities, deficiencies, costs, damages and expenses (including,
without limitation, reasonable attorney's fees, charges and disbursements)
incurred by the Purchasers as a result of any inaccuracy in or breach of the
representations, warranties or covenants made by the Company herein. Each
Purchaser severally but not jointly agrees to indemnify and hold harmless the
Company and its directors, officers, affiliates, agents, successors and assigns
from and against any and all losses, liabilities, deficiencies, costs,
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damages and expenses (including, without limitation, reasonable attorneys fees,
charges and disbursements) incurred by the Company as result of any inaccuracy
in or breach of the representations, warranties or covenants made by such
Purchaser herein.
Section 8.2 Indemnification Procedure. Any party entitled to
indemnification under this Article VIII (an "indemnified party") will give
written notice to the indemnifying party of any matters giving rise to a claim
for indemnification; provided, that the failure of any party entitled to
indemnification hereunder to give notice as provided herein shall not relieve
the indemnifying party of its obligations under this Article VIII except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any action, proceeding or claim is brought against an
indemnified party in respect of which indemnification is sought hereunder, the
indemnifying party shall be entitled to participate in and, unless in the
reasonable judgment of the indemnified party a conflict of interest between it
and the indemnifying party may exist with respect of such action, proceeding or
claim, to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. In the event that the indemnifying party advises an
indemnified party that it will contest such a claim for indemnification
hereunder, or fails, within 30 days of receipt of any indemnification notice to
notify, in writing, such person of its election to defend, settle or compromise,
at its sole cost and expense, any action, proceeding or claim (or discontinues
its defense at any time after it commences such defense), then the indemnified
party may, at its option, defend, settle or otherwise compromise or pay such
action or claim. In any event, unless and until the indemnifying party elects in
writing to assume and does so assume the defense of any such claim, proceeding
or action, the indemnified party's costs and expenses arising out of the
defense, settlement or compromise of any such action, claim or proceeding shall
be losses subject to indemnification hereunder. The indemnified party shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
indemnified party which relates to such action or claim. The indemnifying party
shall keep the indemnified party fully apprised at all times as to the status of
the defense or any settlement negotiations with respect thereto. If the
indemnifying party elects to defend any such action or claim, then the
indemnified party shall be entitled to participate in such defense with counsel
of its choice at its sole cost and expense. The indemnifying party shall not be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent. Notwithstanding anything in this Article VIII to the
contrary, the indemnifying party shall not, without the indemnified party's
prior written consent, settle or compromise any claim or consent to entry of any
judgment in respect thereof which imposes any future obligation on the
indemnified party or which does not include, as an unconditional term thereof,
the giving by the claimant or the plaintiff to the indemnified party of a
release from all liability in respect of such claim. The indemnification
required by this Article VIII shall be made by periodic payments of the amount
thereof during the course of investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred, so long as the
indemnified party irrevocably agrees to refund such moneys if it is ultimately
determined by a court of competent jurisdiction that such party was not entitled
to indemnification. The indemnity agreements contained herein shall be in
addition to (a) any cause of action or similar rights of the indemnified party
against the indemnifying party or others, and (b) any liabilities the
indemnifying party may be subject to pursuant to the law.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 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
that the Company shall allocate $40,000, at the Tranche I Closing, from the
aggregate Purchase Prices, to pay for all attorneys fees and expenses (exclusive
of disbursements and out-of-pocket expenses) incurred by the Purchasers in
connection with the preparation, negotiation, execution and delivery of this
Agreement, the Registration Rights Agreement and the transaction contemplated
hereunder. In addition, the Company shall pay all reasonable fees and expenses
incurred by the Purchasers in connection with any amendments, modifications or
waivers of this Agreement or any of the other Transaction Documents. In the
event of a dispute between the Company and any of the Purchasers concerning this
Agreement or any of the other Transaction Documents, the prevailing party in
such dispute shall be awarded all reasonable attorneys' fees and expenses
incurred in connection with such dispute. Notwithstanding anything to the
contrary contained herein, The Company shall pay all stamp or other similar
taxes and duties levied in connection with issuance of the Shares pursuant
hereto.
Section 9.2 Specific Enforcement, Consent to Jurisdiction.
