COMMON STOCK PURCHASE AGREEMENT
EXHIBIT
10.10
This
COMMON STOCK PURCHASE AGREEMENT (this “Agreement”),
dated
as of October 18, 2007 by and between Nuevo Financial Center, Inc., a Delaware
corporation (the "Company"),
and
the purchaser listed on Exhibit
A
hereto
(the "Purchaser"),
for
the purchase and sale of shares of the Company’s common stock, par value $0.001
per share (the “Common
Stock”).
The
parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF COMMON STOCK
Section
1.1 Purchase
and Sale of Common Stock.
Upon the
following terms and conditions, the Company shall issue and sell to the
Purchaser, and the Purchaser shall purchase from the Company, 2,500,000 shares
of Common Stock (the “Shares”)
at a
price per share of $0.10 (the “Per
Share Purchase Price”)
for an
aggregate purchase price of $250,000 (the “Purchase
Price”).
The
Company and the Purchaser are executing and delivering this Agreement in
accordance with and in reliance upon the exemption from securities registration
afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and
the
rules and regulations promulgated thereunder (the "Securities
Act"),
including Regulation D ("Regulation
D"),
and/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 investments
to be made hereunder.
Section
1.2 Purchase
Price 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 Purchaser and, in consideration of and in express reliance
upon
the representations, warranties, covenants, terms and conditions of this
Agreement, the Purchaser agrees to purchase the Shares. The closing under this
Agreement shall occur upon delivery by facsimile of executed signature pages
of
this Agreement and all other documents, instruments and writings required to
be
delivered pursuant to this Agreement to the offices of Xxxxxx Xxxxx Xxxxxxxx
& Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 (the
"Closing")
at
such time and place or on such date as the Buyer and the Seller may agree upon.
Each party shall deliver all documents, instruments and writings required to
be
delivered by such party pursuant to this Agreement at or prior to the Closing.
At the Closing, the Company shall deliver or cause to be delivered to the
Purchaser a certificate for the number of Shares set forth opposite the name
of
the Purchaser on Exhibit
A
hereto
and the Purchaser shall deliver its portion of the Purchase Price by wire
transfer to the Company.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
Section
2.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Purchaser as follows:
(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. The Company and each subsidiary is duly
qualified to do business as a foreign corporation 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. For the purposes of this Agreement,
"Material
Adverse Effect"
means
any effect on the business, results of operations, assets or condition
(financial or otherwise) of the Company that is material and adverse to the
Company and its subsidiaries, in the aggregate, and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company from entering into and performing any of its
obligations under the Transaction Documents (as defined below) in any material
respect.
1
(b) Authorization;
Enforcement.
The
Company has the requisite corporate power and authority to enter into and
perform this Agreement and any other agreement delivered pursuant hereto
(collectively, the "Transaction
Documents"),
and
to issue and sell the Shares in accordance with the terms hereof and to complete
the transactions contemplated by the Transaction Documents. The execution,
delivery and performance of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated thereby have been duly
and
validly authorized by all necessary corporate action and no further consent
or
authorization of the Company, its Board of Directors or stockholders is
required. When executed and delivered by the Company, each of the Transaction
Documents shall constitute 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, reorganization,
moratorium, liquidation, conservatorship, receivership or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies or
by other equitable principles of general application.
(c) Issuance
of Shares.
The
Shares to be issued at the Closing have been duly authorized by all necessary
corporate action and, when paid for and issued in accordance with the terms
hereof, the Shares will be validly issued, fully paid and nonassessable and
free
and clear of all liens, encumbrances and rights of refusal of any kind and
the
holders shall be entitled to all rights accorded to a holder of Common Stock.
(d) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby
and
thereby do not and will not (i) violate any provision of the Company's
certificate of incorporation or bylaws, each as amended to date, or any
subsidiary's comparable charter documents, (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 or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries' respective properties or assets are bound, or (iii)
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 any of its subsidiaries
or by
which any property or asset of the Company or any of its subsidiaries is bound
or affected, except, in all cases, other than violations pursuant to clauses
(i)
or (iii) (with respect to federal and state securities laws) above, except,
for
such conflicts, defaults, terminations, amendments, acceleration, cancellations
and violations as would not, individually or in the aggregate, have a Material
Adverse Effect.
