GREEN SCREEN INTERACTIVE SOFTWARE, INC. NOTE PURCHASE AGREEMENT Dated as of May 16, 2008
GREEN
SCREEN INTERACTIVE SOFTWARE, INC.
Dated
as
of May 16, 2008
GREEN
SCREEN INTERACTIVE SOFTWARE, INC.
This
Note
Purchase Agreement (this “Agreement”), dated as of May 16, 2008, is entered into
by and between Green Screen Interactive Software, Inc. a Delaware corporation
(the “Company”), and Mandalay Media, Inc. (“Purchaser”). In consideration of the
mutual promises and covenants contained in this Agreement, the parties hereto
agree as follows:
1. Authorization;
Sale of Note.
1.1 Authorization.
The
Company has duly authorized the sale and issuance, pursuant to the terms of
this
Agreement, of a convertible secured promissory note in the principal amount
of
$2,000,000,
substantially in the form attached hereto as Exhibit
A
(the
“Note
1.2 Sale
of Note.
Subject
to the terms and conditions of this Agreement, at the Closing, the Company
will
sell and issue to the Purchaser, and the Purchaser will purchase the Note in
the
principal amount of $2,000,000 for a purchase price equal to the principal
amount of the Note (the “Purchase Price”).
1.3 Use
of
Proceeds.
The
Company will use the proceeds of the sale of the Note to (a) fund capital
expenditures and operating expenses (including corporate overhead), but not
for
any payments related to any future acquisitions for or by the Company until
the
consummation of the Qualified Financing (as defined in the Note) and (b) to
pay
the legal fees and disbursements referenced in Section 7.3 hereof.
1.4 Taxes
and Filings.
The
Company shall pay all taxes payable with respect to the issuance of the Note,
if
any, and the securities issuable upon conversion of the Note (the “Underlying
Securities”), provided that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of the Note or Underlying Securities in a name other than that of
a
Purchaser. The Company shall make all appropriate filings required to be made
under the laws of Delaware and any other jurisdiction with respect to the
transactions contemplated by this Agreement.
2. Closing;
Closing Deliverables.
2.1 Closing.
(a) Closing.
Subject
to the terms and conditions of this Agreement, the closing (the “Closing”) of
the sale and purchase of the Note under this Agreement shall take place at
the
offices of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ PC, The Chrysler Center,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“Mintz ▇▇▇▇▇”) (or remotely via the
exchange of documents and signatures) on the date of this Agreement or upon
such
other date and time as may be mutually agreeable to the Company and Purchaser.
The
date
of the Closing is referred to herein as the “Closing Date”.
2.2 Closing
Deliverables.
(a) The
Company and the Purchaser shall execute and deliver the Collateral
Pledge and Security Agreement, in the form attached hereto as Exhibit
B
(the
“Security Agreement”) and the Guaranty of ▇▇▇▇ ▇. ▇▇▇▇▇ in the form attached
hereto as Exhibit
C;
(b) The
Company shall deliver to the Purchaser if requested certificates, as of the
most
recent practicable dates (and no more than 30 days before such Closing), (i)
as
to the good standing of the Company issued by the Secretary of State of its
State of organization, and (ii) as to the due qualification of the Company
and
each of the Subsidiaries as a foreign corporation, limited liability company,
partnership or other entity, as applicable, issued by the Secretary of State
of
each jurisdiction where the nature of the business conducted by, and properties
and assets owned by, the Company and each of the Subsidiaries, make such
qualification necessary;
(c) The
Company shall make available for delivery if requested to the Purchaser a
Certificate of the Secretary of the Company attesting as to (i) the Company’s
Certificate of Incorporation, as amended or restated, as applicable (including
by reason of the Certificate) (the “Charter”), and By-lawsas of the Closing
Date; (ii) the signatures and titles of the officers of the Company executing
this Agreement or any of the other agreements to be executed and delivered
by
the Company at the Closing; and (iii) resolutions of the Board of Directors
of
the Company, authorizing and approving all matters in connection with this
Agreement and the Ancillary Agreements (as defined below) and the transactions
contemplated hereby and thereby;
(d) ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC, counsel for the Company, shall deliver to the Purchaser
an opinion, dated as of the Closing Date, in form and substance reasonably
satisfactory to the Purchaser and its counsel;
(e) There
shall be no litigation, claim or proceeding pending or, to the Company’s
knowledge, threatened against the Company relating to this Agreement or the
transactions contemplated hereby;
(f) The
Company shall deliver to Purchaser an executed Note registered in the name
of
Purchaser;
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(g) Purchaser
shall pay to the Company the Purchase Price for the Note by way of wire transfer
or immediately available funds to an account designated in writing by the
Company;
and
(h) The
Company shall have delivered to the Purchaser such other documents or agreements
necessary to consummate the transactions contemplated by this Agreement and
the
Ancillary Agreements, including, but not limited to, copies of any
authorizations, consents and approvals required to be obtained in connection
with the consummation of the transactions contemplated by this Agreement and/or
the Ancillary Agreements.
