UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 29,
2014
KANDI TECHNOLOGIES GROUP, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
001-33997 |
90-0363723 |
(State of Incorporation) |
(Commission File Number) |
(IRS Employer Identification)
|
Jinhua City Industrial Zone
Jinhua, Zhejiang
Province
Peoples Republic of China
Post Code 321016
(Address of
principal executive offices)
(86-579) 8223-9700
Registrants telephone number, including
area code
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a -12)
[ ] Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d -2(b))
[ ] Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e -4(c))
Item 1.01 Entry into a Material Definitive Agreement
On August 29, 2014, Kandi Technologies Group, Inc., a Delaware corporation (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain purchasers (the “Buyers”) pursuant to
which the Company will sell to the Buyers, in a registered direct offering, an aggregate of 4,127,908 units, (the “Units”) each consisting of one share (the “Shares”) of our common stock, par value $0.001 per share
(“Common Stock”) and 0.18 warrants to purchase a share of our Common Stock (the “Warrants”), at a purchase price of $17.20 per share, for aggregate gross proceeds to the Company of $71,000,000.00, before
deducting fees to the placement agent and other estimated offering expenses payable by the Company. At the initial closing, the Company shall issue Units consisting of an aggregate of 4,127,908 shares of our Common Stock and Warrants initially
exercisable into an aggregate of up to 743,024 shares of our Common Stock.
In addition, each Buyer that purchases at least $30 million in the initial offering of Shares and Warrants (each, a “Major Buyer”) will have an option to purchase its pro rata share of up to a $30 million additional Units, at one
or more additional closings, at the purchase price of $17.20 per share for a period commencing after the initial closing date and ending on November 17, 2014.
Assuming the Major Buyers fully exercise their rights to purchase additional Units at such additional closing or additional closings, as applicable, the Company shall have issued, in the aggregate, Units consisting of an aggregate of 1,744,186
shares of our Common Stock and Warrants initially exercisable into an aggregate of up to 313,954 shares of our Common Stock,
The Warrants have a term of 17 months and are exercisable by the holders at any time after the date of issuance, or the applicable closing date, at an exercise price of $21.50 per share. The exercise price and the number of shares issuable upon
exercise of the Warrants are subject to an adjustment upon the occurrence of certain events, including, but not limited to, stock splits or dividends, business combinations, sale of assets, similar recapitalization transactions, or other similar
transactions. The exercise price of the Warrants is subject to adjustment in the event that the Company issues or is deemed to issue shares of our Common Stock for less than the applicable exercise price of the Warrants. The exercisability of the
Warrants may be limited if, upon exercise, the holder or any of its affiliates would beneficially own more than 4.99% of our Common Stock.
Pursuant to the terms of the Purchase Agreement, the Company and the Buyers have agreed that: (i) subject to certain exceptions, the Company will not, within the sixty (60) trading days following the initial closing of this financing transactions
enter into any agreement to issue or announce the issuance or proposed issuance of any securities; (ii) for a period of 12 months, the Company will not enter into an agreement to effect a “Variable Rate Transaction,” as that term is
defined in the Purchase Agreement; and (iii) if the Company issues securities within the 12 months following the initial closing, the Buyers shall have the right to purchase up to 30% of the securities on the same terms, conditions and price
provided for in the proposed issuance of securities.
FT Global Capital, Inc. (“FT Global Capital”) acted as the exclusive placement agent in connection with this offering pursuant to the terms of a placement agent agreement, dated August 11, 2014, between the Company and FT Global Capital
(the “Placement Agent Agreement”). Pursuant to the Placement Agent Agreement, the Company agreed to pay FT Global Capital a cash fee equal to five percent (5%) of the aggregate proceeds received by the Company from the sale of its
securities to investors introduced to the Company by FT Global Capital. FT Global Capital is also entitled to additional tail compensation for any financings consummated within the 12-month period following the termination of the Placement Agent
Agreement to the extent that such financing is provided to the Company by investors that FT Global Capita had introduced to the Company. In addition to the cash fees, the Company agreed to issue to the Placement Agent warrants to purchase an
aggregate of up to 5% of the aggregate number of shares of our Common Stock sold in the offering (the “Placement Agent Warrants”). The Placement Agent Warrants shall generally be on the same terms and conditions as the Warrants, provided
that (i) the Placement Agent Warrants have an exercise price of 120% of the purchase price, and (ii) the Placement Agent Warrants shall not be exercisable for a period of six months from the initial closing date and shall be exercisable for 17
months thereafter.
