Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made effective as of the
30th day of June, 2004 (the "Effective Date"), by and between AssuranceAmerica
Corporation, a Nevada corporation (the "Company"), ▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇")
and Heritage Assurance Partners, L.P., a Georgia limited partnership (the
"Purchaser").
For good and valuable consideration, including the mutual promises,
covenants and conditions hereinafter set forth, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Purchase of Shares.
1.1 Purchase of Stock. Subject to the terms and conditions of this
Agreement, the Company hereby sells to Purchaser, and Purchaser hereby purchases
from the Company, Two Hundred Forty Thousand (240,000) shares of the Company's
Series A Convertible Preferred Stock, $0.01 par value per share (the "Series A
Preferred Stock"), at a purchase price of $5.00 per share. The shares of Series
A Preferred Stock to be purchased from the Company by Purchaser are sometimes
herein referred to as the "Shares."
1.2 Closing; Delivery.
(a) The purchase and sale of the Shares shall take place
remotely via the exchange of documents and signatures, at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
at 10:00 a.m. on June 30, 2004, or at such other time and place as the Company
and Purchaser mutually agree upon, orally or in writing (which time and place
are designated as the "Initial Closing"). In the event there is more than one
closing, the term "Closing" shall apply to each such closing unless otherwise
specified.
(b) At each Closing, the Company shall deliver to Purchaser a
certificate representing the Shares being purchased by Purchaser at such Closing
against payment of the purchase price therefore by check payable to the Company
or by wire transfer to a bank account designated by the Company.
1.3 Sale of Additional Shares of Preferred Stock. After the Initial
Closing, the Company may sell, on the same terms and conditions as those
contained in this Agreement, up to 360,000 additional shares of Series A
Preferred Stock (the "Additional Shares"), to one or more purchasers (the
"Additional Purchasers") reasonably acceptable to Purchaser, provided that (i)
such subsequent sale is consummated prior to 30 days after the Initial Closing,
and (ii) each Additional Purchaser shall become a party to this Agreement by
executing and delivering a counterpart signature page to this Agreement.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to Purchaser that, except as set forth on the Disclosure
Schedule attached as Schedule A to this Agreement which exceptions shall be
deemed to be part of the representations and warranties made hereunder, the
following representations are true and complete as of the date of the Initial
Closing, except as otherwise indicated. The Disclosure Schedule shall be
arranged in sections corresponding to the numbered and lettered sections and
subsections contained in this Section 2, and the disclosures in any section or
subsection of the Disclosure Schedule shall qualify other sections and
subsections in this
Section 2 only to the extent it is readily apparent from a reading of the
disclosure that such disclosure is applicable to such other sections and
subsections.
2.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. The Company has the requisite corporate power to own and operate its
properties and assets, and to carry on its business as presently conducted and
as proposed to be conducted.
2.2 Corporate Power. The Company has all requisite legal and
corporate power to enter into this Agreement, to sell the Shares hereunder, and
to carry out and perform its obligations under the terms of this Agreement.
2.3 Capitalization. The Company's entire authorized capital stock
consists of 85,000,000 shares, of which 80,000,000 shares are common stock,
$0.01 par value per share ("Common Stock"), 45,211,090 shares of which are
issued and presently outstanding, and 5,000,000 shares are preferred stock,
$0.01 par value per share ("Preferred Stock"), none of which are presently
outstanding. The Company has reserved 5,000,000 shares of Common Stock for
issuance to officers, directors, employees and consultants of the Company
pursuant to its 2000 Stock Option Plan duly adopted by the Board of Directors
and approved by the Company stockholders (the "Stock Plan"). Of such reserved
shares of Common Stock, no shares have been issued pursuant to restricted stock
purchase agreements, options to purchase 2,438,918 shares have been granted and
are currently outstanding, and 2,561,082 shares of Common Stock remain available
for issuance to officers, directors, employees and consultants pursuant to the
Stock Plan.
2.4 Authorization. All corporate action on the part of the Company,
its officers, board of directors (the "Board") and shareholders necessary for
the sale and issuance of the Shares pursuant hereto and the performance of the
Company's obligations hereunder has been taken. This Agreement constitutes a
valid and binding obligation of the Company, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy,
reorganization, insolvency or moratorium laws or other similar laws affecting
creditors' rights generally or general principles of equity whether asserted in
a proceeding at law or in equity. The Shares are validly issued, fully paid and
nonassessable, free of any liens or encumbrances, with all original issuance
taxes paid thereon.
