Exhibit 4.1
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Void after March 5, 2012
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Warrant No. [___]
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THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY
LAWS.
NOVINT TECHNOLOGIES, INC.
COMMON STOCK PURCHASE WARRANT
Novint Technologies, Inc. (the
Company
), having its principal office as of the date
hereof at 4109 Bryan Ave NW, Albuquerque, New Mexico, hereby certifies that, for value received,
, or registered assigns, is entitled, subject to the terms and conditions set forth
below, to purchase from the Company at any time on or from time to time after the later of (i)
March 5, 2007 and (ii) the filing of the Restated Certificate, and before 5:00 P.M., New York City
time, on March 5, 2012 (the
Expiration Date
),
fully paid and non-assessable
shares of Common Stock (as defined below), at the initial Purchase Price per share (as defined
below) of $1.50. The number of such shares of Common Stock and the Purchase Price per share are
subject to adjustment as provided in Section 5.
Background.
The Company agreed to issue Warrants, including this Warrant, to purchase
up to a maximum of 10,000,000 shares of Common Stock (subject to adjustment as provided in Section
5) in connection with the Companys private placement up to a maximum of 10,000,000 units
(
Units
), each Unit consisting of (i) one share of Common Stock, and (ii) one Warrant.
As used herein the following terms, unless the context otherwise requires, have the following
respective meanings:
Aggregate Purchase Price
has the meaning set forth in Section 3.1.
Blue Sky Laws
means any state securities or blue sky laws.
Board of Directors
means the board of directors of the Company.
Business Day
means any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required by law to remain closed.
Buy-In
has the meaning set forth in Section 4.
Company
includes the Company and any corporation which shall succeed to or assume
the obligations of the Company hereunder. The term corporation shall include an association,
joint stock company, business trust, limited liability company or other similar organization.
Common Stock
means the Companys Common Stock, $.01 par value per share, authorized
as of the date hereof, and any stock of any class or classes (however designated) hereafter
authorized upon reclassification thereof, which, if the Board of Directors declares any dividends
or distributions, has the right to participate in the distribution of earnings and assets of the
Company after the payment of dividends or other distributions on any shares of capital stock of the
Company entitled to a preference and in the voting for the election of directors of the Company.
Convertible Securities
means (i) options to purchase or rights to subscribe for
Common Stock, (ii) securities by their terms convertible into or exchangeable for Common Stock or
(iii) options to purchase or rights to subscribe for such convertible or exchangeable securities.
Delivery Date
has the meaning set forth in Section 4.
Exchange Act
means the Securities Exchange Act of 1934 as the same shall be in
effect at the time.
Holder
means any record owner of Warrants or Underlying Securities.
Investor
has the meaning set forth in the Unit Subscription Agreement.
Investor Rights Agreement
has the meaning set forth in Section 1.
Market Price
means, for one share of Common Stock at any date (i) if the principal
trading market for such securities is an exchange, the average of the closing sale prices per share
for the last ten previous trading days in which a sale was reported, as officially reported on any
consolidated tape, (ii) if the principal market for such securities is the over-the-counter market,
the average of the closing sale prices per share on the last ten previous trading days in which a
sale was reported as set forth by Nasdaq or, (iii) if the security is not listed on an exchange or
Nasdaq, the average of the closing sale prices per share on the last ten previous trading days in
which a sale was reported as set forth in the National Quotation Bureau sheet listing such
securities for such days. Notwithstanding the foregoing, if there is no reported closing sale
price, as the case may be, reported on any of the ten trading days preceding the event requiring a
determination of Market Price hereunder, then the Market Price shall be the average of the high bid
and asked prices for the last ten previous trading days in which a sale was reported; and if there
is no reported high bid and asked prices, as the case may be, reported on
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any of the ten trading days preceding the event requiring a determination of Market Price
hereunder, then the Market Price shall be determined in good faith by resolution of the Board of
Directors. The Market Price of Other Securities, if any, shall be determined in the same as Common
Stock.
Nasdaq
means the Nasdaq SmallCap Market or Nasdaq Stock Market.
Notice
has the meaning set forth in Section 21.
Original Issue Date
means March ___, 2007.
Other Securities
refers to any stock (other than Common Stock) and other securities
of the Company or any other Person (corporate or otherwise) which the Holders of the Warrants at
any time shall be entitled to receive, or shall have received, upon the exercise of the Warrants,
in lieu of or in addition to Common Stock, or which at any time shall be issuable or shall have
been issued in exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 5 or 6.
Person
means any individual, sole proprietorship, partnership, corporation, limited
liability company, business trust, unincorporated association, joint stock corporation, trust,
joint venture or other entity, any university or similar institution, or any government or any
agency or instrumentality or political subdivision thereof.
Purchase Price per share
means $1.50 per share, as may be adjusted from time to time
in accordance with Section 5 or 6.
Registered
and
Registration
refer to a registration effected by filing a
registration statement in compliance with the Securities Act, to permit the disposition of
Underlying Securities issued or issuable upon the exercise of Warrants, and any post-effective
amendments and supplements filed or required to be filed to permit any such disposition.
Restated Certificate
means an amendment to the Certificate of Incorporation of the
Company prepared for filing in the State of Delaware which provides for an increase in the
authorized capital shares of the Company.
Securities Act
means the Securities Act of 1933 as the same shall be in effect at
the time.
Underlying Securities
means any Common Stock or Other Securities issued or issuable
upon exercise of Warrants.
Unit Subscription Agreement
means the Unit Subscription Agreement, dated as of
February 23, 2007, among the Company and the Investors.
Warrant
means, as applicable, (i) the Warrants dated as of the date hereof,
originally issued by the Company pursuant to the Unit Subscription Agreement, of which this Warrant
is one, evidencing rights to purchase up to a maximum 10,000,000 shares of Common Stock, and all
Warrants issued upon transfer, division or combination of, or in substitution for,
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any thereof (all Warrants shall at all times be identical as to terms and conditions and date,
except as to the number of shares of Common Stock for which they may be exercised) or (ii) each
right as set forth in this Warrant to purchase one share of Common Stock, as adjusted from time to
time in accordance with Section 5 or 6.
1.
Registration, etc.
The Holder shall have the rights to registration of Underlying
Securities issuable upon exercise of the Warrants that are set forth in the Investor Rights
Agreement, dated the Original Issue Date, among the Company and each of the Investors (the
Investor Rights Agreement).
2.
Sale or Exercise Without Registration
. If, at the time of any exercise, transfer
or surrender for exchange of a Warrant or of Underlying Securities previously issued upon the
exercise of Warrants, such Warrant or Underlying Securities shall not be registered under the
Securities Act, the Company may require, as a condition of allowing such exercise, transfer or
exchange, that the Holder or transferee of such Warrant or Underlying Securities, as the case may
be, furnish to the Company an opinion of counsel, reasonably satisfactory to the Company, to the
effect that such exercise, transfer or exchange may be made without registration under the
Securities Act and without registration or qualification under any applicable Blue Sky Laws,
provided that nothing contained in this Section 2 shall relieve (a) the Company from complying with
any request for registration pursuant to the Registration Rights Agreement or (b) the Holder from
its obligations under the Unit Subscription Agreement.
3.
Exercise of Warrant
.
3.1.
Exercise in Full
. Subject to the provisions hereof, this Warrant may be
exercised in full by the Holder hereof by surrender of this Warrant, with the form of
subscription at the end hereof duly executed by such Holder, to the Company at its principal
office as set forth at the head of this Warrant (or such other location as the Company from
time to time may advise the Holder in writing), accompanied by payment, in cash or by
certified or official bank check payable to the order of the Company, in the amount obtained
(the
Aggregate Purchase Price
) by multiplying (a) the number of shares of Common
Stock then issuable upon exercise of this Warrant by (b) the Purchase Price per share on
the date of such exercise.
3.2.
Partial Exercise
. Subject to the provisions hereof, this Warrant may be
exercised in part by surrender of this Warrant in the manner and at the place provided in
Section 3.1 except that the amount payable by the Holder upon any partial exercise shall be
the amount obtained by multiplying (a) the number of shares of Common Stock designated by
the Holder in the subscription at the end hereof by (b) the Purchase Price per share on the
date of such exercise. Upon any such partial exercise, the Company at its expense shall
forthwith issue and deliver to or upon the order of the Holder hereof a new Warrant or
Warrants of like tenor, in the name of the Holder hereof or as such Holder (upon payment by
such Holder of any applicable transfer taxes and subject to the provisions of Section 2) may
request, calling in the aggregate on the face or faces thereof for the number of shares of
Common Stock equal to the number of such shares issuable prior to such partial exercise of
this Warrant minus the number of such shares designated by the Holder in the subscription at
the end hereof.
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3.3.
Company to Reaffirm Obligations
. The Company shall, at the time of any
exercise of this Warrant, upon the request of the Holder hereof, acknowledge in writing its
continuing obligation to afford to such Holder any rights (including, without limitation,
any right to registration of the Underlying Securities, if any) to which such Holder shall
continue to be entitled after such exercise in accordance with the provisions of this
Warrant;
provided
, however, that if the Holder of this Warrant shall fail to make
any such request, such failure shall not affect the continuing obligation of the Company to
afford such Holder any such rights.
3.4.
Certain Exercises
. If an exercise of this Warrant is to be made in
connection with a registered public offering or sale of the Company, such exercise may, at
the election of the Holder, be conditioned on the consummation of the public offering or
sale of the Company, in which case such exercise shall not be deemed effective until the
consummation of such transaction.
3.5.
Limited Net Issue Exercise
. If at any time or from time to time after the
Mandatory Registration Effective Date or Mandatory Subsequent Registration Date with respect
to the Underlying Securities issuable upon exercise of this Warrant (as the case may be) (as
such terms are defined in the Investor Rights Agreement), to the extent there is no
effective registration statement registering the resale of the Underlying Securities by the
Holder, this Warrant may also be exercised at such time by means of a Net Issue Exercise
in which the Holder shall be entitled to receive Underlying Securities equal to the value of
this Warrant (or the portion thereof being exercised by Net Issue Exercise) by surrender of
this Warrant to the Company together with notice of such Net Issue Exercise, in which event
the Company shall issue to Holder a number of Underlying Securities computed as of the date
of surrender of this Warrant to the Company using the following formula:
X =
Y x (A-B)
A
Where:
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X =
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the number of Underlying Securities to be
issued to Holder pursuant to this Section 3.5;
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Y =
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the number of Underlying Securities otherwise
purchasable under this Warrant, or any lesser number of Underlying
Securities as to which this Warrant is being exercised (at the date of
such calculation);
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A =
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the Market Price of (at the date of such calculation);
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B =
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the Purchase Price (as adjusted to the date of such calculation).
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4.
Delivery of Stock Certificates, etc., on Exercise; Buy-In
.
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(a) As soon as practicable after the exercise of this Warrant in full or in part, and in any
event within ten Business Days thereafter (the
Delivery Date
), the Company at its own
expense (including the payment by it of any applicable issue taxes) shall cause to be issued in the
name of and delivered to the Holder hereof, or as such Holder (upon payment by such Holder of any
applicable transfer taxes and subject to the provisions of Section 2) may direct, a certificate or
certificates for the number of fully paid and non-assessable shares of Common Stock or Other
Securities to which such Holder shall be entitled upon such exercise, plus, in lieu of any
fractional share to which such Holder would otherwise be entitled, cash equal to such fraction
multiplied by the then current Market Price of one full share.
(b) Issuance of Certificates. If the Company fails to deliver to the Holder a certificate or
certificates representing the Underlying Securities by the third (3rd) trading day following the
Delivery Date (or such longer or shorter time is then required by the SEC regulations on the
settlement of trades), then the Holder will have the right to rescind such exercise. In addition
to any other rights available to the Holder, if the Company fails to deliver to the Holder a
certificate or certificates representing the Underlying Securities pursuant to an exercise by the
fifth (5th) trading day after the Delivery Date, and if after such day the Holder is required by
its broker to purchase (in an open market transaction or otherwise) securities to deliver in
satisfaction of a sale by the Holder of the Underlying Securities which the Holder anticipated
receiving upon such exercise (a
Buy-In
), then the Company shall (1) pay in cash to the
Holder the amount by which (x) the Holders total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(A) the number of Underlying Securities that the Company was required to deliver to the Holder in
connection with the exercise at issue times (B) the price at which the sell order giving rise to
such purchase obligation was executed, and (2) at the option of the Holder, either reinstate the
portion of the Warrant and equivalent number of Underlying Securities for which such exercise was
not honored or deliver to the Holder the number of Underlying Securities that would have been
issued had the Company timely complied with its exercise and delivery obligations hereunder. For
example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price
giving rise to such purchase obligation of $10,000, under clause (1) of the immediately preceding
sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the
Company written notice indicating the amounts payable to the Holder in respect of the Buy-In,
together with applicable confirmations and other evidence reasonably requested by the Company.
Nothing herein shall limit a Holders right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific performance or injunctive
relief with respect to the Companys failure to timely deliver certificates representing Underlying
Securities upon exercise of the Warrant as required pursuant to the terms hereof.
5.
Adjustment for Stock Splits; Dividends
. The number and kind of securities
purchasable upon the exercise of this Warrant and the Purchase Price shall be subject to adjustment
from time to time upon the happening of any of the following. In case the Company shall (i) pay a
dividend in shares of Common Stock or make a distribution in shares of Common Stock to holders of
its outstanding Common Stock, (ii) subdivide its outstanding shares of Common Stock into a greater
number of shares, (iii) combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock, or (iv) issue any shares of its capital
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stock in a reclassification of the Common Stock, then the number of Underlying Securities
purchasable upon exercise of this Warrant immediately prior thereto shall be adjusted so that the
Holder shall be entitled to receive the kind and number of Underlying Securities or other
securities of the Company which it would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof Upon each such adjustment of the kind and number of
Underlying Securities or other securities of the Company which are purchasable hereunder, the
Holder shall thereafter be entitled to purchase the number of Underlying Securities or other
securities resulting from such adjustment at a Purchase Price per share or other security obtained
by multiplying the Purchase Price per share in effect immediately prior to such adjustment by the
number of Underlying Securities purchasable pursuant hereto immediately prior to such adjustment
and dividing by the number of Underlying Securities or other securities of the Company resulting
from such adjustment. An adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to the record date, if any, for such
event. The Company shall not declare or pay a dividend in cash or other assets prior to the
Expiration Date unless the aggregate amount of any such dividends is less than 50% of the Companys
net operating income for the previous fiscal year.