3. Representations
of the Company.
Except
as disclosed by the Company in
Exhibit
D
hereto
(collectively, the “Company’s Disclosure Schedule”), the Company hereby
represents and warrants to Purchaser that the statements contained in this
Section 3 are complete and accurate as of the date of this Agreement. The
Company’s Disclosure Schedule shall be arranged in sections corresponding to the
numbered and lettered sections and subsections contained in this Section 3.
For
purposes of this Agreement a “Company Material Adverse Effect” shall mean a
material adverse effect on the business, assets, prospects or financial
condition of the Company taken as a whole. For purposes of this Agreement,
the
term “knowledge” shall mean, with respect to the Company, the actual knowledge
of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, and shall, include knowledge
of
such facts or other matters as a prudent person, in their position with the
Company, could be expected to discover or otherwise become aware of in the
course of conducting a reasonable investigation concerning the existence of
such
fact or matter.
3.1 Organization
and Standing.
The
Company is a corporation duly formed, validly existing and in good standing
under the laws of the State of Delaware and has full organizational power and
authority to conduct its business as presently conducted and as proposed to
be
conducted by it and to enter into and perform this Agreement, the Note the
Security Agreement and the Guaranty(collectively, but not including this
Agreement, the “Ancillary Agreements”) and to carry out the transactions
contemplated by this Agreement and the Ancillary Agreements. The
Company is duly qualified to do business as a foreign company and is in good
standing in each jurisdiction in which the failure so to qualify would have
a
Company Material Adverse Effect. The Company has furnished to the Purchaser
complete and accurate copies of its Charter and By-laws, as amended to date
and
presently in effect.
3.2 Subsidiaries.
Except
as set forth in Section 3.2 of the Company Disclosure Schedule, the Company
does
not own or control, directly or indirectly, any shares of capital stock of
any
other corporation or any interest in any partnership, limited liability company,
joint venture or other non-corporate business enterprise (all of such entities
listed on Section 3.2 of the Company Disclosure Schedule individually a
“Subsidiary” and collectively, the “Subsidiaries”).
Each
Subsidiary is validly existing and in good standing under the laws of the
jurisdiction of its formation, has all requisite power to own, lease and operate
its properties and to carry on its business as currently conducted and as
proposed to be conducted, and is duly qualified to do business and is in good
standing in each jurisdiction in which it owns or leases property or conducts
any business so as to require such qualification except
for those jurisdictions where the failure to be so qualified and in good
standing would not in the aggregate have a material adverse effect on the
Company and the Subsidiaries taken as a whole. Section 3.2 of the Company
Disclosure Schedule contains a true and complete list of the Subsidiaries and
sets forth with respect to each such Subsidiary the jurisdiction of formation,
the authorized and outstanding ownership interests of such Subsidiary and the
owner(s) of record of such outstanding ownership interests. The outstanding
ownership interests of each Subsidiary are duly authorized, validly issued,
fully paid and nonassessable, and are owned by the Company or another Subsidiary
free and clear of all liens, encumbrances, security interests or other like
rights.
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3.3 Capitalization.
(a) Section
3.3(a) of the Company’s Disclosure Schedule includes a complete and accurate
list, as of the Closing Date, of the holders of capital stock of the Company,
on
a fully-diluted basis, assuming conversion, exercise or exchange of each
outstanding option, warrant or other right to purchase capital units of the
Company.