(e) Compliance
with Law.
The
business of the Company and the subsidiaries has been and is presently being
conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, except that, individually
or in the aggregate, the noncompliance therewith could not reasonably be
expected to have a Material Adverse Effect.
(f) Securities
Act of 1933.
Subject
to the accuracy and completeness of the representations and warranties of the
Purchaser contained in Section 2.2 hereof, 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 Shares hereunder. Neither the Company nor
anyone acting on its behalf, directly or indirectly, has or will sell, offer
to
sell or solicit offers to buy any of the Shares or similar securities to, or
solicit offers with respect thereto from, or enter into any negotiations
relating thereto with, any person, or has taken or will take any action so
as to
bring the issuance and sale of any of the Shares under the registration
provisions of the Securities Act and applicable state securities laws, and
neither the Company nor any of its affiliates, nor any person acting on its
or
their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) in
connection with the offer or sale of any of the Shares.
2
Section
2.2 Representations
and Warranties of the Purchaser.
The
Purchaser hereby represents and warrants to the Company as follows:
(a) Organization
and Standing of the Purchaser.
If the
Purchaser is an entity, the 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.
(b) Authorization
and Power.
Such
Purchaser has the requisite power and authority to enter into and perform the
Transaction Documents and to purchase the Shares being sold to it hereunder.
The
execution, delivery and performance of the Transaction Documents by the
Purchaser and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate, partnership or other
action, and no further consent or authorization of the Purchaser or its Board
of
Directors, stockholders, partners or members, as the case may be, is required.
When executed and delivered by the Purchaser, the other Transaction Documents
shall constitute valid and binding obligations of the Purchaser enforceable
against the Purchaser in accordance with their 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) Acquisition
for Investment.
Such
Purchaser is purchasing the Shares 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 any of the Shares
nor a
present arrangement (whether or not legally binding) or intention to effect
any
distribution of any of the Shares to or through any person or entity;
provided,
however,
that by
making the representations herein, the Purchaser does not agree to hold the
Shares for any minimum or other specific term and reserves the right to dispose
of the Shares at any time in accordance with Federal and state securities laws
applicable to such disposition.
(d) General.
Such
Purchaser understands that the Shares are being offered and sold in reliance
on
a transactional exemption from the registration requirements 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 the Purchaser set forth herein in order to determine the applicability of
such exemptions and the suitability of the Purchaser to acquire the Shares.
Such
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 Shares.
(e) No
General Solicitation.
Such
Purchaser acknowledges that the Shares were not offered to the Purchaser by
means of any form of general or public solicitation or general advertising,
or
publicly disseminated advertisements or sales literature.
(f) Accredited
Investor.
Such
Purchaser is an “accredited investor” (as defined in Rule 501 of Regulation D),
and the Purchaser has such experience in business and financial matters that
it
is capable of evaluating the merits and risks of an investment in the Shares.
Such Purchaser is not required to be registered as a broker-dealer under Section
15 of the Exchange Act and the Purchaser is not a broker-dealer. Such Purchaser
acknowledges that an investment in the Shares is speculative and involves a
high
degree of risk.
ARTICLE
III
COVENANTS
The
Company covenants with the Purchaser as follows, which covenants are for the
benefit of the Purchaser and its respective permitted assignees.
Section
3.1 Securities
Compliance.
The
Company shall notify the Commission in accordance with its rules and
regulations, of the transactions contemplated by any of the Transaction
Documents 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 Shares to the Purchaser, or its respective subsequent
holders.
3
Section
3.2 Registration
and Listing.
The
Company shall cause its Common Stock to continue to be registered under the
Exchange Act, to comply in all respects with its reporting and filing
obligations under the Exchange Act, and to 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 OTC
Bulletin Board or any successor market. Subject to the terms of the Transaction
Documents, the Company further covenants that it will take such further action
as the Purchaser may reasonably request, all to the extent required from time
to
time to enable the Purchaser to sell the Shares without registration under
the
Securities Act within the limitation of the exemptions provided by Rule 144
promulgated under the Securities Act.
Section
3.3 Compliance
with Laws.