6.
Reorganization, Consolidation, Merger, etc.
In case the Company shall reorganize
its capital, reclassify its capital stock, consolidate or merge with or into another corporation
(where the Company is not the surviving corporation or where there is a change in or distribution
with respect to the Common Stock of the Company), or sell, transfer or otherwise dispose of its
property, assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of assets, shares of common
stock of the successor or acquiring corporation, or any cash, shares of stock or other securities
or property of any nature whatsoever (including warrants or other subscription or purchase rights)
in addition to or in lieu of common stock of the successor or acquiring corporation (
Other
Property
), are to be received by or distributed to the holders of Common Stock of the Company,
then the Holder shall have the right thereafter to receive, at the option of the Holder, (a) upon
exercise of this Warrant, the number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and Other Property receivable
upon or as a result of such reorganization, reclassification, merger, consolidation or disposition
of assets by a Holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event or (b) cash equal to the value of this Warrant as determined in
accordance with the Black Scholes option pricing formula. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor or acquiring
corporation (if other than the Company) shall expressly assume the due and punctual observance and
performance of each and every covenant and condition of this Warrant to be performed and observed
by the Company and all the obligations and liabilities hereunder, subject to such modifications as
may be deemed appropriate (as determined in good faith by resolution of the Board of Directors of
the Company) in order to provide for adjustments of Underlying Securities for which this Warrant is
exercisable which shall be as nearly equivalent as practicable to the adjustments provided for in
this Section 6. For purposes of this Section 6, common stock of the successor or acquiring
corporation shall include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which is not subject to
redemption and shall also include any evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the
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happening of a specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 6 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of assets.
7.
Further Assurances; Reports
. The Company shall take all such action as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and
non-assessable shares of Underlying Securities upon the exercise of all Warrants from time to time
outstanding. For so long as the Holder holds this Warrant, the Company shall deliver to the Holder
contemporaneously with delivery to the holders of Common Stock, a copy of each report of the
Company delivered to such holders.
8.
Certificate as to Adjustments
. In each case of any adjustment or readjustment in
the Underlying Securities, the Company shall, at its expense, promptly cause its Chief Financial
Officer to compute such adjustment or readjustment in accordance with the terms of this Warrant and
prepare a certificate setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based, and the number of shares of Common Stock or
Other Securities outstanding or deemed to be outstanding. The Company shall forthwith mail a copy
of each such certificate to the Holder.
9.
Notices of Record Date, etc.
In the event of
(a) any taking by the Company of a record of its stockholders for the purpose
of determining the stockholders thereof who are entitled to receive any dividend or
other distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of stock of any class or any other securities or property, or to receive any
other right, or for the purpose of determining stockholders who are entitled to vote
in connection with any proposed capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all the assets of the Company to or consolidation
or merger of the Company with or into any other Person, or
(b) any voluntary or involuntary dissolution, liquidation or winding-up of the
Company,
then and in each such event the Company shall mail or cause to be mailed to each Holder of a
Warrant a notice specifying (i) the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and stating the amount and character of such dividend,
distribution or right and (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if any, as of which the Holders of record of Underlying Securities shall
be entitled to exchange their shares of Underlying Securities for securities or other property
deliverable upon such reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up. Such notice shall be mailed at least 20 days prior
to the date therein specified.
10.
Reservation of Stock, etc., Issuable on Exercise of Warrants
. The Company shall
at all times on and after the filing of the Restated Certificate reserve and keep
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available, solely for issuance and delivery upon the exercise of the Warrants, all shares of
Common Stock (or Other Securities) from time to time issuable upon the exercise of the Warrants.
10.
Listing on Securities Exchanges; Registration; Issuance of Certain Securities
. In
furtherance and not in limitation of any other provision of this Warrant, if the Company at any
time shall list any Common Stock (or Other Securities) on any national securities exchange or
Nasdaq, the Company shall, at its expense, simultaneously list the Underlying Securities from time
to time issuable upon the exercise of the Warrants on such exchange or Nasdaq, upon official notice
of issuance.
11.
Exchange of Warrants
. Subject to the provisions of Section 2, upon surrender for
exchange of this Warrant, properly endorsed, to the Company, as soon as practicable (and in any
event within three Business Days) the Company at its own expense shall issue and deliver to or upon
the order of the Holder thereof a new Warrant or Warrants of like tenor, in the name of such Holder
or as such Holder (upon payment by such Holder of any applicable transfer taxes) may direct,
calling in the aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face of this Warrant so surrendered.
12.
Replacement of Warrants
. Upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of any such
loss, theft or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form
and amount to the Company or, in the case of any such mutilation, upon surrender and cancellation
of this Warrant, the Company at its expense shall execute and deliver, in lieu thereof, a new
Warrant of like tenor.
13.
Warrant Agent
. The Company may, by written notice to each Holder of a Warrant,
appoint an agent having an office in New York, New York, for the purpose of issuing Common Stock
(or Other Securities) upon the exercise of the Warrants pursuant to Section 3, exchanging Warrants
pursuant to Section 12, and replacing Warrants pursuant to Section 13, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be, shall be made at such
office by such agent.
14.
Remedies
. The Company stipulates that the remedies at law of the Holder of this
Warrant in the event of any default or threatened default by the Company in the performance of or
compliance with any of the terms of this Warrant may not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement contained herein or
by an injunction that may be sought against a violation of any of the terms hereof or otherwise.
15.
No Rights as Stockholder
. This Warrant does not entitle the Holder hereof to any
voting rights or other rights as a stockholder of the Company prior to the exercise hereof.
16.
Negotiability, etc.
Subject to Section 2, this Warrant is issued upon the
following terms, to all of which each Holder or owner hereof by the taking hereof consents and
agrees that:
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(a) subject to the provisions of this Warrant and the Unit Subscription
Agreement, title to this Warrant may be transferred by endorsement (by the Holder
hereof executing the form of assignment at the end hereof); and
(b) until this Warrant is transferred on the books of the Company, the Company
may treat the registered Holder hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
17.
Entire Agreement; Successors and Assigns
. This Warrant, the Unit Subscription
Agreement and the Investor Rights Agreement constitute the entire contract between the parties
relative to the subject matter hereof. This Warrant, the Unit Subscription Agreement and the
Investor Rights Agreement supersede any previous agreement among the parties with respect to the
subject matter hereof. The terms and conditions of this Warrant shall inure to the benefit of and
be binding upon the respective permitted executors, administrators, heirs, successors and assigns
of the parties. Nothing in this Warrant, expressed or implied, is intended to confer upon any
party, other than the Holder and the Company, any rights, remedies, obligations or liabilities
under or by reason of this Warrant.
18.
Governing Law; Jurisdiction
. This Warrant shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles of conflicts of law.
Each of the Holder and the Company hereby irrevocably consents and submits to the jurisdiction of
any New York State or United States Federal Court sitting in the State of New York, County of New
York, over any action or proceeding arising out of or relating to this Warrant and irrevocably
consents to the service of any and all process in any such action or proceeding in the manner for
the giving of notices at its address specified in
Section 21
. Each of the Holder and the
Company further waives any objection to venue in the State of New York, County of New York and any
objection to an action or proceeding in such state and county on the basis of
forum non conveniens
.
Each of the Holder and the Company also waives any right to trial by jury.
19.
Headings
. The headings of the sections of this Warrant are for convenience and
shall not by themselves determine the interpretation of this Warrant.
20.
Notices
. Any notice or other communication required or permitted to be given
hereunder (each a
Notice
) shall be given in writing and shall be made by personal
delivery or sent by courier or certified or registered first-class mail (postage pre-paid),
addressed to a party at its address shown below or at such other address as such party may
designate by three days advance Notice to the other party.
Any Notice to the Holder shall be sent to the address for such Holder set forth on books and
records of the Company.
Any Notice to the Company shall be sent to:
Novint Technologies, Inc.
4109 Bryan Avenue NW
Albuquerque, New Mexico 87114
Attention: CEO
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Each Notice shall be deemed given and effective upon receipt (or refusal of receipt).
21.
Severability
. Whenever possible, each provision of this Warrant shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Warrant shall be deemed prohibited or invalid under such applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision or any other
provision of this Warrant.
22.
Amendments and Waivers
. Any provision of this Warrant may be amended and the
observance of any provision of this Warrant may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and the Holders of a majority of the Warrants then outstanding. Any amendment or waiver effected
in accordance with this Section 23 shall be binding upon each Holder of a Warrant.
23.
Construction.
Words (including capitalized terms defined herein) in the singular
shall be held to include the plural and vice versa as the context requires. The words
herein
,
hereinafter
,
hereunder
and words of similar import used in
this Warrant shall, unless otherwise stated, refer to this Warrant as a whole and not to any
particular provision of this Warrant. All references to $ in this Warrant and the other
agreements contemplated hereby shall refer to United States dollars (unless otherwise specified
expressly). Any reference to any gender includes the other genders.
24.
Assignability
. Subject to Section 2, this Warrant is fully assignable at any
time.
Dated: March __, 2007
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NOVINT TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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Attest:
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FORM OF SUBSCRIPTION
(To be signed only upon exercise of Warrant)
To: NOVINT TECHNOLOGIES, INC.
The undersigned, the Holder of the within Warrant, hereby irrevocably elects to exercise the
purchase right represented by such Warrant for, and to purchase thereunder, * shares of
Common Stock of Novint Technologies, Inc., and herewith makes payment of $
or,
subject to satisfaction of the conditions set forth in Section 3.5 of the
Warrant, [by
initial here ___] Holder elects to exercise under the Net Issue Exercise provisions of Section
1.4 of the Warrant, and requests that the certificates for such shares be issued in the name of,
and delivered to,
, whose address is
.
The undersigned represents that the undersigned is acquiring such securities for its own
account for investment and not with a view to or for sale in connection with any distribution
thereof (except for any resale pursuant to, and in accordance with a valid registration statement
effective under the Securities Act of 1933).
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Dated:
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(Signature must conform in all respects to the name of
the Holder as specified on the face of the Warrant)
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(Address)
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Insert here the number of shares called for on the face of the Warrant (or, in the case of a
partial exercise, the portion thereof as to which the Warrant is being exercised).
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FORM OF ASSIGNMENT
(To be signed by the Holder only upon transfer of Warrant)
For value received, the undersigned hereby sells, assigns and transfers unto
the right represented by the within Warrant to purchase
shares
of Common Stock of Novint Technologies, Inc. to which the within Warrant relates, and hereby does
irrevocably constitute and appoint
Attorney to transfer such right on the
books of Novint Technologies, Inc. with full power of substitution in the premises. The Warrant
being transferred hereby is one of the Warrants issued by Novint Technologies, Inc. as of March ___,
2007 to purchase up to a maximum of 10,000,000 shares of Common Stock.
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Dated:
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(Signature must conform in all respects to name of Holder as specified on the face of
the Warrant)
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(Address)
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Signature guaranteed by a bank
or trust company having its
principal office in New York City
or by a Member Firm of the New
York Stock Exchange
or American Stock Exchange
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13
Exhibit 10.1
NOVINT TECHNOLOGIES, INC.
UNIT SUBSCRIPTION AGREEMENT
COMMON STOCK
AND WARRANTS
UNIT SUBSCRIPTION AGREEMENT dated as of February 23, 2007 (this
Agreement
), among Novint
Technologies, Inc., a Delaware corporation (the
Company
), and the persons who execute
this agreement as investors (each an
Investor
and collectively the
Investors
).
Background:
The Company desires to sell to the Investors, and the Investors desire to
purchase, up to a maximum of nine million (9,000,000) Units (as defined below) consisting of shares
of common stock, $.01 par value per share, of the Company (the
Shares
) and 5-year
warrants, in substantially the form attached hereto as
Exhibit 1
, exercisable to purchase
up to a maximum of 9,000,000 Shares at $1.50 per share (the
Warrants
). The Company may
also sell an additional one million (1,000,000) Units ( the
Additional Securities
) on the
same terms to a strategic investor by March 30, 2007. The proceeds of the sale of Units will be
used in the development and continuance of the business of the Company and each of its
Subsidiaries.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the parties agree as
follows:
Certain Definitions:
Action
has the meaning set forth in
Section 2.10
.
Additional Securities
has the meaning set forth in
Background
.
Affiliate
means, as to any Person, any other Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under common control with
such Person. As used in this definition,
control
(including, with its correlative
meanings,
controlled by
and
under common control with
) shall mean possession,
directly or indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership interests, by contract
or otherwise).
Anti-Dilution Period
means the period commencing on the Closing Date and ending 18
months after the initial Registration Statement (as defined in the Investor Rights Agreement) is
declared effective provided that the period shall be extended up to an additional six months to the
extent any and all Suspensions (as defined in the Investor Rights Agreement) exceed sixty (60) days
in the aggregate during such period.
Blue Sky Laws
has the meaning set forth in
Section 2.7(b)
.
Business Day
means any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required by law to remain closed.
Certificate of Incorporation
has the meaning set forth in
Section 2.2(a)
.
Closing Date
has the meaning set forth in
Section 1.2
.
Closing
has the meaning set forth in
Section 1.2
.
Common Stock
means the Companys Common Stock, $.01 par value per share, authorized
as of the date hereof, and any stock of any class or classes (however designated) hereafter
authorized upon reclassification thereof, which, if the Board of Directors declares a dividend or
distribution, has the right to participate in the distribution of earnings and assets of the
Company after the payment of dividends or other distributions on any shares of capital stock of the
Company entitled to a preference and in the voting for the election of directors of the Company.
Company
has the meaning set forth at the head of this Agreement and any corporation
or other entity which shall succeed to or assume, directly or indirectly, the obligations of the
Company hereunder. The term
corporation
shall include an association, joint stock
company, business trust, limited liability company or other similar organization.
Company Disclosure Letter
means the disclosure letter dated February 23, 2007
delivered to the Investors prior to the execution of this Agreement, which letter is incorporated
in this Agreement.
Company IP
has the meaning set forth in
Section 2.12(a)
.