(b) Except
as
set forth on Section 3.3(b) of the Company’s Disclosure Schedule, neither
the
Company nor any of its Subsidiaries have any outstanding options, warrants,
convertible securities or other rights to purchase or acquire membership
interests of the Company.
3.4 Issuance
of Securities.
The
issuance, sale and delivery of the Note in accordance with this Agreement has
been duly authorized by all necessary corporate action on the part of the
Company.
The
Note when issued, sold and delivered against payment therefor in accordance
with
the provisions of this Agreement, will be duly and validly issued, free and
clear of all liens, encumbrances and restrictions on transfer of every kind
and
nature whatsoever, other than restrictions on transfer imposed on the Purchaser
under this Agreement and the Ancillary Agreements or applicable state and
federal securities laws.
3.5 Authority
for Agreement; No Conflict.
(a) The
execution, delivery and performance by the Company of this Agreement and the
Ancillary Agreements, and the consummation by the Company of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
organizational action. This Agreement has been, and the Ancillary Agreements
when executed at the Closing will be, duly executed and delivered by the Company
and constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms, subject as to enforcement of remedies
to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting generally the enforcement of creditors’ rights and subject to a
court’s discretionary authority with respect to the granting of a decree
ordering specific performance or other equitable remedies.
(b) Except
as
set forth in Section 3.5(b) of the Company’s Disclosure Schedule, the execution
and delivery of this Agreement and the Ancillary Agreements, the consummation
of
the transactions contemplated hereby and thereby and the compliance with their
respective provisions by the Company will not (i) conflict with or violate
any
provision of the Charter or Bylaws, (ii) conflict with, result in a breach
of,
constitute (with or without due notice or lapse of time or both) a default
under, result in the acceleration of obligations under, create in any party
the
right to accelerate, terminate, modify or cancel, or require any notice, consent
or waiver under, any Material Contract (as defined below), Security Interest
(as
defined below) or other arrangement to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is
bound or to which its assets are subject, (iii) result in the imposition of
any
Security Interest upon any assets of the Company or any of its Subsidiaries,
or
(iv) to the Company’s knowledge, violate
any order, writ, injunction, decree, statute, law, rule or regulation applicable
to the Company or any of its Subsidiaries, its business as currently conducted
or as proposed to be conducted or any of its properties or assets (collectively,
“Applicable Laws and Orders”). For purposes of this Agreement, “Security
Interest” means any mortgage, pledge, security interest, encumbrance, charge or
other lien (whether arising by contract or by operation of law).
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3.6 Governmental
Consents.
Except
for such filings as shall have been made prior to and shall be effective on
and
as of the Closing and the filing with the Securities and Exchange Commission
of
a Form D under the Securities Act, no consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with
or
notice to, any court, arbitrational tribunal, administrative agency,
instrumentality, department, agency or commission or other governmental or
regulatory authority or agency, whether foreign, federal, state, provincial,
county or local (each of the foregoing is hereafter referred to as a
“Governmental Entity”) is required on the part of the Company in connection with
execution and delivery of this Agreement and the Ancillary Agreements, the
offer, issuance, sale and delivery of the Note, or the other transactions
contemplated by this Agreement and the Ancillary Agreements. Based, in part,
on
the representations made by the Purchaser in Section 4
of this
Agreement, the offer and sale of the Note to of the Purchaser will be exempt
from the registration requirements of Section 5 of the Securities
Act.
3.7 Litigation.
There
are no actions, suits or proceedings, or governmental inquiries or
investigations, pending, or, to
the
Company’s knowledge, threatened, against the Company or any of its Subsidiaries.
3.8 Financial
Statements.
The
Company has furnished to the Purchaser a complete and accurate copy of the
internally prepared and unaudited consolidated balance sheet of the Company
and
each of its Subsidiaries (the “Balance Sheet”) as of December 31, 2007 (the
“Balance Sheet Date”) and the related consolidated statements of income for the
three months then ended (collectively, the “Financial Statements”). The
Financial Statements are in accordance with the books and records of the
Company
and each
of its Subsidiaries and present fairly the financial condition and results
of
operations of the Company and each of its Subsidiaries at the dates and for
the
periods indicated.
3.9 Absence
of Undisclosed Liabilities.