The
Company shall comply, and cause each subsidiary to comply, with all applicable
laws, rules, regulations and orders, noncompliance with which would be
reasonably likely to have a Material Adverse Effect.
Section
3.4 Disclosure
of Transaction.
The
Company shall issue a press release describing the material terms of the
transactions contemplated hereby (the “Press
Release”)
as
soon as practicable after the Closing date. The Company shall also file with
the
Commission a Current Report on Form 8-K (the “Form
8-K”)
describing the material terms of the transactions contemplated hereby as soon
as
practicable following the Closing date, but in no event more than two (2)
Trading Days following the Closing date, which Press Release and Form 8-K shall
be subject to prior review and comment by the Purchaser. "Trading
Day"
means
any day during which the OTC Bulletin Board (or other principal exchange on
which the Common Stock is traded) shall be open for trading or
quotation.
Section
3.5 Disclosure
of Material Information.
The
Company covenants and agrees that neither it nor any other person acting on
its
behalf has provided or will provide the Purchaser or its agents or counsel
with
any information that the Company believes constitutes material non-public
information, unless prior thereto the Purchaser shall have executed a written
agreement regarding the confidentiality and use of such information. The
Company understands and confirms that the Purchaser shall be relying on the
foregoing representations in effecting transactions in securities of the
Company.
Section
3.6 No
Integrated Offerings.
The
Company shall not make any offers or sales of any security (other than the
Shares being offered or sold hereunder) under circumstances that would require
registration of the Shares being offered or sold hereunder under the Securities
Act.
Section
3.7 Pledge
of Shares.
The
Company agrees that the Shares may be pledged by the Purchaser in connection
with a bona fide
margin
agreement or other loan or financing arrangement that is secured by the Common
Stock. The pledge of Common Stock shall not be deemed to be a transfer, sale
or
assignment of the Common Stock hereunder, and no Purchaser effecting a pledge
of
Common Stock shall be required to provide the Company with any notice thereof
or
otherwise make any delivery to the Company pursuant to this Agreement or any
other Transaction Document; provided that the Purchaser and its pledgee shall
be
required to comply with the provisions of this Agreement in order to effect
a
sale, transfer or assignment of Common Stock to such pledgee. At the Purchaser’s
expense, the Company hereby agrees to execute and deliver such documentation
as
a pledgee of the Common Stock may reasonably request in connection with a pledge
of the Common Stock to such pledgee by the Purchaser.
4
ARTICLE
IV
CERTIFICATE
LEGEND
Section
4.1 Legend.
Each
certificate representing the Shares shall be stamped or otherwise imprinted
with
a legend substantially in the following form (in addition to any legend required
by applicable state securities or "blue sky" laws):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")
OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR NUEVO FINANCIAL CENTER, INC. SHALL HAVE RECEIVED AN
OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES
ACT
AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
The
Company agrees to reissue certificates representing any of the Shares without
the legend set forth above if at such time, prior to making any transfer of
any
such Shares, 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. Such proposed transfer and removal will not be effected
until: (a) either (i) the Company has received an opinion of counsel reasonably
satisfactory to the Company, to the effect that the registration of the Shares
under the Securities Act is not required in connection with such proposed
transfer, (ii) a registration statement under the Securities Act covering such
proposed disposition has been filed by the Company with the Commission and
has
become and remains effective under the Securities Act, (iii) the Company has
received other evidence reasonably satisfactory to the Company that such
registration and qualification under the Securities Act and state securities
laws are not required, or (iv) the holder provides the Company with reasonable
assurances that such security can be sold pursuant to Rule 144 under the
Securities Act; and (b) either (i) the Company has received an opinion of
counsel reasonably satisfactory to the Company, to the effect that registration
or qualification under the securities or "blue sky" laws of any state is not
required in connection with such proposed disposition, or (ii) compliance with
applicable state securities or "blue sky" laws has been effected or a valid
exemption exists with respect thereto. The Company will respond to any such
notice from a holder within five (5) business days. In the case of any proposed
transfer under this Section 4.1, the Company will use reasonable efforts to
comply with any such applicable state securities or "blue sky" laws, but shall
in no event be required, (x) to qualify to do business in any state where it
is
not then qualified, or (y) to take any action that would subject it to tax
or to
the general service of process in any state where it is not then subject. The
restrictions on transfer contained in this Section 4.1 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. Whenever
a
certificate representing the Shares is required to be issued to the Purchaser
without a legend, in lieu of delivering physical certificates representing
the
Shares, provided the Company's transfer agent is participating in the Depository
Trust Company ("DTC")
Fast
Automated Securities Transfer program, the Company shall use its reasonable
best
efforts to cause its transfer agent to electronically transmit the Shares to
the
Purchaser by crediting the account of the Purchaser's Prime Broker with DTC
through its Deposit Withdrawal Agent Commission ("DWAC")
system
(to the extent not inconsistent with any provisions of this
Agreement).