Convertible Security
means any (i) option to purchase or right to subscribe for
Common Stock, (ii) security by its terms convertible into or exchangeable for Common Stock or (iii)
option to purchase or right to subscribe for such convertible or exchangeable securities.
Contemplated Transactions
has the meaning set forth in
Section 2.1(b)
.
Exchange Act
has the meaning set forth in
Section 2.7(b)
.
Exempt Issuance
means (i) all shares of Common Stock issued or issuable to
employees, directors or consultants pursuant to any equity compensation plan that is in effect on
the date of this Agreement, (ii) all shares of Common Stock issued or issuable to employees or
directors pursuant to any equity compensation plan approved by the stockholders of the Company
after the date of this Agreement, (iii) all shares of Common Stock issued or issuable to employees,
directors or consultants as bona fide compensation for business services rendered, not compensation
for fundraising activities, (iv) all shares of Common Stock issued or issuable to bona fide leasing
companies, strategic partners, or major lenders or other financing or credit transaction which is
not an equity capital raising event for the Company, (v) all shares of Common Stock issued or
issuable as the purchase price in a bona fide acquisition or merger (including reasonable fees paid
in connection therewith) or (vi) all Warrant Shares, Additional Shares and shares issued upon
conversion or exercise of other Convertible Securities outstanding on the date of the last Closing
hereunder.
Fair Value
has the meaning set forth in
Section 1.5
.
2
First Closing
has the meaning set forth in
Section 1.2
.
First Closing Date
has the meaning set forth in
Section 1.2
.
Form 10-KSB Financial Statements
has the meaning set forth in
Section
2.9(c)
.
Governmental Body
has the meaning set forth in
Section 2.7(b)
.
Indemnified Party
has the meaning set forth in
Section 5.2(b)
.
Indemnifying Party
has the meaning set forth in
Section 5.2(c)
.
Information Statement
has the meaning set forth in Section 2.2(b)(i).
Investor Rights Agreement
has the meaning set forth in Section 1.3(a).
Investor
shall mean each Investor who purchases Units hereunder, including without
limitation investors who purchase Units on the Second Closing Date.
Knowledge
shall mean, with respect to a particular fact or other matter, the
knowledge, after reasonable investigation, of the Chief Executive Officer or Chief Financial
Officer of the Company.
Legal Requirement
has the meaning set forth in
Section 2.8
.
Losses
has the meaning set forth in
Section 5.2(b)
.
Material Adverse Effect
has the meaning set forth in
Section 2.1(a)
.
Material Agreement
has the meaning set forth in
Section 2.7
.
Notice
has the meaning set forth in
Section 6.6
.
Other Securities
has the meaning set forth in the Warrants.
Person
means any individual, sole proprietorship, partnership, corporation, limited
liability company, business trust, unincorporated association, joint stock corporation, trust,
joint venture or other entity, any university or similar institution, or any government or any
agency or instrumentality or political subdivision thereof.
Purchased Shares
has the meaning set forth in
Section 1.1(a)
.
Purchased Warrants
has the meaning set forth in
Section 1.1(a)
.
Registration Waivers
shall mean the waivers of registration rights in substantially
the form attached hereto as Exhibit 5.
Restated Certificate
has the meaning set forth in Section 2.2(b)(i).
3
Rule 144
means Rule 144 promulgated under the Securities Act or any successor or
substitute rule, law or provision.
SEC
means the Securities and Exchange Commission.
SEC Documents
has the meaning set forth in
Section 2.9(a)
.
Second Closing
has the meaning set forth in
Section 1.2
.
Second Closing Date
has the meaning set forth in
Section 1.2
.
Securities
has the meaning set forth in
Section 1.1(a)
.
Securities Act
has the meaning set forth in
Section 2.5
.
Shares
has the meaning set forth in
Background
.
Subsidiary
means any significant subsidiary (as defined under Rule 1.02(w) of
Regulation S-X promulgated by the SEC) of the Company.
Transaction Documents
has the meaning set forth in
Section 1.3(a)
.
Underlying Securities
means the shares of Common Stock or Other Securities issued or
from time to time issuable upon exercise of the Warrants.
Unit means (i) one Share and (ii) one Warrant.
1.
Purchase and Sale of Units
.
1.1.
Sale and Issuance of Securities
.
(a) The Company shall sell to the Investors and the Investors shall purchase
from the Company, up to a maximum of 9,000,000 Units, at a price per Unit equal to
$1.00, for a purchase price aggregating up to a maximum of $9,000,000.00. In
addition, the Company may sell the Additional Securities to a strategic investor for
a purchase price aggregating up to $1,000,000.00 at a Second Closing. The Shares
sold as part of the Units are referred to as the
Purchased Shares
and the
Warrants sold as part of the Units are referred to as the
Purchased
Warrants
and collectively with the Purchased Shares, the
Securities
.
(b) The number of Purchased Shares and Purchased Warrants to be purchased by
each Investor from the Company is set forth on the signature page here, subject to
acceptance, in whole or in part, by the Company.
1.2.
Closings
. On and after February 16, 2007, the Company shall accept
subscriptions under this Agreement. The first closing (the
First Closing
) of the
purchase and sale of the Securities hereunder shall take place on March 2, 2007 or such
other date thereafter, but no later than March 30, 2007, as is agreed to by the Company
4
and Investors who subscribe for at least 2,500,000 Units (the
First Closing
Date
). A second closing (the
Second Closing
, and with the First Closing, the
Closings
) for the sale of the Additional Securities shall take place no later than
March 30, 2007 (the
Second Closing Date
, and with the First Closing Date, the
Closing Dates
). Each Closing shall take place at the offices of Hahn & Hessen
LLP, the Investors counsel, in New York, New York, or at such other location as is mutually
acceptable to the Investors and the Company, subject to fulfillment of the conditions to the
Closing set forth in the Agreement. At each Closing:
(a) each Investor purchasing Securities at the Closing shall deliver to the
Company or its designees by wire transfer or such other method of payment as the
Company shall approve, an amount equal to the purchase price of the Securities
purchased by such Investor hereunder, as set forth opposite such Investors name on
the signature pages hereof;
(b) the Company shall authorize its transfer agent to arrange delivery to each
Investor of one or more stock certificates registered in the name of the Investor,
or in such nominee name(s) as designated by the Investor in writing, representing
the number of Purchased Shares as set forth opposite such Investors name on the
signature page hereof; and
(c) the Company shall issue and deliver to each Investor purchasing Securities
at each Closing the Warrants, registered in the name of such Investor, pursuant to
which such Investor shall have the right to acquire the number of Underlying
Securities as set forth opposite such Investors name on the signature page hereof
on the terms set forth therein.
1.3.
Investors Conditions to Closing
. The obligation of the Investors to
complete the purchase of the Securities at the applicable Closing is subject to the Company
delivering Securities as set forth in Section 1.2 and to fulfillment of the following
conditions:
(a) the Company shall execute and deliver to the Investors an Investor Rights
Agreement, dated the First Closing Date, in the form attached as
Exhibit 2
with respect to the Purchased Shares and the Underlying Securities (the
Investor Rights Agreement
, and with the Registration Waivers, the
Agreement and the Warrants, the
Transaction Documents
);
(b) the Company shall deliver to the Investors an opinion of counsel, dated the
applicable Closing Date and reasonably satisfactory to counsel for the Investors,
with respect to the matters set forth on
Exhibit 3
;
(c) the representation and warranties of the Company set forth in this
Agreement shall be true and correct in all material respects as of the date of this
Agreement and as of the applicable Closing Date as though made on and as of the
applicable Closing Date (except to the extent such representations and warranties
speak as of an earlier date, in which case such representations and
5
warranties shall be true and correct in all material respects as of such
earlier date), and the Company shall have performed in all material respects all
covenants and other obligations required to be performed by it under this Agreement
at or prior to the applicable Closing Date, and the Investors shall have received a
certificate signed on behalf of the Company by an authorized officer of the Company
to such effect;
(d) the Company shall deliver to Investors a certified copy of its Certificate
of Incorporation and by-laws and a Certificate of Good Standing from the Secretary
of State of the State of Delaware;
(e) the Company shall pay the Investors expenses to the extent set forth in
Section 6.9 hereof;
(f) the Company shall have received Registration Waivers from each Person
(other than as disclosed on the Company Disclosure Letter) having any registration
or similar rights in respect of any Company securities; and
(g) the Company shall have executed and delivered all other documents
reasonably requested by counsel for the Investors.
1.4
Companys Conditions to Closing
.
(a) The obligation of the Company to complete the sale of the Securities at the First
Closing is subject to fulfillment of the following conditions:
(i) the Investors shall execute and deliver to the Company the Investor Rights
Agreement; and
(ii) the representation and warranties of such Investors set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of the
First Closing Date as though made on and as of the First Closing Date (except to the
extent such representations and warranties speak as of an earlier date), in which
case such representations and warranties shall be true and correct in all material
respects as of such earlier date), and such Investors shall have performed in all
material respects all covenants and other obligations required to be performed by
them under this Agreement, if any at or prior to the First Closing Date.
(b) The obligation of the Company to complete the sale of the Securities at the Second
Closing is subject to fulfillment of the following conditions:
(i) one or more Investors shall purchase at least 500,000 Units;
(ii) such Investors shall execute and deliver to the Company the Investor
Rights Agreement; and
6
(iii) the representation and warranties of such Investors set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of the
Second Closing Date as though made on and as of the First Closing Date (except to
the extent such representations and warranties speak as of an earlier date), in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date), and such Investors shall have performed
in all material respects all covenants and other obligations required to be
performed by them under this Agreement, if any at or prior to the Second Closing
Date.
1.5
Anti-Dilution
. In the event the Company shall complete an offering of
securities for cash other than an Exempt Issuance (an
Offering
) during the
Anti-Dilution Period at a price per Share (or equivalent convertible securities and in each
case taking into account the fair value (the
Fair Value
) of any other securities
or assets sold with the securities included in the Offering) of $1.00 per Share (or the
Adjusted Purchase Price Per Share then in effect, if less) or less (the
Subsequent
Price
), then, in such event, the purchase price of Purchased Shares issued hereunder
(deemed to be $1.00 per Purchased Share for purposes of this Section 1.5) shall be
automatically adjusted to equal the Subsequent Price (the
Adjusted Purchase Price Per
Share
), and an additional number of Shares shall be issued to each Investor as if the
purchase price per Share were such Adjusted Purchase Price Per Share; provided that warrants
included in an Offering of units having terms and coverage such that the Fair Value of such
Warrants is higher than the Warrants included in the Units (the
Similar Warrants
)
shall be deemed to have no value for purposes of this Section 1.5 only. Upon such event,
the Company shall, and without further action on the part of the each Investor, issue such
additional Shares to each Investor as shall result from the Adjusted Purchase Price Per
Share. Such additional Shares shall be issued and delivered to each Investor within fifteen
(15) days following the consummation of each Offering. For illustration purposes only, if
the Company completed an offering of units consisting of Shares and warrants (other than
Similar Warrants) at a price per unit of $.85, and the Fair Value of the warrants sold in
the unit with each Share is $.10, then the Adjusted Purchase Price per Share will be $.75
(that is, $.85 minus $.10), and each Investor will receive a number of additional Shares
equal to one-third of such Investors Purchased Shares; that is, an Investor who purchased
1,000,000 Units for $1,000,000 would receive additional Shares so that such Investor will
have received an aggregate of 1,333,333 Purchased Shares ($1,000,000/$.75) in respect of the
Investors $1,000,000 investment. For purposes of this Section 1.5, Fair Value shall mean
the fair value of the warrant or other security or asset as determined in good faith by the
Board of Directors of the Company in good faith in accordance with generally accepted
accounting principles.
2.
Representations and Warranties of the Company
. The Company hereby represents and
warrants to each of the Investors as follows:
2.1.
Corporate Organization; Authority; Due Authorization
.
(a) The Company (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
7
incorporation, (ii) has the corporate power and authority to own or lease its
properties as and in the places where its business is now conducted and to carry on
its business as now conducted, and (iii) is duly qualified as a foreign corporation
authorized to do business in every jurisdiction where the failure to so qualify,
individually or in the aggregate, would have a material adverse effect on the
operations, assets, liabilities, financial condition or business of the Company and
its Subsidiaries taken as a whole (a
Material Adverse Effect
). Set forth
in Section 2.1(a) of the Company Disclosure Letter is a complete and correct list of
all Subsidiaries. Each Subsidiary is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is qualified
to do business as a foreign corporation in each jurisdiction in which qualification
is required, except where failure to so qualify would not have, individually or in
the aggregate, a Material Adverse Effect.
(b) The Company (i) has the requisite corporate power and authority to execute,
deliver and perform this Agreement and the other Transaction Documents to which it
is a party and to incur the obligations herein and therein and (ii) has been
authorized by all necessary corporate action to execute, deliver and perform this
Agreement and the other Transaction Documents to which it is a party and to
consummate the transactions contemplated hereby and thereby (the
Contemplated
Transactions
). This Agreement is and each of the other Transaction Documents
will be on each Closing Date a valid and binding obligation of the Company
enforceable in accordance with its terms except as limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting the enforcement of
creditors rights and the availability of equitable remedies (regardless of whether
such enforceability is considered in a proceeding at law or equity).
2.2.
Capitalization; Authorization of Additional Shares of Common Stock
.
(a)
Current Capitalization
. The authorized capital stock of the
Company consisted of (i) 50,000,000 shares of Common Stock, $.01 par value, of which
21,149,299 shares of Common Stock are outstanding and (ii) 4,000 shares of Preferred
Stock, $.01 par value, of which no shares are outstanding. All outstanding shares
of capital stock of the Company were issued in compliance with all applicable
Federal and state securities laws, and the issuance of such shares was duly
authorized by all necessary corporate action on the part of the Company. Except as
contemplated by this Agreement or as set forth in Section 2.2(a) of the Company
Disclosure Letter, there are (A) no outstanding subscriptions, warrants, options,
conversion privileges or other rights or agreements obligating the Company to
purchase or otherwise acquire or issue any shares of capital stock of the Company
(or shares reserved for such purpose), (B) no preemptive rights contained in the
Companys Certificate of Incorporation, as amended (the
Certificate of
Incorporation
), the By-laws of the Company or contracts to which the Company is
a party or rights of first refusal with respect to the issuance of additional shares
of capital stock of the Company (other than as
8
set forth in the Investor Rights Agreement), including without limitation the
Securities and the Underlying Securities, and (C) no commitments or understandings
(oral or written) of the Company to issue any shares, warrants, options or other
rights to acquire any equity securities of the Company other than with respect to
existing antidilution rights of existing investors, the effect of which is
accurately set forth in the Company Disclosure Letter. To the Companys Knowledge,
except as set forth in Section 2.2(a) of the Company Disclosure Letter, none of the
shares of Common Stock are subject to any stockholders agreement, voting trust
agreement or similar arrangement or understanding. Except as set forth in Section
2.2(a) of the Company Disclosure Letter, the Company has no outstanding bonds,
debentures, notes or other obligations the holders of which have the right to vote
(or which are convertible into or exercisable for securities having the right to
vote) with the stockholders of the Company on any matter.