2.5 Brokers. The Company has no contract, arrangement or
understanding with any broker, finder, or similar agent with respect to the
transactions contemplated by this Agreement.
2.6 Subsidiaries. Except as set forth on Section 2.6 of Schedule A,
the Company does not currently own or control, directly or indirectly, any
interest in any other corporation, partnership, trust, joint venture, limited
liability company, association, or other business entity. The Company is not a
participant in any joint venture, partnership or similar arrangement.
2.7 Valid Issuance of Shares. The Shares, when issued, sold and
delivered in accordance with the terms and for the consideration set forth in
this Agreement, will be validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under this
Agreement, that certain Registration Rights Agreement of even date herewith by
and among the Company and Purchaser (the "Registration Rights Agreement"),
applicable state and federal securities laws and liens or encumbrances created
by or imposed by Purchaser. Assuming the accuracy of the representations of
Purchaser in Section 3 of this Agreement, the Shares will be issued in
compliance with all applicable federal and state securities laws. The Common
Stock issuable upon conversion of the Shares has been duly reserved for
issuance, and upon issuance in accordance with the terms of the
Amended and Restated Articles of Incorporation of the Company (the "Restated
Articles"), will be validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under this
Agreement, the Registration Rights Agreement, applicable federal and state
securities laws and liens or encumbrances created by or imposed by Purchaser.
Based in part upon the representations of Purchaser in Section 3 of this
Agreement, the Common Stock issuable upon conversion of the Shares will be
issued in compliance with all applicable federal and state securities laws.
2.8 Governmental Consents and Filings. Assuming the accuracy of the
representations made by Purchaser in Section 3 of this Agreement, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority is required on the part of the Company in connection with
the consummation of the transactions contemplated by this Agreement, except for
(i) the filing of the Certificate of Designations, substantially in the form
attached hereto (the "Certificate of Designations"), which will have been filed
as of the Initial Closing, and (ii) filings pursuant to Regulation D of the
Securities Act, and applicable state securities laws, which have been made or
will be made in a timely manner.
2.9 Litigation. Except as set forth in Section 2.9 of Schedule A,
there is no claim, action, suit, proceeding, arbitration, complaint, charge or
investigation pending or to the Company's knowledge, currently threatened (i)
against the Company or any officer, director or key employee of the Company;
(ii) that questions the validity of the this Agreement or the right of the
Company to enter into it, or to consummate the transactions contemplated by this
Agreement; or (iii) that would reasonably be expected to have, either
individually or in the aggregate, a material adverse effect on the business,
assets (including intangible assets), liabilities, financial condition,
property, prospects or results of operations of the Company (a "Material Adverse
Effect"). Neither the Company nor, to the Company's knowledge, any of its
officers or directors, is a party or is named as subject to the provisions of
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality. Except as set forth in Section 2.9 of Schedule A,
there is no action, suit, proceeding or investigation by the Company pending or
which the Company intends to initiate. The foregoing includes, without
limitation, actions, suits, proceedings or investigations pending or threatened
in writing (or any basis therefor known to the Company) involving the prior
employment of any of the Company's employees, their services provided in
connection with the Company's business, or any information or techniques
allegedly proprietary to any of their former employers, or their obligations
under any agreements with prior employers.
2.10 Compliance with Other Instruments. The Company is not in
violation or default (i) of any provisions of its Restated Articles or Bylaws,
(ii) of any instrument, judgment, order, writ or decree, (iii) under any note,
indenture or mortgage, or (iv) under any lease, agreement, contract or purchase
order to which it is a party or by which it is bound, or of any provision of
federal or state statute, rule or regulation applicable to the Company, the
violation of which would have a Material Adverse Effect. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either (i) a default under any such provision, instrument, judgment,
order, writ, decree, contract or agreement or (ii) an event which results in the
creation of any lien, charge or encumbrance upon any assets of the Company or
the suspension, revocation, forfeiture, or nonrenewal of any material permit or
license applicable to the Company.