ARTICLE
V
INDEMNIFICATION
Section
5.1 Company
Indemnity.
The
Company agrees to indemnify and hold harmless the Purchaser (and its 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 attorneys’ fees, charges and
disbursements) incurred by the Purchaser and its directors, officers,
affiliates, agents, successors and assigns as a result of any inaccuracy in
or
breach of the representations, warranties or covenants made by the Company
herein, unless any such losses are as a result of the Purchaser’s gross
negligence, bad faith or wilful misconduct.
5
ARTICLE
VI
MISCELLANEOUS
Section
6.1 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 pay all actual, reasonable attorneys' fees and expenses (including
disbursements and out-of-pocket expenses) for counsel to the Purchaser incurred
by the Purchaser in connection with (i) the preparation, negotiation, execution
and delivery of this Agreement, and (ii) any amendments, modifications or
waivers of this Agreement or any of the other Transaction Documents. In
addition, the Company shall pay all reasonable fees and expenses incurred by
the
Purchaser in connection with the enforcement of this Agreement or any of the
other Transaction Documents, including, without limitation, all reasonable
attorneys' fees and expenses.
Section
6.2 Specific
Performance; Consent to Jurisdiction; Venue.
(a) The
Company and the Purchaser acknowledges and agrees that irreparable damage would
occur in the event that any of the provisions of this Agreement or the other
Transaction Documents are not performed in accordance with their specific terms
or are otherwise breached. It is accordingly agreed that the parties shall
be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement or the other Transaction Documents and to enforce
specifically the terms and provisions hereof or thereof, this being in addition
to any other remedy to which any of them may be entitled by law or
equity.
(b) The
parties agree that venue for any dispute arising under this Agreement will
lie
exclusively in the state or federal courts located in New York County, New
York,
and the parties irrevocably waive any right to raise forum
non conveniens
or any
other argument that New York is not the proper venue. The parties irrevocably
consent to personal jurisdiction in the state and federal courts of the state
of
New York. The Company and the Purchaser consent to process being served in
any
such suit, action or proceeding by mailing a copy thereof to such 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 6.2 shall affect or limit any right to serve
process in any other manner permitted by law.
Section
6.3 Entire
Agreement; Amendment.
This
Agreement and the Transaction Documents contain the entire understanding and
agreement of the parties with respect to the matters covered hereby.
Section
6.4 Waivers.
No
waiver by any 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 provision, 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
6.5 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and assigns. Subject to Section 4.1 hereof, the Purchaser
may
assign the Shares and its rights under this Agreement and the other Transaction
Documents and any other rights hereto and thereto without the consent of the
Company.
Section
6.6 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 any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction. This Agreement shall not be interpreted or construed
with
any presumption against the party causing this Agreement to be
drafted.
6
Section
6.7 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.
Section
6.8 Severability.
The
provisions of this 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 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 and this 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
6.9 Further
Assurances.
From
and after the date of this Agreement, upon the request of the Purchaser or
the
Company, the Company and the Purchaser 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
IN
WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase
Agreement to be duly executed by their respective authorized officers as of
the
date first above written.
NUEVO FINANCIAL CENTER, INC. | |
By:_____________________________________ | |
Name: | |
Title: | |
VISION OPPORTUNITY MASTER FUND, LTD. | |
By:_____________________________________ | |
Name: | |
Title: |
8
EXHIBIT
A
LIST
OF PURCHASERS
Name
and Address
of
Purchaser
|
Number
of Shares
Purchased
|
Dollar
Amount
of
Investment
|
|
|
|
Vision
Opportunity Master Fund, Ltd
00
X. 00xx Xxxxxx, 0xx xxxxx
Xxx
Xxxx, XX 00000
Fax:
000-000-0000
Attn:
Xxxx Xxxxxxxx and
Antti
Uusiheimala
E-mail:
xxxx@xxxxxxx.xxx
xxxxx@xxxxxxx.xxx
|
2,500,000
|
$250,000
|
1
VISION
OPPORTUNITY MASTER FUND, LTD.