(b)
Amendment to Certificate of Incorporation; Information Statement;
Stockholders Meeting
.
(i) The Board of Directors of the Company and holders of a majority of the
outstanding Shares acting by written consent have approved a restatement and
amendment to the Certificate of Incorporation authorizing the issuance of additional
shares of Common Stock and deleting the Companys authorized preferred stock, which
would enable the Company to be in compliance with the covenant set forth in Section
5.1(b) below (the
Restated Certificate
). In furtherance thereof, as
promptly as possible, but in no event later than 15 business days following the date
of this Agreement. In connection therewith, the Company will promptly prepare and
file with the SEC a Schedule 14C Information Statement (as amended or supplemented,
the
Information Statement
), and, after receiving and promptly responding
to any comments of the SEC thereon, shall promptly mail the Information Statement to
the stockholders of the Company. The Company will comply with Section 14(a) of the
Exchange Act and the rules promulgated thereunder in relation to the Information
Statement and any other materials to be sent to the stockholders of the Company in
connection with the approval of the Restated Certificate, and the Information
Statement shall not, on the date the Information Statement (or any amendment thereof
or supplement thereto) is first mailed to stockholders, contain any statement that,
at the time and in the light of the circumstances under which it is made, is false
or misleading with respect to any material fact, or omit to state any material fact
necessary in order to make the statements therein not false or misleading or
necessary to correct any statement in any earlier communication with respect to the
matters disclosed therein. Promptly upon the expiration of the twenty day waiting
period required by the SEC, the Company shall file cause the Restated Certificate to
be duly filed in the State of Delaware.
(ii) Subject to its fiduciary obligations under applicable law (as determined
in good faith by the Companys Board of Directors, after having taken into account
the written advice of the Companys outside counsel), the
9
Companys Board of Directors shall take all commercially reasonable action to
enable filing and effectiveness of the Restated Certificate.
(iii) In the event that (x) the Company does not file the Information Statement
within 15 business days following the date of this Agreement, (y) the Company fails
to file the Restated Certificate and make it effective under Delaware law within 90
days following the date of this Agreement, or (z) the Companys Board of Directors
fails to act as required pursuant to the provisions of Section 2.2(b)(ii), the
Company shall pay to each Investor a cash penalty equal to 10% of the aggregate
amount invested by such Investor at the applicable Closing; provided, however, that,
with respect to clause (y) above, no such penalty shall apply in the event that a
delay beyond the 90
th
day arises out of review by the SEC as long as the
Company continues to use its best efforts to cause the Information Statement to be
approved by the SEC and mailed to stockholders. Any payments made pursuant to this
Section 2.2(b)(iii) shall not constitute the Investors exclusive remedy for such
events.
2.3.
Validity of Securities
. The issuance of the Securities has been duly
authorized by all necessary corporate action on the part of the Company and, when issued to,
delivered to, and paid for by the Investors in accordance with this Agreement, the Purchased
Shares will be validly issued, fully paid and non-assessable.
2.4.
Underlying Securities.
The issuance of the Underlying Securities upon
exercise of the Purchased Warrants has been duly authorized, and the Underlying Securities
and at all times subsequent to the amendment of Companys Certificate of Incorporation to
increase its authorized capital stock (the Capital Amendment) and prior to such exercise
will have been, duly reserved for issuance upon such exercise and, when so issued, will be
validly issued, fully paid and non-assessable.
2.5.
Private Offering
. Neither the Company nor anyone authorized to act on its
behalf has within the last 12 months issued, sold or offered any security of the Company
(including, without limitation, any Common Stock or warrants of similar tenor to the
Purchased Warrants) to any Person under circumstances that would cause the issuance and sale
of the Securities, as contemplated by this Agreement, to the Companys knowledge to be
subject to the registration requirements of Section 5 of the Securities Act of 1933, as
amended (the
Securities Act
). The Company agrees that neither the Company nor
anyone authorized to act on its behalf will offer the Securities or any part thereof or any
similar securities for issuance or sale to, or solicit any offer to acquire any of the same
from, anyone so as to make the issuance and sale of the Securities subject to the
registration requirements of Section 5 of the Securities Act.
2.6.
Brokers and Finders
. Except as set forth in Section 2.6 of the Company
Disclosure Letter, the Company has not retained any broker, investment banker or finder in
connection with the Contemplated Transactions. No broker, investment banker or finder will
receive a fee, commission or other compensation in respect of any purchase of Units by AIGH
Investment Partners, LLC, Globis Capital Partners, L.P., any
10
of their respective affiliates or any other Investors introduced to the Company by AIGH
Investment Partners, LLC or Globis Capital Partners, L.P.
2.7.
No Conflict; Required Filings and Consents
.
(a) The execution, delivery and performance of this Agreement and the other
Transaction Documents by the Company do not, and the consummation by the Company of
the Contemplated Transactions will not, (i) conflict with or violate the Certificate
of Incorporation or the By-laws of the Company or its Subsidiaries assuming the due
filing of the Capital Amendment, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Company or its Subsidiaries
or by which any property or asset of the Company or its Subsidiaries is bound or
affected, or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, result in
the loss of a material benefit under, or give to others any right of purchase or
sale, or any right of termination, amendment, acceleration, increased payments or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of the Company or of any of its Subsidiaries pursuant to, any
material note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or any of
its Subsidiaries is a party or by which the Company or of any of its Subsidiaries or
any property or asset of the Company or of any of its Subsidiaries is bound or
affected (the
Material Agreements
); except, in the case of clauses (ii)
and (iii) above, for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or delay consummation of any of the Contemplated
Transactions in any material respect or otherwise prevent the Company from
performing its obligations under this Agreement or any of the other Transaction
Documents in any material respect, and would not, individually or in the aggregate,
have a Material Adverse Effect.
(b) The execution and delivery of this Agreement and the other Transaction
Documents by the Company do not, and the performance of this Agreement and the other
Transaction Documents and the consummation by the Company of the Contemplated
Transactions will not, require, on the part or in respect of the Company, any
consent, approval, authorization or permit of, or filing with or notification to,
any Governmental Body (as hereinafter defined) except for the filing of a Form D
with the SEC and applicable requirements, if any, of the Securities Exchange Act of
1934, as amended (the
Exchange Act
) or any state securities or blue sky
laws (collectively,
Blue Sky Laws
), and any approval required by
applicable rules of the markets in which the Companys securities are traded. For
purposes of this Agreement,
Governmental Body
shall mean any: (i) nation,
state, commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature in the United States; (ii) federal, state, local,
municipal, foreign or other government; or (iii) governmental or quasi-governmental
authority of any nature (including any governmental
11
division, department, agency, commission, instrumentality, official,
organization, unit, body or entity and any court or other tribunal) in the United
States.
2.8.
Compliance
. Except as set forth in the SEC Documents or in Section 2.8 of
the Company Disclosure Letter, neither the Company nor any Subsidiary is in conflict with,
or in default or violation of (i) any law, rule, regulation, order, judgment or decree
applicable to the Company or such Subsidiary or by which any property or asset of the
Company or such Subsidiary is bound or affected (
Legal Requirement
), or (ii) any
Material Agreement, in each case except for any such conflicts, defaults or violations that
would not, individually or in the aggregate, have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any written notice or other communication from any
Governmental Body regarding any actual or possible violation of, or failure to comply with,
any Legal Requirement, except any such violations or failures that would not, individually
or in the aggregate, have a Material Adverse Effect.
2.9.
SEC Documents; Financial Statements
.
(a) The information contained in the following documents, did not, as of the
date of the applicable document, include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances in which they were made,
not misleading, as of their respective filing dates or, if amended, as so amended
(the following documents, collectively, the
SEC Documents
), provided that
the representation in this sentence shall not apply to any misstatement or omission
in any SEC Document filed prior to the date of this Agreement which was superseded
by a subsequent SEC Document filed prior to the date of this Agreement:
(i) the Companys Annual Report on Form 10-KSB for the year ended December 31,
2005;
(ii) the Companys Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 2006, June 30, 2006 and September 30, 2006; and
(iii) the Companys interim filings on Form 8-K or other appropriate forms
filed on any date after December 31, 2006 and on or before each Closing.
(b) In addition, as of the date of this Agreement, the Company Disclosure
Letter, when read together with the SEC Documents and the information,
qualifications and exceptions contained in this Agreement, does not include any
untrue statement of a material fact or omit to state a material fact in light of the
circumstances in which such written disclosures were made.
(c) The Company has filed all forms, reports and documents required to be filed
by it with the SEC for the 12 months preceding the date of this Agreement, including
without limitation the SEC Documents. As of their
12
respective dates, the SEC Documents filed prior to the date hereof complied as
to form in all material respects with the applicable requirements of the Securities
Act, the Exchange Act, and the rules and regulations thereunder.
(d) The Companys Annual Report on Form 10-KSB for the year ended December 31,
2005, includes consolidated balance sheets as of December 31, 2004 and 2005 and
consolidated statements of income for the one year periods then ended (collectively,
the
Form 10-KSB Financial Statements
).
(e) The Companys Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2006, includes consolidated balance sheets as of September 30, 2006
and consolidated statements of income for the quarters ended June 30, 2005 and 2006
(the
Form 10-QSB Financial Statements
and together with the Form 10-K
Financial Statements, the
Financial Statements
).
(f) The Financial Statements (including the related notes and schedules
thereto) fairly present in all material respects the consolidated financial
position, the results of operations, retained earnings or cash flows, as the case
may be, of the Company for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments that would not be
material in amount or effect), in each case in accordance with generally accepted
accounting principles consistently applied during the periods involved, except as
may be noted therein.
2.10.
Litigation
. Except as set forth in the SEC Documents or in Section 2.10
of the Company Disclosure Letter, there are no claims, actions, suits, investigations,
inquiries or proceedings (each, an
Action
) pending against the Company or any of
its Subsidiaries or, to the Knowledge of the Company, threatened against the Company or any
of its Subsidiaries, at law or in equity, or before or by any court, tribunal, arbitrator,
mediator or any federal or state commission, board, bureau, agency or instrumentality, that,
individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect. Except as set forth in the SEC Documents or in Section 2.10 of the Company
Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or subject
to the provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
2.11.
Absence of Certain Changes
. Except as specifically contemplated by this
Agreement or as set forth in Section 2.11 of the Company Disclosure Letter or in the SEC
Documents, since September 30, 2006, there has not been (a) any material adverse change in
the business, prospects or financial condition of the Company; (b) any dividends or other
distribution of assets to stockholders of the Company; (c) any acquisition (by merger,
consolidation, acquisition of stock and/or assets or otherwise) of any Person by the
Company; or (d) any transactions, other than in the ordinary course of business, consistent
in all material respects with past practices, with any of its officers, directors or
principal stockholders or any of their respective Affiliates.
13
2.12.
Intellectual Property
.
(a) To the knowledge of the Company it owns, or has the right to use, sell or
license all intellectual property reasonably required for the conduct of its
business as presently conducted (collectively, the
Company IP
) except for
any failure to own or have the right to use, sell or license the Company IP that
would not have a Material Adverse Effect.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a breach of
any instrument or agreement governing any Company IP, will not cause the forfeiture
or termination or give rise to a right of forfeiture or termination of any Company
IP or impair the right of Company and its Subsidiaries to use, sell or license any
Company IP, except for the occurrence of any such breach, forfeiture, termination or
impairment that would not, individually or in the aggregate, result in a Material
Adverse Effect.
(c) (i) None of the manufacture, marketing, license, sale and use of any
product currently licensed or sold by the Company or any of its Subsidiaries
violates any license or agreement between the Company or any of its Subsidiaries and
any third party or, to the Knowledge of the Company, infringes any intellectual
property right of any other party; and (ii) there is no pending or, to the Knowledge
of the Company, threatened claim or litigation contesting the validity, ownership or
right to use, sell, license or dispose of any Company IP; except, with respect to
clauses (i) and (ii), for any violations, infringements, claims or litigations that
would not, individually or in the aggregate, have a Material Adverse Effect.
2.13
No Adverse Actions
. Except as set forth in the SEC Documents or in
Section 2.13 of the Company Disclosure Letter, there is no existing, pending or, to the
Knowledge of the Company, threatened termination, cancellation, limitation, modification or
change in the business relationship of the Company or any of its Subsidiaries, with any
supplier, customer or other Person except such as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
2.14.
Registration Rights
. Except as set forth in the Investor Rights
Agreement or in Section 2.14 of the Company Disclosure Letter, the Company is not under any
obligation to register under the Securities Act any of its currently outstanding securities
or any securities issuable upon exercise or conversion of its currently outstanding
securities nor is the Company obligated to register or qualify any such securities under any
Blue Sky Laws.
2.15.
Corporate Documents
. The Companys Certificate of Incorporation and
By-laws, each as amended to date, which are certified as of each Closing Date are true,
correct and complete and contain all amendments thereto.
14
2.16.
Disclosure
. On or before 9:00 a.m., New York City Time, on the fourth
Business Day after each Closing, the Company shall file with the SEC a Current Report on
Form 8-K describing the material terms of the Contemplated Transactions, and attaching as
exhibits to such Form 8-K copies of this Agreement and the other Transaction Documents, as
required by the SEC. Except for information that may be provided to the Investors pursuant
to this Agreement, the Company shall not, and shall use commercially reasonable efforts to
cause each of its officers, directors, employees and agents not to, provide any Investor
with any material nonpublic information regarding the Company from and after the filing of
such Form 8-K without the express written consent of such Investor.