2.11 Financial Statements. The Company has delivered to Purchaser
its audited financial statements as of December 31, 2002 and December 31, 2003
and its unaudited financial
statements (including balance sheet, income statement and statement of cash
flows) as of for the three-month period ended March 31, 2004 (collectively, the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods indicated. The Financial Statements fairly present
in all material respects the financial condition and operating results of the
Company as of the dates, and for the periods, indicated therein, subject in the
case of the unaudited financial statements to normal year-end audit adjustments.
Except as set forth in the Financial Statements, the Company has no material
liabilities or obligations, contingent or otherwise, other than (i) liabilities
incurred in the ordinary course of business subsequent to December 31, 2003 and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business and not required under generally accepted accounting principles to
be reflected in the Financial Statements, which, in both cases, individually and
in the aggregate would not have a Material Adverse Effect. The Company maintains
and will continue to maintain a standard system of accounting established and
administered in accordance with generally accepted accounting principles.
2.12 Permits. The Company and each of its subsidiaries has all
franchises, permits, licenses and any similar authority necessary for the
conduct of its business, the lack of which could reasonably be expected to have
a Material Adverse Effect. The Company is not in default in any material respect
under any of such franchises, permits, licenses or other similar authority.
2.13 Disclosure. The Company has provided Purchaser with all of the
information reasonably available to it that Purchaser has requested for deciding
whether to acquire Shares. All information that the Company believes is
reasonably necessary to enable Purchaser to make such decision has either been
provided to Purchaser or is included in the Company's filings with the
Securities and Exchange Commission (the "SEC"). Neither this Agreement, nor any
and all certificates, instruments or written statements furnished or made to
Purchaser by or on behalf of the Company in connection with this Agreement,
taken as a whole, and including any corrective materials furnished or made
available to Purchaser prior to the date hereof, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained herein and therein not
misleading in light of the circumstances under which they were made. The Company
knows of no information or fact that has or would have a Material Adverse Effect
that has not been disclosed to Purchaser in writing or disclosed in the
Company's filings with the SEC.
3. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to the Company as follows:
3.1 Investment Representations. This Agreement is made with
Purchaser upon the understanding as a specific representation to the Company by
Purchaser that:
(a) the Shares purchased hereunder will be acquired for
Purchaser's own account and not with a view to the distribution of any part
thereof, and Purchaser has no present intention of selling, granting
participation in, or otherwise distributing the same;
(b) Purchaser acknowledges that Purchaser has the knowledge
and experience in financial and business matters so as to be capable of
evaluating the merit and risk of and protecting Purchaser's own interests in
connection with Purchaser's purchase of such Shares, has had the opportunity to
ask such questions of the Company and to review such documents as Purchaser
deemed necessary in connection with its purchase of Shares, including those Risk
Factors of the Company dated May 18, 2004, and attached hereto as Exhibit "A",
is able to fend for Purchaser in the transactions
contemplated by this Agreement and has the ability to bear the economic risk of
Purchaser's investment pursuant to this Agreement;
(c) Purchaser is an "accredited investor," as that term is
defined in Rule 501 promulgated under the Securities Act of 1933, as amended
(the "Securities Act"); and
(d) Purchaser understands that such Shares are characterized
as "restricted securities" under the federal securities laws and certain state
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Shares may be resold without registration under the
Securities Act and those state securities laws only in certain limited
circumstances. In this connection, Purchaser represents that Purchaser is
familiar with Rule 144 promulgated under the Securities Act ("Rule 144"), as
presently in effect, understands the resale limitations imposed thereby and by
the Securities Act, and is aware that the Company is under no obligation to
create a public market for its securities.
3.2 Brokers. Purchaser has no contract, arrangement or understanding
with any broker, finder, or similar agent with respect to the transactions
contemplated by this Agreement.
4. Transfer of Shares
4.1 Restrictive Legends. Each certificate evidencing Shares issued
or sold under this Agreement shall contain or otherwise be imprinted with
suitable legends in substantially the following form:
"The securities evidenced by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933
(the "Securities Act") in reliance on certain exemptions contained
therein, or under the securities act of any state (the "State Acts") in
reliance on certain exemptions contained therein. These securities may not
be sold, transferred or otherwise disposed of except in a transaction (a)
registered under the Securities Act or exempt from registration thereunder
and registered under the applicable State Acts or exempt from registration
thereunder, or (b) otherwise in compliance with the Securities Act and the
applicable State Acts.