Neither
the Company nor any of its Subsidiaries have any liability (whether absolute
or
contingent), except for (a) liabilities shown on the Balance Sheet, and (b)
liabilities which have arisen since the Balance Sheet Date in the ordinary
course of business and which are similar in nature and amount to the liabilities
which arose during the comparable period of time in the immediately preceding
fiscal period.
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3.10 Absence
of Changes.
There
has been no material adverse change in the financial condition of the Company
or
its business prospects since the Balance Sheet Date.
3.11 Taxes.
The
Company and each of its Subsidiaries have filed or have obtained presently
effective extensions with respect to all federal, state, county, local and
foreign tax returns which are required to be filed by it, such returns are
complete and accurate in all material respects and all taxes shown thereon
to be
due have been timely paid. None of such tax returns is now under audit or
examination by any foreign, federal, state or local authority and there are
no
agreements, waivers or other arrangements providing for an extension of time
with respect to the assessment or collection of any tax or deficiency of any
nature against the Company or any of its Subsidiaries, or with respect to any
of
the tax returns, or any suits or other actions, proceedings, investigations
or
claims now pending or, to the Company’s knowledge, threatened against the
Company or any of its the Subsidiaries with respect to any tax..
3.12 Property
and Assets.
Except
as set forth in Section 3.12 of the Company’s Disclosure Schedule, the Company
and each of its Subsidiaries has good title to, or a valid leasehold interest
in, all of its material properties and assets, including all properties and
assets reflected in the Balance Sheet, except those disposed of since the date
thereof in the ordinary course of business, and none of such properties or
assets is subject to any Security Interest, except (a) as reflected on the
Balance Sheet, (b) for statutory liens for the payment of current taxes that
are
not yet due and payable, and (c) as set forth in Section 3.12 of the Company’s
Disclosure Schedule.
3.13 Intellectual
Property.
(a) The
Company and each of its Subsidiaries owns or have the right to use all
Intellectual Property (as defined below) used or useful in the operation of
the
business as now conducted and as currently planned to be conducted by the
Company and each of its Subsidiaries. To the
knowledge of the Company, the Company’s and each of its Subsidiaries’ current
and intended products, services and processes do not infringe on any
Intellectual Property held by any other person.
(b) For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) “Intellectual
Property” shall mean all: (A) patents, patent applications, patent rights,
patent disclosures and all related continuation, continuation-in-part,
divisional, reissue, reexamination, utility model, certificate of invention
and
design patents, registrations and applications for registrations; (B)
trademarks, service marks, trade dress, Internet domain names, logos, designs,
trade names, brand and service names, corporate names and registrations and
applications for registration thereof; (C) copyrights and registrations and
applications for registration thereof; (D) mask works and registrations and
applications for registration thereof; (E) computer software, source code,
object code, data and documentation; (F) inventions, trade secrets and
confidential business information, whether patentable or nonpatentable and
whether or not reduced to practice, know-how, manufacturing and product
processes and techniques, research and development information, copyrightable
works, financial, marketing and business data, pricing and cost information,
business and marketing plans and customer and supplier lists and information;
(G) other proprietary rights relating to any of the foregoing (including
remedies against infringements thereof and rights of protection of interest
therein under the laws of all jurisdictions); and (H) copies and tangible
embodiments thereof.
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(ii) “Company
Intellectual Property” shall mean the Intellectual Property owned by or licensed
to the Company or any of its Subsidiaries.
3.14 Insurance.
The
Company and each of its Subsidiaries maintains in full force and effect valid
policies of general liability, errors and omissions, workers’ compensation
insurance and other insurance with respect to its properties and business of
the
kinds and in the amounts deemed sufficient by management.
3.15 Employees
and Employee Benefit Matters.
(a) Subject
to applicable law and the terms and conditions of employment agreements, the
employment of each officer and employee of the Company and each of its
Subsidiaries is terminable at the will of the Company. The Company is not aware
that any employee of the Company or any of its Subsidiaries has plans to
terminate his or her employment relationship with the Company or any of its
Subsidiaries nor does the Company or any of its Subsidiaries have a present
intention to terminate the employment of any employee. The Company and each
of
its Subsidiaries have complied in all material respects with all applicable
laws
relating to wages, hours, equal opportunity, collective bargaining, workers’
compensation insurance and the payment of social security and other
taxes..