2.17.
Use of Proceeds
. The net proceeds received by the Company from the sale
of the Securities shall be used by the Company for working capital and general corporate
purposes, including without limitation to support the operations of each of the
Subsidiaries.
3.
Representations and Warranties of the Investors
. Each Investor represents and
warrants to the Company as follows:
3.1.
Authorization
. If an entity, such Investor (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, and
(ii) has the power and authority to own and hold the Units. Such Investor (i) has full
power and authority to execute, deliver and perform this Agreement and the other Transaction
Documents to which it is a party and to incur the obligations herein and therein and (ii) if
applicable has been authorized by all necessary corporate or equivalent action to execute,
deliver and perform this Agreement and the other Transaction Documents and to consummate the
Contemplated Transactions. This Agreement is and each of the other Transaction Documents
will be upon the execution and delivery by Investor, a valid and binding obligation of such
Investor enforceable in accordance with its terms, except as limited by applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the enforcement
of creditors rights and the availability of equitable remedies (regardless of whether such
enforceability is considered in a proceeding at law or equity).
3.2.
Brokers and Finders
. Investor has either not retained an investment
banker, broker or finder, or has provided the name and information concerning such entity to
the Company on or prior to the applicable Closing Date.
3.3
No Governmental Review
. Such Investor understands that no United States
Federal or state agency or any other Governmental Body has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the
investment in the Securities nor has any agency or other Governmental Body passed upon or
endorsed the merits of the offering of the Securities.
3.4.
No Conflict; Required Filings and
Consents
.
15
(a) The execution, delivery and performance of this Agreement and the other
Transaction Documents by each Investor do not, and the consummation by such Investor
of the Contemplated Transactions will not, (i) if such Investor is an entity,
conflict with or violate the Certificate of Incorporation or the By-laws (or
equivalent or comparable documents) of such Investor, (ii) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to such Investor or
by which any property or asset of such Investor is bound or affected, or (iii)
result in any breach of or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, result in the loss of a
material benefit under, or give to others any right of purchase or sale, or any
right of termination, amendment, acceleration, increased payments or cancellation
of, or result in the creation of a lien or other encumbrance on any property or
asset of such Investor pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation to
which such Investor is a party or by which such Investor or any property or asset of
such Investor is bound or affected; except, for any such conflicts, violations,
breaches, defaults or other occurrences that would not prevent or delay consummation
of any of the Contemplated Transactions in any material respect or otherwise prevent
such Investor from performing its obligations under this Agreement or any of the
other Transaction Documents in any material respect.
(b) The execution and delivery of this Agreement and the other Transaction
Documents by each Investor do not, and the performance of this Agreement and the
other Transaction Documents and the consummation by such Investor of the
Contemplated Transactions will not, require, on the part or in respect of such
Investor, any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Body.
4.
Securities Laws
.
4.1.
Securities Laws Representations and Covenants of Investors.
(a) Each Investor represents and warrants to the Company that: this Agreement
is made by the Company with such Investor in reliance upon such Investors
representation to the Company, which by such Investors execution of this Agreement
such Investor hereby confirms, that the Securities to be received by such Investor
will be acquired for investment for such Investors own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof such
that such Investors would constitute an underwriter under the Securities Act;
provided that this representation and warranty shall not limit (i) the Investors
right to sell the Underlying Securities pursuant to the Investor Rights Agreement or
in compliance with an exemption from registration under the Securities Act and in
compliance with all applicable Federal Securities laws and Blue Sky Laws or (ii) the
Investors right to indemnification under this Agreement, if any or the Investor
Rights Agreement, if any.
16
(b) Each Investor understands and acknowledges that (i) the offering of the
Securities pursuant to this Agreement will not be registered under the Securities
Act or qualified under any Blue Sky Laws on the grounds that the offering and sale
of the Securities are exempt from registration and qualification, respectively,
under the Securities Act and the Blue Sky Laws, (ii) nothing in this Agreement or
any of the other Transaction Documents or in any other materials presented by or on
behalf of the Company to such Investor in connection with the purchase of Securities
constitutes legal, tax or investment advice, (iii) such Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Securities, (iv) except
as provided in the Investor Rights Agreement, the Company has not undertaken to
register the Securities pursuant to the Securities Act and will have no obligation
to effect on behalf of any Investor any registration or qualification under the
Securities Act or under any Blue Sky Laws or to assist any Investor in complying
with any exemption from registration or qualification under the Securities Act or
under any Blue Sky Laws and (v) if the Securities have not been registered under the
Securities Act and Rule 144 is not applicable, any resale of the Securities under
circumstances in which the seller (or the Person through whom the sale is made) may
be deemed to be an underwriter (as that term is defined in the Securities Act) may
require compliance with some other exemption under the Securities Act or the rules
and regulations of the SEC thereunder.
(c) Each Investor covenants that, unless the Purchased Shares, the Purchased
Warrants, the Underlying Securities or any other shares of capital stock of the
Company received in respect of the foregoing have been registered pursuant to the
Investor Rights Agreement being entered into among the Company and the Investors,
such Investor will not dispose of such securities unless and until such Investor
shall have notified the Company of the proposed disposition and shall have furnished
the Company with an opinion of counsel reasonably satisfactory in form and substance
to the Company to the effect that (x) such disposition will not require registration
under the Securities Act and (y) appropriate action necessary for compliance with
the Securities Act, all applicable Blue Sky Laws and any other applicable state,
local or foreign law has been taken;
provided
,
however
, that an
Investor may dispose of such securities without providing the opinion referred to
above if the sale of the securities is made in reliance on, and in accordance with
the terms of Rule 144.
(d) Each Investor represents to the Company that: (i) such Investor is able to
fend for itself in the Contemplated Transactions; (ii) such Investor has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of such Investors prospective investment in the
Securities and has so evaluated the merits and risks of such investment; (iii) such
Investor has the ability to bear the economic risks of such Investors prospective
investment and can afford the complete loss of such investment; (iv) such Investor
has been furnished with and has reviewed the SEC Documents and the Company
Disclosure Letter; (v) such Investor has been
17
furnished with and has had access to such information as is in the SEC
Documents and in the Company Disclosure Letter, together with the opportunity to
obtain such additional information as it requested to verify the accuracy of the
information contained therein or otherwise supplied to such Investor so that such
Investor can make an informed investment decision with respect to an investment in
the Securities; (vi) such Investor has had access to officers of the Company and an
opportunity to ask questions of and receive answers from such officers and has had
all questions that have been asked by such Investor satisfactorily answered by the
Company; and (vii) such Investor is not subscribing to purchase the Securities as a
result of or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over television
or radio, or presented at any seminar or meeting, or any solicitation of a
subscription by a Person not previously known to such Investor in connection with
investments in securities generally.
(e) Each Investor represents to the Company that: (i) such Investor (A) was
qualified at the time such Investor was offered the securities, (B) qualifies on the
date hereof, and (C) will qualify on the applicable Closing Date, as an accredited
investor as such term is defined under Rule 501 promulgated under the Securities
Act. Any Investor that is a corporation, a partnership, a limited liability
company, a trust or other business entity further represents to the Company that it
has not been organized for the purpose of purchasing the Securities.
(f) By acceptance hereof, each Investor acknowledges that the Purchased Shares,
the Purchased Warrants, the Underlying Securities and any shares of capital stock of
the Company received in respect of the foregoing held by it may not be sold by such
Investor without registration under the Securities Act or an exemption therefrom,
and therefore such Investor may be required to hold such securities for an
indeterminate period.
(g) In connection with any transfer of Securities made by each Investor in
compliance with the provisions of this Agreement, such Investor will cause each
proposed transferee of such Securities to agree and take hold such Securities
subject to the provisions of this Agreement.
(h) The Investor will not, directly or indirectly, except (as to each of
clauses (i), (ii) and (iii) below) in compliance with (that is, only to the extent
required to comply with) the Securities Act and such other securities or Blue Sky
laws as may be applicable, (i) offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge of)
any of the Shares, (ii) engage in any short sale which results in a disposition of
any of the Shares by Investor, or (iii) hedge the economic risk of the Investors
investment in the Shares.
(i) The representations, warranties and covenants of each Investor in this
Agreement are made severally and not jointly.
18
4.2.
Legends
. All certificates for the Purchased Shares, Purchased Warrants
and the Underlying Securities, and each certificate representing any shares of capital stock
of the Company received in respect of the foregoing, whether by reason of a stock split or
share reclassification thereof, a stock dividend thereon or otherwise, and each certificate
for any such securities issued to subsequent transferees of any such certificate (unless
otherwise permitted herein) shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS
OR BLUE SKY LAWS.
5.
Additional Covenants of the Company
.
5.1.
Reports, Information, Securities
.
(a) The Company shall cooperate with each Investor in supplying such
information as may be reasonably requested by such Investor to complete and file any
information reporting forms presently or hereafter required by the SEC as a
condition to the availability of the safe harbor pursuant to Rule 144 for the sale
of any of the Purchased Shares, the Purchased Warrants, the Underlying Securities
and shares of capital stock of the Company received in respect of the foregoing.
(b) The Company shall (i) use its best efforts to complete the Information
Statement, to deliver the Information Statement to its stockholders and to file the
Restated Certificate in the State of Delaware, and (ii) thereafter keep reserved for
issuance a sufficient number of authorized but unissued shares of Common Stock (or
Other Securities into which the Purchased Warrants are then exercisable) so that the
Purchased Warrants may be converted or exercised to purchase Common Stock (or such
Other Securities) at any time.
5.2.
Expenses; Indemnification
.
(a) The Company agrees to pay on each Closing Date and save the Investors
harmless against liability for (i) the payment of any stamp or similar taxes
(including interest and penalties, if any) that may be determined to be payable in
respect of the execution and delivery of this Agreement, and the issue and sale of
any Securities and the Underlying Securities, (ii) the expense of
19
preparing and issuing the certificates for the Securities and the Underlying
Securities, and (iii) the cost of delivering the Securities and the Underlying
Securities of each Investor to such Investors address, insured in accordance with
customary practice. Each Investor shall be responsible for its out-of-pocket
expenses arising in connection with the Contemplated Transactions, except that the
Company shall pay fees and disbursements of counsel to the Investors as set forth in
Section 6.9.
(b) The Company hereby agrees and acknowledges that the Investors have been
induced to enter into this Agreement and to purchase the Securities hereunder, in
part, based upon the representations, warranties, agreements and covenants of the
Company contained herein. The Company hereby agrees to pay, indemnify and hold
harmless the Investors and any director, officer, partner, member, employee or other
affiliate of any Investor (each, an
Indemnified Party
) against all claims,
losses and damages resulting from any and all legal or administrative proceedings,
including without limitation, reasonable attorneys fees and expenses incurred in
connection therewith (but in no event for more than one law firm for all the
Investors)(collectively,
Losses
), resulting from a breach by the Company
of any representation or warranty of the Company contained herein or the failure of
the Company to perform any agreement or covenant made herein;
(c) As soon as reasonably practicable after receipt by any Indemnified Party
of notice of any Losses in respect of which the Company (the
Indemnifying
Party
) may be required to provide indemnification thereof under this Section
5.2, the Indemnified Party shall give written notice thereof to the Indemnifying
Party. The Indemnified Party may, at its option, claim indemnity under this Section
5.2 as soon as a claim has been threatened by a third party, regardless of whether
any actual Losses have been suffered, so long as counsel for such Indemnified Party
shall in good faith determine that such claim is not frivolous and that the
Indemnifying Party may be required to provide indemnification therefor as a result
thereof and shall give notice of such determination to the Indemnifying Party. The
Indemnified Party shall permit the Indemnifying Party at the Indemnifying Partys
option and expense, to assume the defense of any such claim by counsel mutually and
reasonably satisfactory to the Indemnifying Party and a majority in interest of the
Indemnified Parties and to settle or otherwise dispose of the same;
provided
,
however
, that each Indemnified Party may at all times
participate in such defense at such Indemnified Partys expense; and
provided
further
,
however
that the Indemnifying Party shall
not, in defense of any such claim, except with the prior written consent of the
Indemnified Party, consent to the entry of any judgment or settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff in
question to such Indemnified Party of a release of all liabilities in respect of
such claim. If the Indemnifying Party does not promptly assume the defense of such
claim or if any such counsel is unable to represent one or more of the Indemnified
Parties due to a conflict of interest, then an Indemnified Party may assume, to the
extent separable, the defense of such portion of the claim as to
20
which the conflict arose (and, if not separable, the entire claim) and be
entitled to indemnification and prompt reimbursement from the Indemnifying Party for
such Indemnified Partys reasonable costs and expenses incurred in connection
therewith, including without limitation, reasonable attorneys fees and expenses
(not to exceed the cost of more than one law firm for all Investors). Such fees and
expenses shall be reimbursed to the Indemnified Parties as soon as practicable after
submission of invoices to the Indemnifying Party.
6.
Miscellaneous
.
6.1.
Entire Agreement; Successors and Assigns
. This Agreement and the other
Transaction Documents constitute the entire contract between the parties relative to the
subject matter hereof and thereof, and no party shall be liable or bound to the other in any
manner by any warranties or representations (express or implied) or agreements or covenants
except as specifically set forth herein or therein. This Agreement and the other
Transaction Documents supersede any previous agreement among the parties with respect to the
subject matter hereof and thereof. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective executors, administrators, heirs,
successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is
intended to confer upon any party, other than the parties hereto, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
6.2.
Survival of Representations and Warranties
. Notwithstanding any right of
the Investors fully to investigate the affairs of the Company and notwithstanding any
knowledge of facts determined or determinable by any Investor pursuant to such right of
investigation, each Investor has the right to rely fully upon the representations,
warranties, covenants and agreements of the Company contained in this Agreement or in any
documents delivered pursuant to this Agreement. All such representations and warranties of
the Company contained in this Agreement shall survive the execution and delivery of this
Agreement and each Closing hereunder and shall continue in full force and effect until the
earlier of (a) the date that is one year after the last Closing and (b) the sale of all of
the Shares pursuant to Rule 144 under the Securities Act or an effective registration
statement under the Securities Act covering the Purchased Shares and Underlying Securities.