The Shares, the Warrants, the Placement Agent Warrants and our Common Stock issuable upon exercise of the Warrants and the Placement Agent Warrants are being offered by the Company pursuant to an effective shelf registration statement on Form S-3,
which was filed with the Securities and Exchange Commission on June 20, 2014 and was declared effective on August 6, 2014 (File No.
333-196938).
The foregoing description of the Purchase Agreement, the
Placement Agent Agreement and the form of Warrant do not purport to be complete
and are qualified in their entirety by reference to the full text of such
agreements, copies of which are attached hereto as Exhibits 10.1, 10.2 and 4.1,
respectively, and are incorporated herein by reference. Readers should review
such agreements for a complete understanding of the terms and conditions
associated with these transactions.
Item 8.01 Other Events
On August 29, 2014, the Company issued a press release
announcing the offering, a copy of which is attached hereto as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
KANDI TECHNOLOGIES GROUP,
INC.
Date: August 29, 2014 |
By:
/s/ Hu Xiaoming |
|
Hu Xiaoming |
|
Chief Executive Officer
|
EXECUTION VERSION
[FORM OF WARRANT]
KANDI TECHNOLOGIES GROUP, INC.
WARRANT TO PURCHASE
COMMON STOCK
Warrant No.: ________________
Date of Issuance:
_____________, 2014 (Issuance Date)
Kandi Technologies Group, Inc., a Delaware corporation (the
Company), hereby certifies that, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, [BUYERS], the
registered holder hereof or its permitted assigns (the Holder), is
entitled, subject to the terms set forth below, to purchase from the Company, at
the Exercise Price (as defined below) then in effect, upon exercise of this
Warrant to Purchase Common Stock (including any Warrants to Purchase Common
Stock issued in exchange, transfer or replacement hereof, the Warrant),
at any time or times on or after the Issuance Date, but not after 11:59 p.m.,
New York time, on the Expiration Date (as defined below), (subject to adjustment
as provided herein) fully paid and non-assessable shares of Common Stock (as
defined below) (the Warrant Shares). Except as otherwise defined
herein, capitalized terms in this Warrant shall have the meanings set forth in
Section 17. This Warrant is one of the Warrants to Purchase Common Stock (the
SPA Warrants) issued pursuant to Section 1 of that certain Securities
Purchase Agreement, dated as of August 29, 2014 (the Subscription
Date), by and among the Company and the investors (the Buyers)
referred to therein (the Securities Purchase Agreement).
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise. Subject to the terms and
conditions hereof (including, without limitation, the limitations set forth in
Section 1(f)), this Warrant may be exercised by the Holder on any day on or
after the Issuance Date, in whole or in part, by delivery (whether via facsimile
or otherwise) of a written notice, in the form attached hereto as Exhibit
A (the Exercise Notice), of the Holders election to exercise this
Warrant. Within one (1) Trading Day following an exercise of this Warrant as
aforesaid, the Holder shall deliver payment to the Company of an amount equal to
the Exercise Price in effect on the date of such exercise multiplied by the
number of Warrant Shares as to which this Warrant was so exercised (the
Aggregate Exercise Price) in cash or via wire transfer of immediately
available funds if, subject to the provisions of Section 1(d), the Holder did
not notify the Company in such Exercise Notice that such exercise was made
pursuant to a Cashless Exercise (as defined in Section 1(d)) at a time and under
circumstances which permit a Cashless Exercise. The Holder shall not be required
to deliver the original of this Warrant in order to effect an exercise
hereunder. Execution and delivery of an Exercise Notice with respect to less
than all of the Warrant Shares shall have the same effect as cancellation of the
original of this Warrant and issuance of a new Warrant evidencing the right to
purchase the remaining number of Warrant Shares. Execution and delivery of an
Exercise Notice for all of the then-remaining Warrant Shares shall have the same
effect as cancellation of the original of this Warrant after delivery of the
Warrant Shares in accordance with the terms hereof. On or before the first
(1st) Trading Day following the date on which the Company has
received an Exercise Notice, the Company shall transmit by facsimile an
acknowledgment of confirmation of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to the Holder and the Company’s transfer agent (the “Transfer Agent”). On or before the third
(3rd) Trading Day following the date on which the Company has received such Exercise Notice, the Company shall (X) provided that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program, upon the request of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC
through its Deposit/ Withdrawal at Custodian system, or (Y) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder or, at the Holder’s instruction pursuant to the
Exercise Notice, the Holder’s agent or designee, in each case, sent by reputable overnight courier to the address as specified in the applicable Exercise Notice, a certificate, registered in the Company’s share register in the name of
the Holder or its designee (as indicated in the applicable Exercise Notice), for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all
corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery
of the certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant submitted for exercise
is greater than the number of Warrant Shares being acquired upon an exercise, then, at the request of the Holder, the Company shall as soon as practicable and in no event later than three (3) Business Days after any exercise and at its own expense,
issue and deliver to the Holder (or its designee) a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of
Warrant Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to be issued shall be rounded up to the nearest
whole number. The Company shall pay any and all taxes and fees which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant.