(b) Section
3.15(c) of the Company’s Disclosure Schedule sets forth a list of all key
employees, officers and directors of the Company and each of its Subsidiaries
and sets forth the annual salary and any bonus arrangements of such key
employees, officers and directors. As used in the foregoing sentence, the term
“key employee” shall include any employee who is entitled to annual compensation
of $100,000 or more.
3.16 Books
and Records.
The
stock
ledger of the Company is complete and accurate and reflects all issuances,
transfers, repurchases and cancellations of the shares of common stock of the
Company.
3.17 Primary
Business.
The
Company and each of its Subsidiaries are engaged primarily in the business
of
developing, publishing and distributing interactive entertainment software
and
have no present intention of changing their respective businesses.
3.18 U.S.
Real Property Holding Corporation.
Neither
the Company nor any of its Subsidiaries is now and has ever been a “United
States Real Property Holding Corporation” as defined in Section 897(c)(2) of the
Code and Section 1.897-2(b) of the Regulations promulgated by the Internal
Revenue Service.
3.19 Real
Property.
Neither
the Company nor any of its Subsidiaries own any real property. There are no
options held by the Company or any of its Subsidiaries or contractual
obligations on the part of the Company or any of its Subsidiaries to purchase
or
acquire any interest in real property, or options granted by the Company or
any
of its Subsidiaries or contractual obligations on the part of the Company or
any
of its Subsidiaries to sell or dispose of any interest in real property.
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3.20 Debt
Obligations.
Except
as set forth in Section 3.20 of the Company’s Disclosure Schedule, (i) neither
the Company nor any of its Subsidiaries has any debt obligations (other than
debt to trade creditors arising in the ordinary course of the Company’s or any
of its Subsidiaries’ businesses not in excess of $5,000 per creditor and $25,000
in the aggregate), and (ii) there are no liens that encumber the assets of
the
Company or any of its Subsidiaries as of the Closing. Any
and
all payments relating to prior acquisitions of the Company and its subsidiaries
are set forth on Section 3.20 of the Company’s Disclosure Schedule.
4. Representations
of the Purchaser.
The
Purchaser represents and warrants to the Company as follows:
4.1 Investment.
The
Purchaser is acquiring the Note, for its own account for investment and not
with
a view to, or for sale in connection with, any distribution thereof, nor with
any present intention of distributing or selling the same; and, except as
contemplated by this Agreement and the Ancillary Agreements, the Purchaser
has
no present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof. The Purchaser
was not solicited pursuant to any general solicitation or general advertising
in
connection with the offer and sale of the Note, including advertisements,
articles, notices or other communications published in any newspaper, magazine
or similar media or broadcast over radio, or television, or any seminar or
meeting whose attendees have been invited by general solicitation or general
advertising.
4.2 Authority.
The
Purchaser has full power and authority to enter into and to perform this
Agreement and the Ancillary Agreements in accordance with their terms. The
execution, delivery and performance by Purchaser of this Agreement and the
Ancillary Agreements, and the transactions contemplated hereby and thereby
by
Purchaser have been duly authorized by all necessary corporate, partnership,
limited liability or other action. This Agreement has been, and the Ancillary
Agreements when executed at the Closing will be, duly executed and delivered
by
Purchaser and constitute valid and binding obligations of Purchaser enforceable
in accordance with their respective terms, subject as to enforcement of remedies
to applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting generally the enforcement of creditors’ rights and subject to a
court’s discretionary authority with respect to the granting of a decree
ordering specific performance or other equitable remedies.
4.3 Knowledge
and Experience.
Purchaser (a) has sufficient knowledge and experience in finance and business
that it is capable of evaluating the risks and merits of its investment in
the
Company, (b) is able financially to bear the risks thereof, (c) has been
furnished with and has had access to such information as Purchaser has
considered necessary to make a determination as to the purchase of the Note
together with such additional information as Purchaser has deemed necessary
to
verify the accuracy of the information supplied, (d) has had all questions
which
have been asked by Purchaser satisfactorily answered by a representative of
the
Company, and (e) is
an
“accredited investor” within the meaning of Regulation D promulgated under the
Securities Act of 1933, as amended
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4.4 Note
and Underlying Securities Not Registered; No Public Market.