All representations and warranties of the Investors contained in this Agreement shall
survive the execution and delivery of this Agreement and the applicable Closing hereunder.
The covenants of the Investors (to the extent set forth in Section 4.1(c)) and the Company
set forth in this Agreement shall survive the applicable Closing.
6.3.
Governing Law; Jurisdiction
. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to principles
of conflicts of law. Each party hereby irrevocably consents and submits to the jurisdiction
of any New York State or United States Federal Court sitting in the State of New York,
County of New York, over any action or proceeding arising out of or relating to this
Agreement and irrevocably consents to the service of any and all process in any such action
or proceeding in the manner for the giving of Notices at its address specified
21
in
Section 6.6
. Each party further waives any objection to venue in the State
of New York, County of New York and any objection to an action or proceeding in such state
and county on the basis of
forum non conveniens
. Each party also waives any right to trial
by jury.
6.4.
Counterparts
. This Agreement may be executed (including by facsimile
transmission) with counterpart signature pages or 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.
6.5.
Headings
. The headings of the sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this Agreement.
6.6.
Notices
. Any notice or other communication required or permitted to be
given hereunder (each a
Notice
) shall be given in writing and shall be made by
personal delivery or sent by courier or certified or registered first-class mail (postage
prepaid), addressed to a party at its address shown below or at such other address as such
party may designate by three days advance Notice to the other parties.
Any Notice to any of the Investors shall be sent to the addresses for such Investor set
forth on the signature pages hereof, with a copy to:
Hahn & Hessen LLP
488 Madison Avenue
New York, New York 10022
Attention: James Kardon, Esq.
Any Notice to the Company shall be sent to:
Novint Technologies, Inc.
4109 Bryan Ave NW
Albuquerque, NM 87114
Attention: CEO
with a copy to:
Richardson & Patel LLP
10900 Wilshire Blvd., Suite 500
Los Angeles, CA. 90024
Fax: 310.208.1154
Attention: Nimish Patel, Esq.
Each Notice shall be deemed given and effective upon receipt (or refusal of receipt).
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6.7.
Rights of Transferees
. Any and all rights and obligations of each of the
Investors herein incident to the ownership of Securities or the Underlying Securities shall
pass successively to all subsequent transferees of such securities until extinguished
pursuant to the terms hereof; provided, however, that no Investor may transfer or assign its
rights under this Agreement (other than to an Affiliate) between the date of this Agreement
and the applicable Closing Date.
6.8.
Severability
. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable law, but if
any provision of this Agreement shall be deemed prohibited or invalid under such applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity,
and such prohibition or invalidity shall not invalidate the remainder of such provision or
any other provision of this Agreement.
6.9.
Fees and Expenses
(a) Subject to Section 6.9(c), irrespective of whether any Closing is effected, the
Company shall pay all costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement.
(b) Each Investor shall be responsible for all costs and expenses incurred by such
Investor in connection with the negotiation, execution, delivery and performance of this
Agreement, except that the Company shall pay at each Closing for the legal fees and expenses
of Hahn & Hessen LLP, as counsel to the Investors, not exceeding a cap of $50,000; provided
that the Company shall also be obliged to pay additional legal fees and expenses of Hahn &
Hessen LLP incurred after the last Closing relating to filing of the Restated Certificate or
the Companys performance under the Warrants up to an additional amount of $10,000.
(c) If any action at law or in equity is necessary to enforce or interpret any of the
terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys
fees, costs and necessary disbursements in addition to any other relief to which such party
may be entitled.
6.10.
Amendments and Waivers
. Unless a particular provision or section of this
Agreement requires otherwise explicitly in a particular instance, any provision of this
Agreement may be amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively),
only with the written consent of the Company and the holders of a majority of the Purchased
Shares (not including for this purpose any Purchased Shares which have been sold to the
public pursuant to a registration statement under the Securities Act or an exemption
therefrom). Any amendment or waiver effected in accordance with this Section 6.10 shall be
binding upon each Investor, each holder of any Securities at the time outstanding (including
without limitation securities into which any such Securities are convertible or
exercisable), each future holder thereof, and the Company.
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6.11.
Company Disclosure Letter.
Information disclosed in any section of the
Company Disclosure Letter shall be deemed to be disclosed with respect to the corresponding
numbered section of this Agreement, as well as to such other sections of this Agreement to
which such disclosure shall reasonably pertain to in light of the form and substance of the
disclosure made.
6.12.
Construction.
Words (including capitalized terms defined herein) in the
singular shall be held to include the plural and vice versa as the context requires. The
words herein, hereinafter, hereunder and words of similar import used in this
Agreement shall, unless otherwise stated, refer to this Agreement as a whole and not to any
particular provision of this Agreement. All references to $ in this Agreement and the
other agreements contemplated hereby shall refer to United States dollars (unless otherwise
specified expressly). Any reference to any gender includes the other genders.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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SIGNATURE PAGE
TO
NOVINT TECHNOLOGIES, INC.
UNIT SUBSCRIPTION AGREEMENT
Dated as of February 23, 2007
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.
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Amount of Subscription:
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Print Name
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Number of Units to be Purchased:
(including
the
same
number
of
Purchased
Shares
and
related
Purchased
Warrants)
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Signature of Investor
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Social Security Number
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Address and Fax Number
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E-mail Address
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State of Domicile:
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Accepted and Agreed to as of
the date first
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NOVINT TECHNOLOGIES, INC.
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By:
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Dated:
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SIGNATURE PAGE
TO
NOVINT TECHNOLOGIES, INC.
UNIT SUBSCRIPTION AGREEMENT
Dated as of February 23, 2007
IF the INTERESTS will be held as JOINT TENANTS, as TENANTS IN COMMON, or as COMMUNITY
PROPERTY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.
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Amount of Subscription:
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Print Name of Purchaser
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Number of Units to be Purchased:
(including the
same number of
Purchased Shares
and related Purchased
Warrants)
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Signature of a Purchaser
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Social Security Number
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Print Name of Spouse or Other Purchaser
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Signature of Spouse or Other Purchaser
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Fax Number
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State of Domicile:
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Accepted and Agreed as of the
date first
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NOVINT TECHNOLOGIES, INC.
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By:
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Dated:
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SIGNATURE PAGE
TO
NOVINT TECHNOLOGIES, INC.
UNIT SUBSCRIPTION AGREEMENT
Dated as of February 23, 2007
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY COMPANY, TRUST or OTHER
ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first above
written.
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Amount of Subscription
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Number of Units to be Purchased:
, including the same number of
Purchased Shares and related Purchased Warrants)
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Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust
or Other Entity
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By:
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(Authorized Signatory)
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Taxpayer Identification Number:
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Date and State of Incorporation or
Organization:
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Date on which Taxable Year Ends:
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Accepted and Agreed as of the date first
above written:
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NOVINT TECHNOLOGIES, INC.
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EXHIBITS TO THE UNIT SUBSCRIPTION AGREEMENT
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Exhibit 1:
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Form of Warrants
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Exhibit 2:
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Form of Investor Rights Agreement
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Exhibit 3:
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Form of Legal Opinion
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Exhibit 4:
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Form of Restated Certificate
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Exhibit 5:
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Form of Registration Waiver
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Exhibit 3
Form of Legal Opinion- General Counsel
The opinion will be subject to standard qualifications and exceptions, reasonably acceptable to
counsel for the Investors.
1. The Company is validly existing as a corporation and is in good standing under the law of
the State of Delaware.
2. The Company has the requisite corporate power and authority to execute and deliver the
Investment Documents to which it is a party and to (i) sell and issue the Securities under the
Agreement, (ii) issue the Underlying Securities upon the Restated Certificate being duly filed and
accepted in the State of Delaware and thereafter the exercise of the Warrants, and (iii) perform
its obligations under the Investment Documents.
3. The authorized capital stock of the Company consists of 50,000,000 shares of Common Stock
and 4,000 shares of Preferred Stock. Based upon (i) a Certificate of the Chief Executive Officer,
and (ii) in reliance upon the Dilution Agreements (which we assume have been duly executed and are
binding upon the signatory parties thereto), we believe that the Companys statements in the
Company Disclosure Letter concerning the effect of the application of anti-dilution provisions in
currently outstanding securities and agreements of the Company correctly reflects the application
of those provisions in light of the Dilution Agreements and giving effect to the Closing.
4. The execution, delivery and performance by the Company of the Investment Documents have
been duly authorized by all necessary corporate action on part of the Company. Each of the
Investment Documents to which the Company is a party has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
5. The execution and delivery by the Company of the Investment Documents, the performance by
the Company of its obligations under the Investment Documents, and the issuance of the Securities
do not violate any provision of the Certificate of Incorporation, Restated Certificate or By-laws
of the Company, or any provision of any Federal law applicable to the Company and to be customarily
applicable to transactions of the nature set forth in the Investment Documents.
6. The execution and delivery by the Company of the Investment Documents, the performance by
the Company of its obligations under the Investment Documents, and the issuance of the Securities
do not violate, or constitute a default under, any note, bond, mortgage, indenture, contract,
agreement, lease or other instrument filed as an exhibit to the Companys annual report on Form
10-KSB for the year ended December 31, 2005 to which the Company is bound or to which any of the
property or assets of the Company is subject (it being understood that no opinion is expressed with
respect to any financial covenant in any such note, bond,
mortgage, indenture, contract, agreement, lease or other instrument insofar as the covenant
requires a computation).
7. Other than as set forth in the Investment Documents and the Company Disclosure Letter, to
our knowledge, there are no preemptive rights, rights of first refusal or rights of first offer
with respect to the issuance of the Securities or the performance by the Company of its obligations
under the Investment Documents, and the Securities and Underlying Securities, when issued and paid
for, all in compliance with the provisions of the Investment Documents will be free of any liens
and encumbrances other than restrictions on transfer imposed by Federal or state securities laws
8. When issued and paid for and when certificates representing the Shares and the Warrants
have been issued to the Investors, all in compliance with the provisions of the Purchase Agreement,
the Shares and Warrants will be validly issued, fully paid and nonassessable;
provided
,
however
, that the Shares and Warrants may be subject to restrictions on transfer under
applicable state and federal securities laws. The Underlying Securities, when issued upon the due
exercise of the Warrants including the payment of consideration thereof, will be validly issued,
fully paid and nonassessable.
9. Based solely on a Certificate of the Chief Executive Officer of the Company as to factual
matters, the Company is not, and, immediately after giving effect to the sale of the Securities in
accordance with the Investment Documents and the application of the proceeds as described in
Section 2.17 of the Agreement, will not be, required to be registered as an investment company
within the meaning of the Investment Company Act of 1940, as amended.
10. Subject to the accuracy of the Investors representations and warranties in the Agreement,
and upon the filing of Form D in compliance with Regulation D under the Securities Act, the sale of
the Units in conformity with the terms of the Agreement constitutes a transaction exempt from the
registration requirements of Section 5 of the Securities Act.
11. Based solely upon our review of the resolutions of the Board of Directors of the Company
relating to the Investment Documents, the Common Stock issuable upon exercise of the Warrants has
been validly reserved for issuance assuming the filing and acceptance of the Restated Certificate
in the State of Delaware.
Exhibit 10.2
NOVINT TECHNOLOGIES, INC.
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT (this
Agreement
) is entered into as of March 5, 2007 by and among
Novint Technologies, Inc., a Delaware corporation (the
Company
) and the investors listed on
Exhibit A hereto (collectively the
Investors
).
WHEREAS, the Company desires to sell to the Investors, and the Investors desire to purchase,
up to a maximum of ten million (10,000,000) Units consisting of shares of Common Stock of the
Company (the
Shares
) and 5-year warrants (the
Warrants
), exercisable to purchase up to a
maximum of ten million (10,000,000) shares of Common Stock of the Company (the
Warrant Shares
),
upon the terms and conditions set forth in that certain Unit Subscription Agreement, dated as of
February 23, 2007, among the Company and the Investors (the
Unit Subscription Agreement
);
WHEREAS, the terms of the Unit Subscription Agreement provide that it shall be a condition
precedent to the closing of the transactions thereunder for the Company and the Investors to
execute and deliver this Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined are defined in the Unit
Subscription Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto hereby agree as follows:
1.
Definitions
. The following terms shall have the meanings provided below:
Additional Shares
shall mean any additional shares of Common Stock which may be issued or
become issuable from time to time upon a distribution with respect to, or in exchange for, or in
replacement of, Shares, a Warrant or Warrant Shares, as a result of anti-dilution provisions of a
Warrant or otherwise.
Additional Share Notice
shall have the meaning assigned thereto in Section 10 hereof.
Blue Sky
shall have the meaning assigned thereto in Section 4(c) hereof.
Board of Directors
shall mean the board of directors of the Company.
Convertible Securities
means (i) options to purchase or rights to subscribe for Common
Stock, (ii) securities by their terms convertible into or exchangeable for Common Stock or (iii)
options to purchase or rights to subscribe for such convertible or exchangeable securities.
C
orrespondence
shall have the meaning assigned thereto in Section 15(d) hereof.
Difference
shall have the meaning assigned thereto in Section 8(b) hereof.
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended, and all of the
rules and regulations promulgated thereunder.
Exempt Issuance
means (i) all shares of Common Stock issued or issuable to employees,
directors or consultants pursuant to any equity compensation plan that is in effect on the date of
this Agreement, (ii) all shares of Common Stock issued or issuable to employees or directors
pursuant to any equity compensation plan approved by the stockholders of the Company after the date
of this Agreement, (iii) all shares of Common Stock issued or issuable to employees, directors or
consultants as bona fide compensation for business services rendered, not compensation for
fundraising activities, (iv) all shares of Common Stock issued or issuable to bona fide leasing
companies, strategic partners, or major lenders or other financing or credit transaction which is
not an equity capital raising event for the Company, (v) all shares of Common Stock issued or
issuable as the purchase price in a bona fide acquisition or merger (including reasonable fees paid
in connection therewith) or (vi) all Warrant Shares, Additional Shares and shares issued upon
conversion or exercise of other Convertible Securities outstanding on the date hereof.
Holder
shall mean each Investor or any transferee of the Warrants or Registrable Shares that
were held by Investors.
Majority Holders
shall mean, at the relevant time of reference thereto, those Holders
holding more than fifty percent (50%) of the Registrable Shares Owned by all of the Holders.