(b) Exercise Price. For purposes of this Warrant, “Exercise Price” means $21.50, subject to adjustment as provided herein.
(c) Company’s Failure to Timely Deliver Securities. If the Company shall fail, for any reason or for no reason, to issue to the Holder within three (3) Trading Days after receipt of the applicable Exercise Notice, a certificate for the
number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s share register or to credit the Holder’s balance account with DTC for such number of shares of Common Stock to
which the Holder is entitled upon the Holder’s exercise of this Warrant (as the case may be) and if on or after such third (3rd) Trading Day the Holder (or any other Person in respect, or on behalf, of the Holder) purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any
portion of the number of shares of Common Stock, issuable upon such exercise that the Holder so anticipated receiving from the Company, then, in addition to all other remedies available to the Holder, the Company shall, within three (3) Business
Days after the Holder’s request and in
the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including reasonable brokerage commissions and other reasonable out-of-pocket expenses, if any) for the shares of Common
Stock so purchased (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation to so issue and deliver such certificate or credit
the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate, or (ii)
promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such shares of Common Stock or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the
Holder is entitled upon the Holder’s exercise hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock multiplied by
(B) the lowest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date of the applicable Exercise Notice and ending on the date of such issuance and payment under this clause (ii).
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(d) Cashless Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below), if, at the time of exercise hereof, the Registration Statement (as defined in the Securities Purchase Agreement) is not
effective (or the prospectus contained therein is not available for use) for the issuance by the Company to the Holder of all of the Warrant Shares, then the Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu
of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A x C)
B
For purposes of the foregoing formula:
A= the total number of shares with respect to which this Warrant is then being exercised.
B= as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day
that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal
securities laws) on such Trading Day, (ii) the Bid Price of the Common Stock as of the time of the Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such
Exercise Notice is both executed and delivered pursuant to Section 1(a) hereof after the close of “regular trading hours” on such Trading Day.
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C= the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
(e) Disputes. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares to be issued pursuant to the terms hereof, the Company shall promptly issue to the Holder the
number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 14.
(f) Limitations on Exercises. Notwithstanding anything to the contrary contained in this Warrant, this Warrant shall not be exercisable by the Holder hereof to the extent (but only to the extent) that the Holder together with any of its
affiliates would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock after giving effect to such exercise. To the extent the above limitation applies, the determination of whether this Warrant shall
be exercisable (vis-à-vis other convertible, exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which such securities shall be exercisable (as among all such securities owned by the Holder) shall,
subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior inability to exercise this Warrant pursuant to this paragraph shall
have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. For the purposes of this paragraph, beneficial ownership and all determinations and calculations (including,
without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d) of the 1934 Act (as defined in the Securities Purchase Agreement) and the rules and regulations promulgated thereunder.
The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum
Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to a
successor Holder of this Warrant. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any
time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding, including by virtue of any prior conversion or
exercise of convertible or exercisable securities into Common Stock, including, without limitation, pursuant to this Warrant or securities issued pursuant to the Securities Purchase Agreement. By written notice to the Company, any Holder may
increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% specified in such notice; provided that (x) any such increase will not be effective until the 61st day after such notice is delivered to the Company, and (y)
any such increase or decrease will apply only to the Holder sending such notice and not to any other holder of SPA Warrants.
(g) Insufficient Authorized Shares. The Company shall at all times keep reserved for issuance under this Warrant a number of shares of Common Stock as shall be necessary to satisfy
the Company’s obligation to issue shares of Common Stock hereunder (without regard to any limitation otherwise contained herein with respect to the number of shares of Common Stock that may be acquirable upon exercise of this Warrant). If,
notwithstanding the foregoing, and not in limitation thereof, at any time while any of the SPA Warrants remain outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to
reserve for issuance upon exercise of the SPA Warrants at least a number of shares of Common Stock equal to the number of shares of Common Stock as shall from time to time be necessary to effect the exercise of all of the SPA Warrants then
outstanding (the “Required Reserve Amount”) (an “Authorized Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an
amount sufficient to allow the Company to reserve the Required Reserve Amount for all the SPA Warrants then outstanding. Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an
Authorized Share Failure, but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase in the number of authorized shares of
Common Stock. In connection with such meeting, the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common Stock and to
cause its board of directors to recommend to the stockholders that they approve such proposal.