The Company will furnish without charge to each stockholder who so
requests the powers, designations, preferences, relative, participating,
optional or other special rights of the Series A Preferred Stock, and the
qualifications, limitations or restrictions of such preferences and/or
rights.
This security is subject to transfer restrictions contained in a certain
Stock Purchase Agreement dated as of June 30, 2004, and no transfer of the
security shall be made unless the conditions specified in said Agreement
have been fulfilled. A copy of said Agreement is on file and available for
inspection at the principal offices of the Company."
The Company is hereby authorized to place "stop transfer" instructions on
its records or to instruct any transfer agent to prevent the transfer of Shares
except in conformity with this Agreement.
4.2 Securities Law Compliance. Purchaser shall not transfer any
Shares until Purchaser has first given written notice to the Company describing
briefly the manner of any such proposed transfer and until (i) the Company has
received from Purchaser's counsel an opinion
(reasonably satisfactory in form and substance to the Company's counsel) that
such transfer can be made without compliance with the registration provisions of
the Securities Act or any state securities act; (ii) Purchaser shall have
complied with Rule 144 and applicable state securities act requirements; or
(iii) a registration statement filed by the Company is declared effective by the
SEC and governing state securities act authorities or steps necessary to perfect
exemptions from such registration are completed.
4.3 Transfers to Affiliates. Purchaser may transfer its Shares to
any Affiliate of Purchaser without being required to provide the opinion of
counsel referred to in Section 4.2. For purposes of this Section 4, "Affiliate"
shall be defined to mean any other person or entity, directly or indirectly,
controlling or controlled by or under direct or indirect common control with
Purchaser.
5. Closing Conditions
5.1 Conditions to Purchaser's Obligations at Closing. The
obligations of Purchaser to purchase Shares at the Initial Closing or any
subsequent Closing are subject to the fulfillment, on or before such Closing, of
each of the following conditions, unless otherwise waived:
(a) Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects as of such Closing, except that any such representations
and warranties shall be true and correct in all respects where such
representation and warranty is qualified with respect to materiality in Section
2.
(b) Performance. The Company shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
such Closing.
(c) Compliance Certificate. The President of the Company shall
deliver to Purchaser at such Closing a certificate certifying that the
conditions specified in Sections 5.1(a) and 5.1(b) have been fulfilled.
(d) Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Shares pursuant to this Agreement shall be obtained and effective as of
such Closing.
(e) Board of Directors. As of the Initial Closing, the
authorized size of the Board shall be nine (9) members and the Board shall be
comprised of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Quill ▇. ▇▇▇▇▇▇,
▇▇▇▇ ▇. Cay III and ▇▇▇ ▇▇▇▇▇▇▇▇▇ and two vacancies. If and when an aggregate of
400,000 shares of Series A Preferred Stock are sold to Purchaser, then an
individual to be designated by Purchaser shall be added to the Board.
(f) Certificate of Designations. The Company shall have filed
the Certificate of Designations with the Secretary of State of Nevada on or
prior to the Closing, which shall continue to be in full force and effect as of
the Closing.
(g) Secretary's Certificate. The Secretary of the Company
shall have delivered to Purchaser at the Closing a certificate certifying (i)
the Bylaws of the Company, (ii) resolutions of the Board of Directors of the
Company approving this Agreement and the transactions contemplated under this
Agreement, and (iii) resolutions of the Board of Directors of the Company
approving the Certificate of Designations.
(h) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Purchaser, and Purchaser (or its counsel) shall have received all
such counterpart original and certified or other copies of such documents as
reasonably requested. Such documents may include good standing certificates.
(i) Preemptive Rights. The Company shall have fully satisfied
(including with respect to rights of timely notification) or obtained
enforceable waivers in respect of any preemptive or similar rights directly or
indirectly affecting any of its securities.
(j) Completion of Due Diligence Examination. Purchaser shall
have completed to its satisfaction a due diligence examination of the Company.
5.2 Conditions of the Company's Obligations at Closing. The
obligations of the Company to sell Shares to Purchaser at the Initial Closing or
any subsequent Closing are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived:
(a) Representations and Warranties. The representations and
warranties of Purchaser contained in Section 3 shall be true and correct in all
material respects as of such Closing.
(b) Performance. Purchaser shall have performed and complied
with all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
such Closing.