(a) The remedies provided in this Agreement and the
Registration Rights Agreement shall be cumulative and in addition to all other
remedies available under this Agreement and the Registration Rights Agreement,
at law or in equity (including a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit a Purchaser's right to pursue actual damages for any failure by the
Company to comply with the terms of this Agreement or the Registration Rights
Agreement. Amounts set forth or provided for herein and therein with respect to
payments, conversion and the like (and the computation thereof) shall be the
amounts to be received by the Purchasers thereof and shall not, except as
expressly provided herein, be subject to any other obligation of the Company (or
the performance thereof). The Company acknowledges that a breach by it of its
obligations hereunder and thereunder will cause irreparable harm to the holders
of the Units and that the remedy at law for any such breach may be inadequate.
The Company therefore agrees that, in the event of any such breach or threatened
breach, the holders of the Units shall be entitled, in addition to all other
available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security being
required.
(b) Each of the Company and the Purchasers (i) hereby
irrevocably submits to the jurisdiction of the United States District Court
sitting in the Southern District of New York for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement or the
Registration Rights Agreement and (ii) hereby waives, and agrees not to assert
in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or proceeding
is brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. Each of the Company and the Purchasers consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such
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party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and
notice thereof. Nothing in this Section 9.2 shall affect or limit any right to
serve process in any other manner permitted by law.
Section 9.3 Entire Agreement; Amendment. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and, except as specifically set forth herein or in the Transaction Documents,
neither the Company nor any of the Purchasers makes any representations,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by a written instrument
signed by the Company and the Purchasers of at least two-thirds (2/3) of the
Common Shares then outstanding, and no provision hereof may be waived other than
by a written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Common Shares then
outstanding. No consideration shall be offered or paid to any person to amend or
consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration is also offered to all of the parties to
the Transaction Documents or holders of Common Shares, as the case may be.
Section 9.4 Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery by telex (with correct answer back
received), telecopy or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses for
such communications shall be:
If to the Company: CAM Data Systems, Inc.
00000 Xxx Xxxx Xxxxxx
Xxxxxxxx Xxxxxx, XX 00000
Attn.: Xxxx Xxxxxxx, Xx.
Tel.: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxx & Zepfel LLP
0000 Xxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No. (000) 000-0000
If to any Purchaser: At the address of such Purchaser as set
forth on Exhibit A to this Agreement, with
copies as specified in writing by such
Purchaser and with copies to:
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with copies to:
Xxxxxx Xxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
Any party hereto may from time to time change its address for notices
by giving at least ten (10) days written notice of such changed address to the
other party hereto.
Section 9.5 Waivers. No waiver by either party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provisions, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
Section 9.6 Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof.
Section 9.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns.
After each Closing, the assignment by a party to this Agreement of any rights
hereunder shall not affect the obligations of such party under this Agreement.
Section 9.8 No 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.
Section 9.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to the choice of law provisions.
Section 9.10 Survival. The representations and warranties of the
Company and the Purchasers contained in: (i) Sections 2.1(o) and (s) shall
survive indefinitely and (ii)those contained in Article II, with the exception
of Sections 2.1(o) and (s), shall survive the execution and delivery hereof and
the applicable Closing until the date three (3) years from [such] Closing Date;
and (iii) the agreements and covenants set forth in Articles I, III, V, VII,
VIII and IX of this Agreement shall survive the execution and delivery hereof
and any Closing hereunder, as applicable, until the Purchasers in the aggregate
beneficially own (determined in accordance with Rule 13d-3 under the Exchange
Act) less than 5% of the total combined voting power of all voting securities
then outstanding, provided, that Sections 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 3.9, and
3.12 shall not expire until the Registration Statement required by Section 2 of
the Registration
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Rights Agreement is no longer required to be effective under the terms and
conditions of Registration Rights Agreement.
Section 9.11 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart. In the event any signature is
delivered by facsimile transmission, the party using such means of delivery
shall cause four (4) additional executed signature pages to be physically
delivered to the other parties within five (5) days of the execution and
delivery hereof.
Section 9.12 Publicity. The Company agrees that it will not disclose,
and will not include in any public announcement, the name of the Purchasers,
unless and until such disclosure is required by law or applicable regulation,
and then only to the extent of such requirement.
Section 9.13 Severability. The provisions of this Agreement and the
Registration Rights Agreement are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of the provisions contained in this Agreement or the Registration Rights
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Agreement or the Registration
Rights Agreement shall be reformed and construed as if such invalid or illegal
or unenforceable provision, or part of such provision, had never been contained
herein, so that such provisions would be valid, legal and enforceable to the
maximum extent possible.