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2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 2.
(a) Stock Dividends and Splits. Without limiting any provision of Section 2(b) or Section 4, if the Company, at any time on or after the date of the Securities Purchase Agreement, (i) pays a stock dividend on one or more classes of its then
outstanding shares of Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of
its then outstanding shares of Common Stock into a larger number of shares or (iii) combines (by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number of shares, then
in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of
Common Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or
distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination. If any event requiring an adjustment under this paragraph occurs
during the period that an Exercise Price is calculated hereunder, then the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the date of the Securities Purchase Agreement, the Company issues or sells, or in accordance with this Section 2 is deemed to have issued or sold, any shares
of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account
of the Company, but excluding (x) any Excluded Securities (as defined in the Securities Purchase Agreement) and (y) any Additional Excluded Securities), issued or sold or deemed to have been issued or sold for a consideration per share (the
“New Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (such Exercise Price then in effect is referred to as the “Applicable
Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the
foregoing (including, without limitation, determining the adjusted Exercise Price and consideration per share under this Section 2(b)), the following shall be applicable:
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(i) Issuance of Options. If the Company in any manner grants or sells
any Options and the lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option is less
than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes of this Section
2(b)(i), the “lowest price per share for which one share of Common Stock is issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option”
shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting or sale of such Option, upon exercise of such Option
and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable upon the exercise of any such
Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting or sale of
such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option plus the value of any other consideration received or receivable by, or benefit conferred on, the
holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such
Options or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells any Convertible Securities and the lowest price per share for which one share of Common Stock is issuable upon the conversion, exercise or exchange thereof
is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the
purposes of this Section 2(b)(ii), the “lowest price per share for which one share of Common Stock is issuable upon the conversion, exercise or exchange thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale of the
Convertible Security and upon conversion, exercise or exchange of such Convertible Security and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable upon conversion, exercise or
exchange thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale of such Convertible Security plus the value of any other consideration received or
receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock
upon conversion, exercise or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other
provisions of this Section 2(b), except as contemplated below, no further adjustment of the Exercise Price shall be made by reason of such issue or sale.
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(iii) Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities,
or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time, the Exercise Price in effect at the time of such increase or decrease shall be
adjusted to the Exercise Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as
the case may be, at the time initially granted, issued or sold. For purposes of this Section 2(b)(iii), if the terms of any Option or Convertible Security that was outstanding as of the date of issuance of this Warrant are increased or decreased in
the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of
such increase or decrease. No adjustment pursuant to this Section 2(b) shall be made if such adjustment would result in an increase of the Exercise Price then in effect.
(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined
by the Holder, the “Primary Security”, and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”), together comprising one integrated transaction, the aggregate
consideration per share of Common Stock with respect to such Primary Security shall be deemed to be equal to the difference of (x) the lowest price per share for which one share of Common Stock was issued in such integrated transaction (or was
deemed to be issued pursuant to Section 2(b)(i) or 2(b)(ii) above, as applicable) solely with respect to such Primary Security, minus (y) with respect to such Secondary Securities, the sum of (I) the Black Scholes Consideration Value of each such
Option, if any, (II) the fair market value (as determined by the Holder) or the Black Scholes Consideration Value, as applicable, of such Adjustment Right, if any, and (III) the fair market value (as determined by the Holder) of such Convertible
Security, if any, in each case, as determined on a per share basis in accordance with this Section 2(b)(iv). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed
to have been issued or sold for cash, the consideration received therefor (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes
Consideration Value) will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such
consideration received by the Company (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration Value) will be the fair
value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security
for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the
Company is the surviving entity, the amount of consideration therefor (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes
Consideration Value) will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair
value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser
jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.
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(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities
or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(c) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to only paragraph (a) of this Section 2, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or
decreased proportionately, so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment
(without regard to any limitations on exercise contained herein).
(d) Other Events. In the event that the Company (or any Subsidiary (as defined in the Securities Purchase Agreement)) shall take any action to which the provisions hereof are not
strictly applicable, or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine and implement an appropriate adjustment in the Exercise
Price and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder, provided that no such adjustment pursuant to this Section 2(d) will increase the Exercise Price or decrease the number of Warrant Shares as otherwise
determined pursuant to this Section 2, provided further that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Company’s board of directors and the Holder shall
agree, in good faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be final and binding and whose fees and expenses shall be borne by the Company.