Mandatory Registration
shall have the meaning assigned thereto in Section 7 hereof.
Mandatory Registration Effective Date
shall have the meaning assigned thereto in Section
3(a) hereof.
Mandatory Registration Termination Date
shall have the meaning assigned thereto in Section
3(c) hereof.
Mandatory Subsequent Registration Effective Date
shall have the meaning assigned thereto in
Section 3(e) hereof.
Mandatory Subsequent Registration Filing Date
shall have the meaning assigned thereto in
Section 3(e) hereof.
Other Securities
shall have the meaning assigned thereto in the Warrant.
Own
shall mean to own beneficially, as that term is defined in the rules and regulations of
the SEC.
Proportionate Percentage
shall have the meaning assigned thereto in Section 11 hereof.
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Purchase Notic
e shall have the meaning assigned thereto in Section 11 hereof.
Registrable Shares
shall mean the Shares, the Warrant Shares and any Additional Shares.
Registration Statement
shall have the meaning assigned thereto in Section 3(a) hereof.
Registration Waiver
shall have the meaning assigned thereto in the Unit Subscription
Agreement.
Rule 144
shall mean Rule 144 promulgated under the Securities Act and any successor or
substitute rule, law or provision.
SEC
shall mean the Securities and Exchange Commission.
Securities Act
shall mean the Securities Act of 1933, as amended, and all of the rules and
regulations promulgated thereunder.
Selling Expenses
shall mean all underwriting discounts, brokerage and selling commissions
applicable to the sale of Registrable Shares, including standard underwriters cutbacks.
Shares
shall have the meaning assigned thereto in the Preamble to this Agreement.
Subsequent Registration Statements
shall have the meaning assigned thereto in Section 3(e)
hereof.
Suspension
shall have the meaning assigned thereto in Section 10(b) hereof.
Underlying Securities
shall mean the Warrant Shares, Additional Shares or Other Securities
issued or issuable upon exercise of Warrants.
Unit Subscription Agreement
shall have the meaning assigned thereto in the Preamble to this
Agreement.
Warrants
shall have the meaning assigned thereto in the Preamble to this Agreement.
Warrant Shares
shall have the meaning assigned thereto in the Preamble to this Agreement.
2.
Effectiveness
. This Agreement shall become effective upon the Closing.
3.
Mandatory Registration
.
(a) No later than fifty five (55) days after the Closing, the Company will prepare and file
with the SEC a registration statement on Form SB-2 for the purpose of
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registering (such registration, the
Mandatory Registration
) under the Securities Act all of
the Registrable Shares for resale by, and for the account of, the Investors as selling stockholders
thereunder (the
Registration Statement
). The Registration Statement shall permit the Investors
to offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
any or all of the Registrable Shares. Such Registration Statement also shall cover, to the extent
allowable under the Securities Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Shares.
(b) The Company agrees to use its best efforts to cause the Registration Statement to become
effective within ninety (90) days after filing (the
Mandatory Registration Effective Date
).
(c) The Company shall be required to keep the Registration Statement (and any subsequent
Registration Statements), as amended, effective until such date that is the earlier of (i) two
years after the Closing, (ii) the date when all of the Registrable Shares registered thereunder
shall have been sold or (iii) such time as all the Registrable Shares held by the Investors can be
sold pursuant to Rule 144(k) and without compliance with the registration requirements of the
Securities Act (such date is referred to herein as the
Mandatory Registration Termination Date
).
Thereafter, the Company shall be entitled to withdraw the Registration Statement and the Investors
shall have no further right to offer or sell any of the Registrable Shares pursuant to the
Registration Statement (or any prospectus relating thereto).
(d) Absent the prior written consent of the Investors then holding a majority of the Shares,
the Company shall not for a period of two years from the Closing Date grant any registration rights
that are senior to the registration rights of the Investors under this Agreement. The Company
represents that no securityholders of the Company other than the Investors and other than as
disclosed in the Unit Subscription Agreement have the right to sell any Common Stock or other
securities of the Company pursuant to the Registration Statement other than rights waived pursuant
to the Registration Waivers.
(e) In the event the amount of Shares and Underlying Shares covered by such Registration
Statement is limited by the SEC, the Company: (i) shall register the maximum number of Registrable
Shares permitted by the SEC, without adding any other shares to the Registration Statement, and
(ii) shall file additional registration statements (the
Subsequent Registration Statements
)
covering the balance of the Registrable Shares as soon as practicable in light of SEC positions,
rules and regulations (each a
Mandatory Subsequent Registration Filing Date
). The Company shall
use its best efforts to cause any and all Subsequent Registration Statements to become effective
within seventy five (75) days after filing (each, a
Mandatory Subsequent Registration Effective
Date
)
4.
Obligations of the Company
. In connection with the Companys obligations under
Section 3 hereof to file the Registration Statement with the SEC and to use its reasonable efforts
to cause the Registration Statement to become effective as soon as set forth in Section 3, the
Company shall, as expeditiously as reasonably possible, subject to Section 10 hereof:
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(a) prepare and file with the SEC such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be necessary in order to keep the
Registration Statement effective until the Mandatory Registration Termination Date;
(b) furnish to the selling Holders such reasonable number of copies of the Registration
Statement and a final prospectus, in conformity with the requirements of the Securities Act, and
such other documents (including, without limitation, prospectus amendments and supplements as are
prepared by the Company in accordance with Section 4(a) above) as the selling Holders may
reasonably request, in order to facilitate the public or other disposition of such selling Holders
Registrable Shares;
(c) use reasonable efforts to register and qualify the Registrable Shares covered by the
Registration Statement under such other securities laws or blue sky (
Blue Sky
) laws of all states
requiring such securities or Blue Sky registration or qualification,
provided
that the
Company shall not be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states or jurisdictions;
and
(d) use reasonable efforts to cause all such Registrable Shares registered hereunder to be
listed on each securities exchange (including without limitation The Nasdaq SmallCap Market) on
which securities of the same class issued by the Company are then listed.
5.
Furnish Information
.
(a) It shall be a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement that the selling Holders shall furnish to the Company such information
regarding them and the securities held by them as the Company shall reasonably request and as shall
be required in order to effect any registration by the Company pursuant to this Agreement.
(b) The Registration Statement will provide for a plan of distribution with respect to the
Registrable Shares substantially as follows, provided such plan of distribution may be modified at
the request of the SEC: The Registrable Shares may be sold from time to time by the Holders, or by
pledgees, donees, transferees or other successors in interest. Such sales may be made on one or
more exchanges or in the over-the-counter market, or otherwise at prices and at terms then
prevailing or at prices related to the then-current market price, or in negotiated transactions.
The Registrable Shares may be sold by one or more of the following: (i) a block trade in which the
broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (ii) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant to the resale
registration statement; (iii) an exchange distribution in accordance with the rules of such
exchange; (iv) one or more underwritten offerings on a firm commitment or best efforts basis; (v)
ordinary brokerage transactions and transactions in which the broker solicits purchasers; and (vi)
transactions between sellers and purchasers without a broker/dealer. In addition, any securities
covered by the Registration Statement that qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to the Registration Statement. For so
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long as a Holder Owns any Registrable Shares, such Holder shall not maintain a Net Short
Position. For purposes of this Section, a
Net Short Position
by a person means a position
whereby such person has executed one or more sales of Common Stock that is marked as a short sale
and that is executed at a time when such Holder has no equivalent offsetting long position in the
Common Stock. For purposes of determining whether a Holder has an equivalent offsetting long
position in the Common Stock, all Common Stock that is Owned by such Holder shall be deemed to be
held long by such Holder. The Holders may also distribute the Registrable Shares and Warrants to
their partners, members, stockholders or shareholders to the extent such distributions are effected
in full compliance with applicable securities laws and provided that the distributing Holders and
the distributees provide the Company with such documents and other information as reasonably
requested by the Company. In effecting sales, brokers or dealers engaged by the selling Holders
may arrange for other brokers or dealers to participate. Brokers or dealers will receive
commissions or discounts from selling Holders in amounts to be negotiated immediately prior to the
sale.
6.
Expenses of Registration
. All expenses incurred in connection with the
registration of the Registrable Shares pursuant to this Agreement, including without limitation all
registration and qualification and filing fees, printing expenses, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one counsel, Hahn & Hessen
LLP as counsel for the selling Holders, shall be borne by the Company. The Company shall not be
responsible for the fees and disbursements of any additional counsel for any of the selling
Holders. All Selling Expenses shall be borne by the Holders of the Registrable Shares so registered
and sold, pro rata on the basis of the number of their Registrable Shares so registered and sold.
7.
Delay in Filing or Effectiveness of Registration Statement
.
(a) If (i) the initial Registration Statement is not filed by the Company with the SEC on or
prior to fifty five (55) days after the Closing (the
Mandatory Registration Date
), (ii) such
Registration Statement is not effective on the Mandatory Registration Effective Date, (iii) any
Subsequent Registration Statement is not filed by the Mandatory Subsequent Registration Filing
Date, or (iv) any Subsequent Registration Statement is not effective on the Mandatory Subsequent
Registration Effective Date (each such event a
Registration Failure
), then for each day (w)
following the Mandatory Registration Date, (x) following each Mandatory Subsequent Registration
Filing Date, (y) following the Mandatory Registration Effective Date, or (z) following each
Mandatory Subsequent Registration Effective Date, until but excluding the date the Registration
Statement or Subsequent Registration Statement is filed or becomes effective, as applicable, the
Company shall, for each such day, pay the Holder with respect to any such failure, as liquidated
damages and not as a penalty, an amount equal to 0.0333% of the sum of (i) the purchase amount paid
by such Holder (or if such Holder was not an Investor, by the Investor from which the Holder
directly or indirectly acquired the Registrable Shares) for its Registrable Shares pursuant to the
Unit Subscription Agreement (the
Subscription Payment
) and (ii) amount paid for Underlying
Securities held by such Holder (the
Warrant Payment
); and for any such day, such payment shall be
made no later than the first business day of the calendar month next succeeding the month in which
such day occurs;
provided however,
that liquidated damages arising from a Registration
Failure shall accrue or be payable by the
6
Company only to the extent of the number of Registrable Shares affected by such Registration
Failure.
(b) If the Holder shall be prohibited from selling Shares under the Registration Statement as
a result of a Suspension of more than thirty (30) days or Suspensions on more than two (2)
occasions of not more than thirty (30) days each in any 12-month period, then for each day on which
a Suspension is in effect that exceeds the maximum allowed period for a Suspension or Suspensions,
but not including any day on which a Suspension is lifted, the Company shall pay the Holders, as
liquidated damages and not as a penalty, an amount equal to 0.0333% of the purchase price paid by
such Holder (or if such Holder was not an Investor, by the Investor from which the Holder directly
or indirectly acquired the Registrable Shares) for its Registrable Shares pursuant to the Unit
Subscription Agreement for each such day, and such payment shall be made no later than the first
business day of the calendar month next succeeding the month in which such day occurs. For
purposes of this Section 7, a Suspension shall be deemed lifted on the date that notice that the
Suspension has been lifted is delivered to the Holder pursuant to Section 10(b) of this Agreement.
(c) Notwithstanding the foregoing provisions, in no event shall the Company be obligated to
pay such liquidated damages to more than one Holder in respect of the same Registrable Shares for
the same period of time. Any payments made pursuant to this Section 7 shall not constitute the
Holders exclusive remedy for such events.
(d) Payments under this Section 7 shall be made to the Holder in cash, provided that the
Company shall have the option, in its sole discretion, to pay the liquidated damages amounts
accruing after the first three months (in each instance in which liquidated damages may occur) with
additional Shares, with the price of each such additional Share to be deemed equal to the average
closing price per share of the Companys Common Stock as quoted on the OTCBB for each such 30
business day period, or portion thereof. In no event shall payment pursuant to this Section exceed
20% in the aggregate of (i) the Subscription Payment and (ii) the Warrant Payment. These payments
will be prorated on a daily basis during the 30-business day period and will be paid to each Holder
within ten business days following the end of each 30-business day period as to which payment is
due hereunder provided that the respective Holder delivered to the Company at least two business
days prior thereto information with respect to the number of Shares, Warrants and Underlying
Securities not previously sold by such Holder (together with reasonable supporting documentation).
The Holders may make a claim for additional damages as a remedy for the Companys failure to comply
with the timelines set forth in this Section, but acknowledgement of such right in this Agreement
shall not constitute an admission by the Company that any such damages exist or may exist. Nothing
contained in the preceding sentence shall be read to limit the ability of the Holders to seek
specific performance of this Agreement.
8.
Indemnification
.
(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling
Holder (including the partners or officers, directors and stockholders of such Holder), and each
person, if any, who controls such selling Holder within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which
7
they may become subject under the Securities Act, the Exchange Act, and other federal or state
securities laws, or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) (i) arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, in any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to the Registration Statement or
any such preliminary prospectus or final prospectus, (ii) arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading or (iii) arise out of any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any other federal or
state securities law or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any other federal or state securities law; and will reimburse such selling Holder, or such
officer, director or controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the indemnity agreement contained in this Section 8(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent shall not be
unreasonably withheld or delayed), nor shall the Company be liable in any such case for any such
loss, damage, liability or action, to the extent that it arises out of or is based upon an untrue
statement or alleged untrue statement or omission made in connection with the Registration
Statement, any preliminary prospectus or final prospectus relating thereto or any amendments or
supplements to the Registration Statement or any such preliminary prospectus or final prospectus,
in reliance upon and in conformity with written information furnished expressly for use in
connection with the Registration Statement or any such preliminary prospectus or final prospectus
by the selling Holders, any broker/dealer acting on their behalf or controlling person with respect
to them.