(c) Qualifications. All authorizations, approvals or permits,
if any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Shares pursuant to this Agreement shall be obtained and effective as of
the Closing.
(d) General Partner's Certificate. The General Partner of
Purchaser shall deliver to the Company at such Closing a certificate certifying
(i) that the conditions specified in Sections 5.2(a) and 5.2(b) have been
fulfilled and (ii) the resolutions of the General Partner of Purchaser approving
this Agreement and the transactions contemplated under this Agreement.
6. Certain Agreements of ▇▇▇▇▇▇▇.
6.1 Right of Co-Sale. ▇▇▇▇▇▇▇ agrees that he will not, prior to the
date specified in Section 6.2, sell, or agree to sell, for value any shares of
the Company's capital stock owned by him either jointly or individually to any
third party (except for sales of not more than 20% of the number of shares of
the Company's capital stock owned by ▇▇▇▇▇▇▇ on the date of this Agreement, the
unused portion of which shall be usable in later periods, all such computations
to be on an as-converted to Common Stock basis) without first giving written
notice in reasonable detail to Purchaser at least 20 days prior to such sale or
agreement to sell and affording Purchaser the opportunity to elect, within 20
days of such notice, to participate in such sale, or agreement to sell, on a pro
rata basis and on the same terms and conditions as those applicable to ▇▇▇▇▇▇▇.
Notwithstanding anything to the contrary contained herein, prior to the date
specified in Section 6.2, once ▇▇▇▇▇▇▇ has sold more than 20% of his shares in
the aggregate, Purchaser's co-sale rights shall apply to all future sales by
▇▇▇▇▇▇▇.
For purposes of this Section 6.1, the term "pro rata basis" shall
mean that Purchaser shall be entitled to participate in such sale or agreement
to sell in the proportion that the number of the shares of Common Stock issued
or issuable upon conversion of the Shares, and any securities issued as a
dividend or other distribution with respect to, or in exchange or in replacement
thereof (the "Purchaser Shares") then held by Purchaser bears to the sum of such
number of the Purchaser Shares and the number of shares of Common Stock then
owned (either jointly or individually) by ▇▇▇▇▇▇▇, or issuable upon conversion
of other shares of the Company's capital stock so owned by ▇▇▇▇▇▇▇.
Notwithstanding anything herein to the contrary, the rights of Purchaser
provided for in this Section 6.1 shall not apply to sales, gifts or other
dispositions by ▇▇▇▇▇▇▇ to (i) a member of ▇▇▇▇▇▇▇'▇ immediate family, including
for this purpose his spouse, parents, parents-in-law, issue, nephews, nieces,
brothers, brothers-in-law, sisters, sisters-in-law, children-in-law and
grandchildren-in-law; (ii) a trust or partnership set up for the benefit of one
or more of the persons set forth in (i); (iii) an heir, legatee or legal
representative of ▇▇▇▇▇▇▇ or (iv) any non-profit organization.
6.2 Term. The provisions of this Section 6 shall continue in effect
until the earliest to occur of: (i) such time as ▇▇▇▇▇▇▇ ceases to own any
capital stock of the Company, (ii) such time as Purchaser ceases to own any
Shares; (iii) the involuntary termination or termination without cause of the
employment of ▇▇▇▇▇▇▇ with the Company; or (iv) the second anniversary of the
date hereof.
7. Issuances of Stock. Subject to Section 7.4, each time the Company
proposes to offer any shares of, or securities convertible into or exercisable
for any shares of, any class of its capital stock ("Company Securities"), the
Company shall first offer such Company Securities to Purchaser in accordance
with the following provisions:
7.1 The Company shall deliver a written notice (an "Issuance
Notice") to Purchaser stating (i) its bona fide intention to offer such Company
Securities, (ii) the number of such Company Securities to be offered, and (iii)
the price and terms, if any, upon which it proposes to offer such Company
Securities.
7.2 By written notification received by the Company within 20 days
after receipt of the Issuance Notice, Purchaser may elect to purchase or obtain,
at the price and on the terms specified in the Issuance Notice, up to that
portion of such Company Securities which equals the proportion that the number
of shares of Common Stock then held by Purchaser, including the number of shares
of Common Stock into which Purchaser's Series A Preferred Stock could then be
converted ("Conversion Stock"), bears to the total number of shares of Common
Stock of the Company then outstanding (assuming full conversion and exercise of
all outstanding convertible or exercisable securities as of the date of the
Issuance Notice). Promptly following the completion of the foregoing process and
determination of the number of Company Securities elected to be obtained by
Purchaser, the Company and Purchaser shall consummate and close the purchase and
sale of the Company Securities.