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(e) Calculations. All calculations under this Section 2 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not
include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.
3. RIGHTS UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of
Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the
Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon a complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Maximum
Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such
Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distributions would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such
Distribution to such extent (or the beneficial ownership of any such shares of Common Stock as a result of such Distribution to such extent) and such Distribution to such extent shall be held in abeyance for the benefit of the Holder until such
time, if ever, as its right thereto would not result in the Holder exceeding the Maximum Percentage).]
4. PURCHASE RIGHTS; FUNDAMENTAL TRANSACTIONS.
(a) Purchase Rights. In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro
rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon a complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Maximum Percentage)
immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant,
issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to
participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such
time, if ever, as its right thereto would not result in the Holder exceeding the Maximum Percentage).
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(b) Fundamental Transactions. The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in writing all of the obligations of the Company under this Warrant and the other Transaction
Documents (as defined in the Securities Purchase Agreement) in accordance with the provisions of this Section 4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder prior to such
Fundamental Transaction, such approval not to be unreasonably withheld, conditioned or delayed, including agreements to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant, including, without limitation, which is exercisable for a corresponding number of shares of capital stock equivalent to the shares of Common Stock acquirable and receivable upon exercise
of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account
the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments to the number of shares of capital stock and such exercise price being for the purpose of
protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction) and (ii) the Successor Entity (including its Parent Entity) is a publicly traded corporation whose common stock is quoted on or
listed for trading on an Eligible Market. Upon the consummation of each Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of the applicable Fundamental Transaction, the provisions
of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company
under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of each Fundamental Transaction, the Successor Entity shall deliver to the Holder
confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except
such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter)) issuable upon the exercise of this Warrant prior to the applicable Fundamental Transaction, such shares of publicly traded common stock (or
its equivalent) of the Successor Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised
immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this Warrant), as adjusted in accordance with the provisions of this Warrant. Notwithstanding the foregoing, the Holder may elect, at
its sole option, by delivery of written notice to the Company to waive this Section 4(b) to permit the Fundamental Transaction without the assumption of this Warrant. In addition to and not in substitution for any other rights hereunder, prior to
the consummation of each Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares of Common Stock (a “Corporate
Event”), the Company shall make appropriate provision to insure that the Holder will thereafter have the right to receive upon an exercise of this Warrant at any time after the consummation of the applicable Fundamental Transaction but
prior to the Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter))
issuable upon the exercise of the Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would
have been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the applicable Fundamental Transaction (without regard to any limitations on the exercise of this
Warrant). Provision made pursuant to the preceding sentence shall be in a form and substance reasonably satisfactory to the Holder.
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(c) Black Scholes Value. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the Holder delivered at any time commencing on the earliest to occur of (x) the public disclosure of any Fundamental
Transaction, (y) the consummation of any Fundamental Transaction and (z) the Holder first becoming aware of any Fundamental Transaction through the date that is ninety (90) days after the public disclosure of the consummation of such Fundamental
Transaction by the Company pursuant to a Current Report on Form 8-K filed with the SEC, the Company or the Successor Entity (as the case may be) shall purchase this Warrant from the Holder on the date of such request by paying to the Holder cash in
an amount equal to the Black Scholes Value.
(d) Application. The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and Corporate Events and shall be applied as if this Warrant (and any such subsequent warrants) were fully exercisable
and without regard to any limitations on the exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage, applied however with respect to shares of capital stock registered under the 1934
Act and thereafter receivable upon exercise of this Warrant (or any such other warrant)).
5. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined in the Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase
Agreement) or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (a)
shall not increase the
par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (b) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon the exercise of this Warrant, and (c) shall, so long as any of the SPA Warrants are outstanding, take all action necessary to reserve and keep available out of its authorized and unissued
shares of Common Stock, solely for the purpose of effecting the exercise of the SPA Warrants, the maximum number of shares of Common Stock as shall from time to time be necessary to effect the exercise of the SPA Warrants then outstanding (without
regard to any limitations on exercise).
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6. WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share
capital of the Company for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to
vote, give or withhold consent to any corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the
Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall
provide the Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with the giving thereof to the stockholders.
7. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with
Section 7(d)), registered as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number of Warrant Shares then underlying this Warrant is being
transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing the right to purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant (as to which a written certification and the indemnification
contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and
cancellation of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
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(c) Exchangeable for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the
aggregate the right to purchase the number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares as is designated by the Holder at the time of such
surrender; provided, however, no warrants for fractional shares of Common Stock shall be given.
(d) Issuance of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such
new Warrant, the right to purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the Warrant Shares designated by the Holder which, when added to the number of
shares of Common Stock underlying the other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance date, as indicated on the face of such new
Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions as this Warrant.
8. NOTICES; CURRENCY; PAYMENTS.
(a) Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section 8(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt
written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder
(i) immediately upon each adjustment of the Exercise Price and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s) and (ii) at least fifteen (15) days prior to the date on which the
Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property to holders of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made
known to the public prior to or in conjunction with such notice being provided to the Holder and (iii) at least ten (10) Trading Days prior to the consummation of any Fundamental Transaction. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information regarding the Company or any of its Subsidiaries, the Company shall simultaneously file such notice with the SEC (as defined in the Securities Purchase Agreement) pursuant to a Current
Report on Form 8-K. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.
(b) Currency. All amounts owing under this Warrant that, in accordance with their terms, are paid in cash shall be paid in United States dollars (“U.S. Dollars”). All amounts denominated in other currencies (if any) shall
be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate”
means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Warrant, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that
where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period of time).
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(c) Payments. Whenever any payment is to be made by the Company to any Person pursuant to this Warrant, such payment shall be made in lawful money of the United States of America via wire transfer of U.S. Dollars in immediately available
funds in accordance with the Holder’s wire transfer instructions delivered to the Company on or prior to such payment date or, in the absence of such instructions, by a certified check drawn on the account of the Company and sent via overnight
courier service to such Person at such address as previously provided to the Company in writing (which address, in the case of each of the Buyers, shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase
Agreement).
9. AMENDMENT AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than Section 1(f)) may be amended and the Company may take any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the Holder. The Holder shall be entitled, at its option, to the benefit of any amendment of (a) any other similar warrant issued under the Securities Purchase Agreement or (b)
any other similar warrant. No consideration shall be offered or paid to the Holder to amend or consent to a waiver or modification of any provision of this Warrant unless the same consideration is also offered to all of the holders of the other SPA
Warrants. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
10. SEVERABILITY. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable
shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Warrant so long as this
Warrant as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to
replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
11. GOVERNING LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal
laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than
the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the Holder or to enforce a judgment or other court ruling in favor of the Holder. The Company hereby appoints CT Corporation System, with offices at 111 Eighth Avenue, New York, New York
10011 as its agent for service of process in the United States. If service of process is effected pursuant to the above sentence, such service will be deemed sufficient under New York law and the Company shall not assert otherwise. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
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12. JUDGMENT CURRENCY.
(a) If for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 12 referred to as the
“Judgment Currency”) an amount due in U.S. Dollars under this Warrant, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:
(i) the date actual payment of the amount due, in the
case of any proceeding in the courts of New York or in the courts of any other jurisdiction that will give effect to such conversion being made on such date: or
(ii) the date on which the foreign court determines, in the case of any proceeding in
the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 12(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
(b) If in the case of any proceeding in the court of any jurisdiction referred to in Section 12(a)(ii) above, there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due,
the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of U.S. Dollars which
could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
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(c) Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Warrant.
13. CONSTRUCTION; HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for convenience of reference
and shall not form part of, or affect the interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the Closing Date in such other Transaction
Documents unless otherwise consented to in writing by the Holder.
14. DISPUTE RESOLUTION. In the case of a dispute as to the determination of the Exercise Price, the Closing Sale Price, the Bid Price or fair market value or the arithmetic calculation of the Warrant Shares (as the case may be), the Company
or the Holder (as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile (a) within two (2) Business Days after receipt of the applicable notice giving rise to such dispute to the
Company or the Holder (as the case may be) or (b) if no notice gave rise to such dispute, at any time after the Holder learned of the circumstances giving rise to such dispute (including, without limitation, as to whether any issuance or sale or
deemed issuance or sale was an issuance or sale or deemed issuance or sale of Excluded Securities). If the Holder and the Company are unable to agree upon such determination or calculation (as the case may be) of the Exercise Price, the Closing Sale
Price, the Bid Price or fair market value or the number of Warrant Shares (as the case may be) within three (3) Business Days of such disputed determination or arithmetic calculation being submitted to the Company or the Holder (as the case may be),
then the Company shall, within two (2) Business Days submit via facsimile (i) the disputed determination of the Exercise Price, the Closing Sale Price, the Bid Price or fair market value (as the case may be) to an independent, reputable investment
bank selected by the Holder or (ii) the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company shall cause at its expense the investment bank or the accountant (as the case may be)
to perform the determinations or calculations (as the case may be) and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives such disputed determinations or calculations (as the case may be).