(b) To the extent permitted by law, each selling Holder will severally and not jointly
indemnify and hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, each person, if any, who controls the Company within the meaning
of the Securities Act, or any selling Holders, and all other selling Holders against any losses,
claims, damages or liabilities to which the Company or any such director, officer, controlling
person or such other selling Holder may become subject to, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereto) arise out of
or are based upon any untrue or alleged untrue statement of any material fact contained in the
Registration Statement or any preliminary prospectus or final prospectus, relating thereto or in
any amendments or supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent and only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement, in
any preliminary prospectus or final prospectus relating thereto or in any amendments or supplements
to the Registration Statement or any such preliminary prospectus or final prospectus, in reliance
upon and in conformity with written information furnished by the selling Holder expressly for use
in connection with the Registration Statement, or any preliminary prospectus or final prospectus;
and such selling Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, or other selling Holder in connection
with investigating or defending any
8
such loss, claim, damage, liability or action;
provided
,
however
, that the
liability of each selling Holder hereunder (when aggregated with amounts contributed, if any,
pursuant to Section 8(d)) shall be limited to the difference (the
Difference
) between (a) the
amount received by such Holder from the sale of the Registrable Shares pursuant to the Registration
Statement and (b) the amount paid by such Holder to the Company for such Registrable Shares
pursuant to the Unit Subscription Agreement; and
provided
,
further
, that the
indemnity agreement contained in this Section 8(b) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected without the
consent of those selling Holder(s) against which the request for indemnity is being made (which
consent shall not be unreasonably withheld or delayed).
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof and the indemnifying party shall have the right to participate in and,
to the extent the indemnifying party desires, jointly with any other indemnifying party similarly
noticed, to assume at its expense the defense thereof with counsel mutually satisfactory to the
indemnifying parties with the consent of the indemnified party, which consent will not be
unreasonably withheld, conditioned or delayed. In the event that the indemnifying party assumes
any such defense, the indemnified party may participate in such defense with its own counsel and at
its own expense,
provided
,
however
, that the counsel for the indemnifying party
shall act as lead counsel in all matters pertaining to such defense or settlement of such claim and
the indemnifying party shall only pay for such indemnified partys reasonable legal fees and
expenses for the period prior to the date of its participation in such defense, and
provided
further
,
however
, that the indemnified party (together with all
indemnified parties which may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the reasonable fees and expenses of such separate counsel to
be paid by the indemnifying party, if the representation of the indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to actual or potential differing
interests between the indemnified party and any other party represented by such counsel in such
proceeding. Notwithstanding the foregoing, the indemnifying party shall not be obligated to pay
the fees of more than one separate counsel. The failure to notify an indemnifying party of the
commencement of any such action will not relieve such indemnifying party of any liability to the
indemnified party under this Section 8 (except to the extent that such failure materially and
adversely affects the indemnifying partys ability to defend such action), nor shall the omission
so to notify an indemnifying party relieve such indemnifying party of any liability which it may
have to any indemnified party otherwise other than under this Section 8. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release from all liability in respect to such claim or
litigation and otherwise in form and substance reasonably satisfactory to the indemnified party.
(d) If the indemnification provided in this Section 8 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim,
damage or expense referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable
9
by such indemnified party as a result of such loss, liability, claim, damage or expense in
such proportion as is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the statements or omissions
that shall have resulted in such loss, liability, claim, damage or expense, as well as any other
relevant equitable considerations; provided that in no event shall any contribution by an Holder
under this Section 8(d), when aggregated with amounts paid, if any, pursuant to Section 8(b),
exceed the Difference. The relative fault of the indemnifying party and of the indemnified party
shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties relative intent,
knowledge, access to information, and opportunity to correct or prevent such statement or omission.
(e) The obligations of the Company and Holders under this Section 8 shall survive the
completion of any offering of Registrable Shares in a Registration Statement under Section 3 and
otherwise.
9.
Reports Under the Exchange Act
. With a view to making available to the Holders the
benefits of Rule 144 and any other rule or regulation of the SEC that may at any time permit the
Holders to sell the Registrable Shares to the public without registration, the Company agrees to
use reasonable efforts: (a) to make and keep public information available, as those terms are
understood and defined in Rule 144, (b) to file with the SEC in a timely manner all reports and
other documents required to be filed by an issuer of securities registered under the Securities Act
or the Exchange Act and (c) undertake any additional actions reasonably necessary to maintain the
effectiveness of the Registration Statement or the use of Rule 144.
10.
Selling Procedures
. Any sale of Registrable Shares pursuant to a registration
statement filed in accordance with Section 3 hereof shall be subject to the following conditions
and procedures:
(a)
Updating the Prospectus
.
(i) If the Company informs the selling Holder that any registration statement or final
prospectus covering Registrable Shares then on file with the SEC is not current or otherwise does
not comply with the Securities Act, the Company shall use its commercially reasonable efforts to
provide to the selling Holder a current prospectus that complies with the Securities Act as soon as
practicable, but in no event later than five (5) business days after delivery of such notice.
(ii) If the Company requires more than five (5) business days to update the prospectus under
Section 10(a)(i) above, the Company shall have the right to delay the preparation of a current
prospectus that complies with the Securities Act without explanation to such Holder, subject to the
limitations set forth in Section 10(b) below, for a total of not more than two periods of thirty
(30) days each during any twelve-month period.
(b)
General
. Notwithstanding the foregoing, upon receipt of any notice from the
Company of (i) any request by the SEC or any other federal or state governmental authority during
the period of effectiveness of the Registration Statement for amendments or supplements
10
to the Registration Statement or related prospectus or for additional information relating to
the Registration Statement, (ii) the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption from qualification of
any of the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (iv) the happening of any event which makes any statement made in the
registration statement covering Registrable Shares or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any material respect or
which requires the making of any changes in the registration statement or prospectus so that, in
the case of the registration statement, it will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the prospectus, it will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading or
(v) that, in the judgment of the Board of Directors, it is advisable to suspend use of the
prospectus for a discrete period of time due to pending corporate developments, public filings with
the SEC or that there exists material nonpublic information about the Company that the Board of
Directors, acting in good faith, determines not to disclose in a registration statement, then the
Company may suspend use of the prospectus (each a
Suspension
), in which case the Company shall
promptly so notify each Holder and each Holder shall not dispose of Registrable Shares covered by
the registration statement or prospectus until copies of a supplemented or amended prospectus are
distributed to the Holders or until the Holders are advised in writing by the Company that the use
of the applicable prospectus may be resumed;
provided
,
however
, that,
notwithstanding the foregoing, the Company may suspend use of the prospectus pursuant to Sections
10(a)(ii), 10(b)(iv) and 10(b)(v), and an Holder may be prohibited from selling or otherwise
disposing of the Registrable Shares covered by the registration statement or prospectus, for
no
more
than two periods of thirty (30) days during any such twelve-month period. The Company
shall use its best efforts to ensure the use of the prospectus may be resumed as soon as
practicable. The Company shall use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the securities for sale in any
jurisdiction, at the earliest practicable moment. The Company shall, upon the occurrence of any
event contemplated by clause (iv), prepare a supplement or post-effective amendment to the
registration statement or a supplement to the related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Shares being sold thereunder, such prospectus will not contain an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading.
11.
Preemptive Rights
. In the event that at any time after the date hereof until the
date that is two (2) years after the Closing Date, the Company proposes to issue additional shares
of Common Stock or Convertible Securities, other than an Exempt Issuance, pursuant to a private
offering for a cash investment not registered with the SEC, the Company shall send a notice (an
Additional Share Notice
) to the Holder setting forth the terms of such proposed issuance. The
Holder shall be entitled to purchase a number of shares of Common Stock or
11
Convertible Securities, equal to its pro rata portion of 39% of the total number of shares of
Common Stock or Convertible Securities proposed to be issued in the offering (the
Preemptive
Amount
), where such pro rata amount shall be determined based upon such Holders pro rata portion
of the total number of Units sold under the Subscription Agreement. By way of example only, if the
Holder purchased or acquired one half of the total Units sold under the Subscription Agreement,
such Holder would be entitled to purchase one half of the Preemptive Amount. In addition, such
Preemptive Amount is determined based on the sale of 10,000,000 Units, and in the event less than
such number of Units is sold under the Subscription Agreement the Preemptive Amount shall be
reduced proportionately. Such participation by Holder in the offering shall be made on the same
terms set forth in the Additional Share Notice by (a) notice to the Company (the
Purchase Notice
)
within 10 days of the date of the Additional Share Notice and (b) payment of the price for such
shares of Common Stock or Convertible Securities, by wire transfer of immediately available funds
or such other method of payment as the Company may approve, within 10 days after delivery to the
Company of the Purchase Notice.
12.
Issuance of Certain Securities
. Until all Registrable Shares have been resold
publicly pursuant to a registration statement or under Rule 144, without the prior written consent
of Holders owning a majority of the Shares, during the three year period following the Closing
Date, the Company shall not issue for cash (a) any Convertible Securities or similar securities
that contain a provision that provides for any change or determination of the applicable conversion
price, conversion rate, or exercise price (or a similar provision which might have a similar
effect) based on any determination of the market price or other value of the Companys securities
or any other market based or contingent standard, such as so-called toxic or death spiral
convertible securities; provided, however, that this prohibition shall not include Convertible
Securities or similar securities the conversion or exercise price or conversion rate of which is
(i) fixed on the date of issuance, (ii) subject to adjustment as a result of or in connection with
a bona fide business combination or similar transaction or (iii) subject to adjustment based upon
the issuance by the Company of additional securities, including without limitation, standard
anti-dilution adjustment provisions which are not based on calculations of market price or other
variable valuations; and provided, further, that in no event shall this provision be deemed to
prohibit the transactions contemplated in the Unit Subscription Agreement, or (b) any preferred
stock, debt instruments or similar securities or investment instruments provided for (i)
preferences or other payments substantially in excess of the original investment by purchasers
thereof or (ii) dividends, interest or similar payments other than dividends, interest or similar
payments computed on an annual basis and not in excess, directly or indirectly, of the lesser of a
rate equal to (A) twice the interest rate on 10 year US Treasury Notes and (B) 20%.
13.
Assignment
. This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and assigns. In addition, and
whether or not any express assignment shall have been made, the provisions of this Agreement which
are for the benefit of the Holders shall also be for the benefit of and enforceable by any
subsequent holder of any Registrable Shares who has executed a copy of this Agreement or otherwise
indicated its agreement to be bound hereby. Without limitation on the Holders rights to transfer
Registrable Shares, the Company acknowledges that any Holder may, at any time, transfer any of the
Registrable Shares which it may own, beneficially or of record, to (a) its affiliates or (b) its
partner(s), investor(s), security holder(s) or beneficial holder(s) pursuant to its organization
documents or other agreements, and that, upon the consummation of
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any such transfer, the provisions of this Agreement shall be binding upon and inure to the
benefit of each transferee of such Registrable Shares.
14.
Entire Agreement
. This Agreement (including the exhibits hereto), the Unit
Subscription Agreement and the Warrants constitute and contain the entire agreement and
understanding of the parties with respect to the subject matter hereof, and such agreements also
supersede any and all prior negotiations, correspondence, agreements or understandings with respect
to the subject matter hereof.
15.
Miscellaneous
.
(a)
Amendments
. This Agreement may not be amended, modified or terminated, and no
rights or provisions may be waived, except with the written consent of the Majority Holders and the
Company.
(b)
Governing Law
. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York. Each party hereby irrevocably consents and
submits to the jurisdiction of any New York State or United States Federal Court sitting in the
State of New York, County of New York, over any action or proceeding arising out of or relating to
this Agreement and irrevocably consents to the service of any and all process in any such action or
proceeding by registered mail addressed to such party at its address specified herein (or as
otherwise noticed to the other party). Each party further waives any objection to venue in New
York and any objection to an action or proceeding in such state and county on the basis of
forum
non conveniens
. Each party also waives any right to trial by jury.
(c)
Successors and Assigns
. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal representatives, successors or
assigns. This Agreement shall also be binding upon and inure to the benefit of any transferee of
any of the Registrable Shares. Notwithstanding anything in this Agreement to the contrary, if at
any time any Holder shall cease to own any Registrable Shares, all of such Holders rights under
this Agreement shall immediately terminate.
(d)
Notices
.
(i) Any notices, reports or other correspondence (hereinafter collectively referred to as
correspondence) required or permitted to be given hereunder shall be given in writing and shall
be deemed effectively given upon (a) personal delivery, (b) delivery by fax (with answer back
confirmed), or (c) two business days after mailing by recognized overnight courier (such as Federal
Express), addressed to a party at its address or sent to the fax number provided below or at such
other address or fax number as such party may designate by three days advance notice to the other
party.
(ii) All correspondence to the Company shall be addressed as follows:
13
Novint Technologies, Inc.
4109 Bryan Avenue NW
Albuquerque, New Mexico 87114
Attention: Tom Anderson, CEO
Fax Number: 866-298-4420
with
a copy to:
Richardson
& Patel LLP
10900 Wilshire Blvd., Suite 500
Los Angeles, CA. 90024
Fax: 310-208-1154
Attention: Nimish Patel, Esq.
(iii) All correspondence to any Holder shall be sent to the most recent address furnished by
the Holder to the Company.
(iv) Any Holder may change the address to which correspondence to it is to be addressed by
notification as provided for herein.
(e)
Injunctive Relief
. The parties acknowledge and agree that in the event of any
breach of this Agreement, remedies at law may be inadequate, and each of the parties hereto shall
be entitled to seek specific performance of the obligations of the other parties hereto and such
appropriate injunctive relief as may be granted by a court of competent jurisdiction.
(f)
Attorneys Fees
. If any action at law or in equity is necessary to enforce or
interpret any of the terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees, costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
(g)
Severability
. If any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable under applicable law, such provision shall be replaced with a
provision that accomplishes, to the extent possible, the original business purpose of such
provision in a valid and enforceable manner, and the balance of the Agreement shall be interpreted
as if such provision were so modified and shall be enforceable in accordance with its terms.
(h)
Aggregation of Shares
. Registrable Shares held or acquired by affiliated entities
or persons shall be aggregated for the purpose of determining the availability of any rights under
this Agreement.
(i)
Counterparts
. This Agreement may be executed in a number of counterparts, any of
which together shall for all purposes constitute one Agreement, binding on all the parties hereto
notwithstanding that all such parties have not signed the same counterpart.
14
SIGNATURE PAGE TO NOVINT TECHNOLOGIES, INC.
INVESTOR RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Investor Rights Agreement as of the
date and year first above written.
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NOVINT TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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INVESTORS:
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(Individuals)
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Name:
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(Entities)
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Entity Name:
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By:
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Name:
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Title:
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Exhibit A
SCHEDULE OF INVESTORS