00
X 00xx
Xx., 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
October
18, 2007
0000
Xxxxxxxxxx Xxxxxx
Xxxxx
Xxxx, Xxx Xxxxxx 00000
Re: Securities
Purchase Agreements - May 2006 and October 2006
Gentlemen:
Reference
is made to that certain (A) Securities Purchase Agreement, dated on or about
May
2, 2006 (the “May
Agreement”)
between Nuevo Financial Center, Inc. (the “Company”)
and
Vision Opportunity Master Fund, Ltd (the “Purchaser”),
whereby the Purchaser purchased from the Company in the aggregate, $500,000
of
Units, each of which consists of (i) secured convertible promissory notes (the
“Notes”),
(ii)
Class A warrants (the “A
Warrants”)
to
purchase 1,000,000 shares of common stock, par value $0.001 per share (the
“Common
Stock”)
at
$0.50 per share, (iii) Class B warrants (the “B
Warrants”)
to
purchase 500,000 shares of Common Stock at $1.00 per share and (iv) a warrant
to
purchase shares of Common Stock and Warrants (the “Unit
Purchase Warrants”);
(B)
registration rights agreement dated May 2, 2006 providing for the registration
of the shares of Common Stock issuable upon conversion of the securities
referred to above (the “Registration
Rights Agreement”);
and
(C) Securities Purchase Agreement, dated on or about October 18, 2006 (the
“October
Agreement”
and
together with the May Agreement, the “Agreements”)
between the Company and the Purchaser, whereby the Purchaser purchased from
the
Company in the aggregate, an additional $500,000 of Units, consisting of the
same principal amount of Notes and same number of A Warrants, B Warrants and
Unit Purchase Warrants issued pursuant to the May Agreement (the “Additional
Securities”).
For
purposes hereof, the defined terms “Notes,” “A Warrants,” “B Warrants” and “Unit
Purchase Warrants” shall be deemed to include the Additional Securities.
Capitalized terms used and not otherwise defined herein shall have the meanings
given such terms in the applicable Agreements.
Reference
is also made to that certain Common Stock Purchase Agreement dated as of the
date hereof by and between the Company and the Purchaser, whereby the Purchaser
is purchasing 2,500,000 shares (the “Shares”)
of
Common Stock at a purchase price per share of $.10 for an aggregate purchase
price of $250,000 (the “New
Financing”).
Pursuant
to the terms of the Agreements and the securities issued pursuant thereto and
as
a result of the issuance of the Shares in the New Financing, the Company hereby
acknowledges and agrees that the conversion price of the outstanding
Notes
held by the Purchaser, and the exercise price of the outstanding A Warrants,
B
Warrants and Unit Purchase Warrants held by the Purchaser (and the securities
issuable upon exercise thereof), are hereby adjusted to a conversion price
or
exercise price equal to $.10 per share. The Company represents that there are
no
other outstanding securities of the Company that are subject to similar
anti-dilution rights that will be triggered by the issuance of the Shares in
the
New Financing. The Purchaser hereby waives any rights it may have to receive
additional shares of Common Stock pursuant to the terms of the Agreements
and the securities issued pursuant thereto as a result of the issuance of the
Shares in the New Financing.
This
letter agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument. In the event that any signature is delivered by facsimile
or e-mail transmission, such signature shall create a valid binding obligation
of the party executing (or on whose behalf such signature is executed) the
same
with the same force and effect as if such facsimile or e-mail signature were
the
original thereof.
Kindly
acknowledge your agreement to the foregoing by signing in the place indicated
below.
2
Very truly yours,
VISION
OPPORTUNITY MASTER FUND, LTD.
By:
_____________________________
Name:
Title:
|
Acknowledged
and agreed:
By:
_____________________________
Name:
Title:
3