Such investment bank’s or accountant’s determination or calculation (as the case may be) shall be binding upon all parties absent demonstrable error.
15. REMEDIES, CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and the other Transaction
Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with the terms of
this Warrant. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, exercises and the like
(and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a
breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such
breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the
Company’s compliance with the terms and conditions of this Warrant (including, without limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise of this Warrant
shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance
and delivery of any certificate in a name other than the Holder or its agent on its behalf.
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16. TRANSFER. This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company.
17. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings: (a) “Additional Excluded Securities” means any shares of Common Stock issued (or deemed issued) in any Subsequent
Placement (as defined in the Securities Purchase Agreement); provided that (i) the Holder (or any affiliate of the Holder) purchases securities in such Subsequent Placement and (ii) such Subsequent Placement has a minimum offering size of $30
million.
(b) “Adjustment Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale in accordance with Section 2(b)) of shares of Common
Stock (other than rights of the type described in Section 3 and 4 hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any
cash settlement rights, cash adjustment or other similar rights).
(c) “Bid Price” means, for any security as of the particular time of determination, the bid price for such security on the Principal Market as reported by Bloomberg as of such time of determination, or, if the Principal Market is
not the principal securities exchange or trading market for such security, the bid price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg as of such time of
determination, or if the foregoing does not apply, the bid price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg as of such time of determination, or, if no bid price is
reported for such security by Bloomberg as of such time of determination, the average of the bid prices of any market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau,
Inc.) as of such time of determination. If the Bid Price cannot be calculated for a security as of the particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the
procedures in Section 14. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar
transaction during such period.
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(d) “Black Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment Right (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of
definitive documents with respect to the issuance of such Option or Convertible Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Option,
Convertible Security or Adjustment Right (as the case may be) as of the date of issuance of such Option, Convertible Security or Adjustment Right (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater
of 90% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Option, Convertible Security or Adjustment
Right (as the case may be).
(e) “Black Scholes Value” means the value of the unexercised portion of this Warrant remaining on the date of the Holder’s request pursuant to Section 4(c), which value is calculated using the Black Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the greater of (1) the highest Closing Sale Price of the Common Stock during the period beginning on the Trading Day immediately
preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to Section 4(c) and (2) the sum of
the price per share being offered in cash in the applicable Fundamental Transaction (if any) plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii) a strike price equal to the Exercise
Price in effect on the date of the Holder’s request pursuant to Section 4(c), (iii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the greater of (1) the remaining term of this Warrant as of the date of
the Holder’s request pursuant to Section 4(c) and (2) the remaining term of this Warrant as of the date of consummation of the applicable Fundamental Transaction or as of the date of the Holder’s request pursuant to Section 4(c) if such
request is prior to the date of the consummation of the applicable Fundamental Transaction, (iv) a zero cost of borrow and (v) an expected volatility equal to the greater of 90% and the 100 day volatility obtained from the HVT function on Bloomberg
(determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the earliest to occur of (x) the public disclosure of the applicable Fundamental Transaction, (y) the consummation of the applicable Fundamental
Transaction and (z) the date on which the Holder first became aware of the applicable Fundamental Transaction.
(f) “Bloomberg” means Bloomberg, L.P.
(g) “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.
18
(h) “Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours
basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for
such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security
in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security
as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price
of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in
accordance with the procedures in Section 14. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(i) “Common Stock” means (i) the Company’s shares of common stock, $0.001 par value per share, and (ii) any capital stock into which such common stock shall have been changed or any share capital resulting from a
reclassification of such common stock.
(j) “Convertible Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise
entitles the holder thereof to acquire, any shares of Common Stock.
(k) “Eligible Market” means The New York Stock Exchange, the NYSE Amex, the Nasdaq Global Market or the Principal Market.