Section 9.14 Further Assurances. From and after the date of this
Agreement, upon the request of any Purchaser or the Company, each of the Company
and the Purchasers shall execute and deliver such instruments, documents and
other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement, the
Common Shares, the Warrants, the Warrant Shares, and the Registration Rights
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorize officer as of the date first above
written.
CAM DATA SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
----------------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Chief Financial Officer
MAGELLAN INTERNATIONAL, LTD.
By: /s/ Xxxx Xxxxx Xxxx
----------------------------------------
Name: Xxxx Xxxxx Xxxx
Title: Director
ASPEN INTERNATIONAL, LTD.
By: /s/ Xxxxxxx X. XxXxx
----------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Director
ANEGADA FUND, LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Director
TONGA PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: J. Xxxxx Xxxxxxx
Title: General Partner
30
XXXXXX X. XXXXX REVOCABLE TRUST
12-23-91
By:
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Trustee
ACQUA WELLINGTON SMALL CAP FUND, LTD.
By: /s/ Xxxxxxx X.X. Xxxxx Xxxxxx
----------------------------------------
Name:
Title:
THE CUTTYHUNK FUND LIMITED
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
BICOASTAL CONSULTING CORP.
By: /s/ Xxxxx X. Benz
----------------------------------------
Name: Xxxxx X. Benz
Title: President
AMRO INTERNATIONAL, S.A.
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
31
EXHIBIT A TO THE
UNITS PURCHASE AGREEMENT
CAM DATA SYSTEMS, INC.
NUMBER OF COMMON SHARES
LIST OF PURCHASERS AND WARRANTS PURCHASE PRICE
------------------ ----------------------- --------------
Magellan International, Ltd. Common Shares: 62,500 $1,000,000
Charlotte House Warrants: 62,500 (to purchase
Charlotte Street 43,750 shares of Common Stock)
Nassau, Bahamas
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxxxx X.X. Xxxxx Xxxxxx
Aspen International, Ltd. Common Shares: 62,500 $1,000,000
Charlotte House Warrants: 62,500 (to purchase
Charlotte Street 43,750 shares of Common Stock)
Nassau, Bahamas
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxxxx X.X. Xxxxx Xxxxxx
Anegada Fund, Ltd. Common Shares: 37,500 $600,000
c/o Goldman Sachs (Cayman) Trust, Limited Warrants: 37,500 (to purchase
Harbour Centre, 2nd Floor 26,250 shares of Common Stock)
Xxxxxx Town, Grand Cayman
Cayman Islands, B.W.I.
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: J. Xxxxx Xxxxxxx, Director
Tonga Partners, L.P. Common Shares: 112,500 $1,800,000
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxx: 112,500 (to purchase
Xxx Xxxxxxxxx, XX 00000 78,750 shares of Common Stock)
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: J. Xxxxx Xxxxxxx, General Partner
32
EXHIBIT A TO THE
UNITS PURCHASE AGREEMENT (CONTINUED)
CAM DATA SYSTEMS, INC.
NUMBER OF COMMON SHARES
LIST OF PURCHASERS AND WARRANTS PURCHASE PRICE
------------------ ----------------------- --------------
Acqua Wellington Small Cap Fund Ltd. Common Shares: 62,500 $1,000,000
c/o MeesPierson Fund Services Warrants: 62,500 (to purchase
(Bahamas) Limited 43,750 shares of Common Stock)
Xxxxxxxx Xxxxxxxx Centre
P.O. Box SS-6238
Nassau, Bahamas
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxxxx X.X. Xxxxx Xxxxxx
The Cuttyhunk Fund Limited Common Shares: 100,000 $1,600,000
c/o Optima Fund Management Warrants: 100,000 (to purchase
1285 Avenue of the Americas 70,000 shares of Common Stock)
Xxx Xxxx, Xxx Xxxx 00000
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxx Kapusciski/Xxxxxxxx X. Xxxxx
BiCoastal Consulting Corp. Common Shares: 31,250 $500,000
000 Xxxxxxxx Xxxxxx Warrants: 31,250 (to purchase
Xxx Xxxxx, Xxxxxxxxxx 00000 21,875 shares of Common Stock)
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxx Benz
Amro International, S.A. Common Shares: 31,250 $500,000
c/o Westminister Securities Warrants: 31,250 (to purchase
000 Xxxx Xxxxxx 21,875 shares of Common Stock)
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. no.: 000-000-0000
Fax no.: 000-000-0000
Attn: Xxxxxx Xxxxxx