Purchaser understands and acknowledges that the offering of the Note pursuant
to
this Agreement will not be registered under the Securities Act on the grounds
that the offering and sale of securities contemplated by this Agreement are
exempt from registration under the Securities Act and that the Company’s
reliance upon such exemptions is predicated, in part, upon Purchaser’s
representations set forth in this Section 4. Purchaser acknowledges and
understands that the Note and the Underlying Securities must be held
indefinitely unless subsequently registered under the Securities Act and
qualified under applicable state securities laws or an exemption from such
registration and such qualification is available. Purchaser understands that
no
public market now exists for any of the securities issued by the Company, that
the Company has made no assurances that a public market will ever exist for
its
securities.
5. Restrictive
Legends.
The
Note and certificate representing underlying securities shall bear a legend
substantially in the following form:
[This
Note and the securities issuable upon conversion hereof] [“The securities
represented by this certificate] have not been registered under the Securities
Act of 1933, as amended, and may not be offered, sold or otherwise transferred,
pledged or hypothecated unless and until such securities are registered under
such Act or an opinion of counsel satisfactory to the Company is obtained to
the
effect that such registration is not required.”
The
foregoing legend shall be removed from the Note or certificates representing
Underlying Securities, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144(k) under the Securities
Act.
6. Miscellaneous.
6.1 Successors
and Assigns.
This
Agreement, and the rights and obligations of Purchaser hereunder, may be
assigned by Purchaser to any person or entity to which the Note or Underlying
Securities are transferred by Purchaser in compliance with the provisions of
this Agreement and the Ancillary Agreements and such transferee shall be deemed
a “Purchaser” for purposes of this Agreement; provided that such assignment of
rights shall be contingent upon the transferee providing a written instrument
to
the Company notifying the Company of such transfer and assignment and agreeing
in writing to be bound by the terms of this Agreement. The Company may not
assign its rights under this Agreement.
6.2 Survival.
Notwithstanding any investigation made by Purchaser, each of the representations
and warranties made herein shall survive for a period of two years from the
Closing Date. All covenants made herein shall survive the execution and delivery
of this Agreement and the Closing indefinitely unless otherwise specified
therein.
6.3 Expenses.
The
Company shall pay, at the Closing, the reasonable legal fees and disbursements
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the
Purchaser, in connection with the preparation of this Agreement and the other
agreements contemplated hereby and the closing of the transactions contemplated
hereby up to a maximum of $15,000 in the aggregate. If any party initiates
any
legal action arising out of or in connection with this Agreement or any of
the
Ancillary Agreements, the prevailing party in such legal action shall be
entitled to recover from the other party reasonable attorneys’ fees, expert
witness fees and expenses incurred by the prevailing party in connection
therewith.
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6.4 Brokers.
The
Company and Purchaser (i) represent and warrant to each other that it has not
retained a finder or broker in connection with the transactions contemplated
by
this Agreement, and (ii) will indemnify and save the other harmless from and
against any and all claims, liabilities or obligations with respect to brokerage
or finders’ fees or commissions or consulting fees in connection with the
transactions contemplated by this Agreement asserted by any person on the basis
of any statement or representation alleged to have been made by such
indemnifying party.
6.5 Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
6.6 Specific
Performance.
In
addition to any and all other remedies that may be available at law, in the
event of any breach of this Agreement, Purchaser shall be entitled to specific
performance of the agreements and obligations of the Company hereunder and
to
such other injunctive or other equitable relief as may be granted by a court
of
competent jurisdiction.
6.7 Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York (without reference to the conflicts of law
provisions thereof). All suits, actions or proceedings arising out of, or in
connection with, this Agreement or the transactions contemplated by this
Agreement shall be brought in any federal or state court of competent subject
matter jurisdiction sitting in New York, New York. Each of the parties hereto
by
execution and delivery of this Agreement, expressly and irrevocably (i) consents
and submits to the personal jurisdiction of any such courts in any such action
or proceeding; (ii) consents to the service of any complaint, summons, notice
or
other process relating to any such action or proceeding by delivery thereof
to
such party as set forth in Section 6.8 hereof; and (iii) waives any claim or
defense in any such action or proceeding based on any alleged lack of personal
jurisdiction, improper venue, forum non conveniens or any similar
basis.