7.3 In the event that an offering of Company Securities is not fully
subscribed within ninety (90) days after the commencement of such offering,
Purchaser shall have the right to purchase any Company Securities not subscribed
for in such offering.
7.4 The right to purchase Company Securities pursuant to this
Section 7 shall not be applicable to: (i) the issuance or sale of shares of
Common Stock (or options therefor) pursuant to an equity-based compensation plan
or similar arrangement approved by the Board of Directors, (ii) any issuance of
Company Securities to Purchaser pursuant to this Agreement; and (iii) any public
offering pursuant to an effective registration statement under the Securities
Act of 1933, as amended, covering
any Company Securities with aggregate proceeds to the Company, at the public
offering price, of at least $20,000,000, before underwriting commissions and
expenses, and at a per share price of at least three times the then-current
conversion price of the Series A Preferred Stock (a "Qualified Offering").
7.5 The covenants set forth in this Section 7 shall be terminated
and be of no force or effect upon the earlier of (i) the closing of a Qualified
Offering or (ii) the date Purchaser no longer owns the Shares or Common Stock
received by Purchaser upon the conversion of the Shares to Common Stock.
8. Miscellaneous.
8.1 Successors and Assigns. All covenants and agreements contained
in this Agreement made by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of such
parties, except as otherwise provided herein.
8.2 Governing Law. The internal laws of the State of Georgia
(regardless of conflict of laws principles) shall govern all issues concerning
the construction, validity and interpretation of this Agreement. The parties
agree that any dispute or controversy arising out of or relating to this
Agreement shall be brought exclusively in the applicable federal or state courts
located in Atlanta, Georgia.
8.3 Survival. Any and all representations and warranties of the
Company shall terminate and expire eighteen (18) months from the Effective Date
and thereafter no claim may be asserted on account of an alleged breach thereof.
8.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto or contemplated hereby constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and supercedes any prior agreement between the
parties. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated except by a written instrument signed (a) in the case
of an amendment, waiver, discharge or termination (a "Modification") to Section
6, by ▇▇▇▇▇▇▇ and Purchaser; and (b) in the case of a Modification to any other
provision of this Agreement, by the Company and Purchaser.
8.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be made by hand delivery,
first-class mail (registered or certified, return receipt requested),
telecopier, or overnight air courier guaranteeing next day delivery, addressed
as follows: (a) if to Purchaser, at Heritage Assurance Partners, L.P., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and (b) if to the
Company, at AssuranceAmerica Corporation, RiverEdge One, Suite 600, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to G. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, One Atlantic Center, Suite
3500, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other
address as the party receiving such notice shall have properly designated to the
other party hereto in writing. Each such notice shall be deemed given at the
time delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
8.6 Expenses. At the Initial Closing, the Company shall pay the
reasonable fees and expenses of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, not to exceed $10,000
(plus reasonable out of pocket expenses).
8.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of the Shares upon any breach or default
of the Company under this Agreement, shall impair any such right, power or
remedy of such holder, nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereunder occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement, or by law or
otherwise afforded to any holder, shall be cumulative and not alternative.
8.8 Counterparts. This Agreement may be executed in any number of
counterparts, some of which may have signature pages differing as to form, each
of which shall be enforceable against the parties actually executing such
counterparts and all of which together shall constitute one instrument.
8.9 Severability. If any provision of this Agreement, or its
application to any person or circumstances, is invalid or unenforceable, then
the remainder of this Agreement or the application of such provision to other
persons or circumstances, shall not be affected thereby.
[SIGNATURES ON NEXT PAGE]
The foregoing Agreement is hereby executed under seal as of the date first
above written.
THE COMPANY:
ASSURANCEAMERICA CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President and
Chief Executive Officer
▇▇▇▇▇▇▇:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇
PURCHASER:
HERITAGE ASSURANCE PARTNERS, L.P.
By: HERITAGE FUND ADVISORS, LLC,
General Partner
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇
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Its: Treasurer
-------------------------------