6.8 Notices.
All
notices, requests, consents and other communications under this Agreement shall
be in writing and shall be deemed delivered (i) upon delivery when delivered
personally, (ii) three business days after being sent by registered or certified
mail, return receipt requested, postage prepaid, or (iii) one business day
after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
If
to the
Company:
▇▇▇
▇▇▇▇▇▇▇▇▇▇
Chief
Executive Officer
Green
Screen Interactive Software, LLC
▇▇▇
▇▇▇▇▇▇▇▇
▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Ph:
(▇▇▇)
▇▇▇-▇▇▇▇
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With
a
copy to:
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLC
▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ph: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
If
to any
Purchaser:
To
such
Purchaser’s address as set forth on its executed counterpart signature page
hereto.
Any
party
may give any notice, request, consent or other communication under this
Agreement using any other customary means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by
the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
6.9 Complete
Agreement.
This
Agreement (including its Exhibits) and the Ancillary Agreements constitute
the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
6.10 Amendments
and Waivers.
This
Agreement may be amended or terminated and the observance of any term of this
Agreement may be waived with respect to all parties to this Agreement (either
generally or in a particular instance and either retroactively or prospectively)
and with the written consent of the Company and the Purchaser. No waivers of
or
exceptions to any term, condition or provision of this Agreement, in any one
or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
6.11 Construction.
The
parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local or foreign statute or law shall
be
deemed also to refer to all rules and regulations promulgated thereunder and
any
applicable common law, unless the context requires otherwise. The word
“including” shall mean including, without limitation, and is used in an
illustrative sense rather than a limiting sense. Terms used with initial capital
letters will have the meanings specified, applicable to singular and plural
forms, for all purposes of this Agreement. Whenever the context may require,
any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
11
6.12 Counterparts;
Facsimile Signatures.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which shall constitute one and the same
document. This Agreement may be executed by facsimile signatures.
6.13 Section
Headings and References.
The
section headings are for the convenience of the parties and in no way alter,
modify, amend, limit or restrict the contractual obligations of the parties.
Any
reference in this agreement to a particular section or subsection shall refer
to
a section or subsection of this Agreement, unless specified
otherwise.
6.14 Delays
or Omissions.
No
delay or omission to exercise any right, power or remedy accruing to the Company
or Purchaser shall impair any such right, power or remedy of the Company or
such
holder, nor shall it be construed to be a waiver of any breach or default under
this Agreement, or an acquiescence therein, or of or in any similar breach
or
default thereafter occurring; nor shall any delay or omission to exercise any
right, power or remedy or any waiver of any single breach or default be deemed
a
waiver of any other right, power or remedy or breach or default theretofore
or
thereafter occurring. All remedies, either under this Agreement or by law,
otherwise afforded to the Company or Purchaser, shall be cumulative and not
alternative.
6.15 No
Third Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any person other than
the
parties hereto, their permitted successors and assigns.
6.16 Further
Assurances.
The
parties hereto agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents,
and
(c) to do such other acts and things, all as any other party to this Agreement
may reasonably request, for the purpose of carrying out the intent of this
Agreement, the Ancillary Agreements and the documents referred to herein and
therein.
{Remainder
of page left intentionally blank. Counterpart signature page(s) to
follow.}
12
COMPANY
COUNTERPART SIGNATURE PAGE TO
IN
WITNESS WHEREOF, the undersigned has executed this Note Purchase Agreement
as of
the date first written above.
GREEN
SCREEN INTERACTIVE SOFTWARE, INC.
By:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title:
CEO
PURCHASER
COUNTERPART SIGNATURE PAGE TO
IN
WITNESS WHEREOF, the undersigned has executed this Note Purchase Agreement
as of
the date first written above.
FOR
ENTITY PURCHASER:
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its:
President
Address
for Notice Purposes: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇ Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT
A
FORM
OF
NOTE
A-1
EXHIBIT
B
COLATERAL
PLEDGE AND SECURITY AGREEMENT
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COMPANY’S
DISCLOSURE SCHEDULE
D-1