(l) “Equity Conditions” means: (i) on each day during the period beginning one month prior to the applicable date of determination and ending on and including the applicable date of determination the Registration Statement is
effective and the prospectus contained therein shall be available for the issuance by the Company to the Holder of all of the Warrant Shares (disregarding any limitation on exercise of this Warrant); (ii) on each day during the period beginning
three months prior to the applicable date of determination and ending on and including the applicable date of determination (the “Equity Conditions Measuring Period”), the Common Stock (including all of the Warrant Shares) is
listed or designated for quotation (as applicable) on an Eligible Market and shall not have been suspended from trading on an Eligible Market (other than suspensions of not more than two (2) days and occurring prior to the applicable date of
determination due to business announcements by the Company) nor shall delisting or suspension by an Eligible Market have been threatened (with a reasonable prospect of delisting occurring) or pending either (A) in writing by such Eligible Market or
(B) by falling below the minimum listing maintenance requirements of the Eligible Market on which the Common Stock is then listed or designated for quotation (as applicable); (iii) on each day during the Equity Conditions Measuring Period, the
Company shall have delivered all shares of
Common Stock issuable upon exercise of this Warrant on a timely basis as set forth in Section 1(a) hereof and all other shares of capital stock required to be delivered by the Company on a timely basis as set forth in the other Transaction
Documents; (iv) any shares of Common Stock to be issued in connection with the event requiring determination may be issued in full without violating Section 1(f) hereof; (v) any shares of Common Stock to be issued in connection with the event
requiring determination may be issued in full without violating the rules or regulations of the Eligible Market on which the Common Stock is then listed or designated for quotation (as applicable); (vi) on each day during the Equity Conditions
Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred which has not been abandoned, terminated or consummated; (vii) the Company shall have no knowledge of any fact that would
reasonably be expected to cause the Registration Statement to not be effective or the prospectus contained therein to not be available for the issuance by the Company to the Holder of all of the Warrant Shares (disregarding any limitation on
exercise of this Warrant); (viii) the Holder shall not be in (and no other Buyer shall be in) possession of any material, non-public information provided to any of them by the Company, any of its Subsidiaries or any of their respective affiliates,
employees, officers, representatives, agents or the like; and (ix) on each day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each provision, covenant, representation or warranty of any of the
Transaction Documents and shall not have breached any, provision, covenant, representation or warranty of any of the Transaction Documents.
19
(m) “Equity Conditions Failure” means, with respect to a particular date of determination, that on any day during the period commencing twenty (20) Trading Days immediately prior to such date of determination, the Equity
Conditions have not been satisfied (or waived in writing by the Holder).
(n) “Expiration Date” means the date that is [ ], which is seventeen months from the Issuance Date, or, if such date falls on a day other than a Business Day or on which trading does not take place on the Principal Market (a
“Holiday”), the next date that is not a Holiday.
(o) “Fundamental Transaction” means that (i) the Company or any of its Subsidiaries shall, directly or indirectly, in one or more related transactions, (A) consolidate or merge with or into (whether or not the Company or any of
its Subsidiaries is the surviving corporation) any other Person, or (B) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets to any other Person, or (C) allow any
other Person to make a purchase, tender or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares of Voting Stock of the Company held by the Person or
Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), or (D) consummate a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other Person whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares of Voting
Stock of the Company held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (E) (1) reorganize,
recapitalize or reclassify the Common Stock,
(2) effect or consummate a stock combination, reverse stock split or other similar transaction involving the Common Stock or (3) make any public announcement or disclosure with respect to any stock combination, reverse stock split or other similar
transaction involving the Common Stock (including, without limitation, any public announcement or disclosure of (a) any potential, possible or actual stock combination, reverse stock split or other similar transaction involving the Common Stock or
(b) board or stockholder approval thereof, or the intention of the Company to seek board or stockholder approval of any stock combination, reverse stock split or other similar transaction involving the Common Stock), or (ii) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the Company.
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(p) “Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(q) “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than
one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(r) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.
(s) “Principal Market” means the Nasdaq Global Select Market.
(t) “Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity)
with which such Fundamental Transaction shall have been entered into.
(u) “Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or
securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the
Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at
4:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder.
(v) “Voting Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the general voting power to elect, or the general power to appoint, at least a majority of the
board of directors, managers or trustees of
such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
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(w) “VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the
principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “Volume at
Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New
York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest
closing ask price of any of the market makers for such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If VWAP cannot be calculated for such security on such date on any of the
foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such
dispute shall be resolved in accordance with the procedures in Section 14. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
22
18. COMPANY OPTIONAL REDEMPTION. If at any time after the date hereof, (i) the Closing Bid Price of the Common Stock is equal to or greater than $40.85 per share (as adjusted for stock splits, stock combinations and the like occurring
from and after the Issuance Date) (the “Trigger Price”) for a period of seven (7) consecutive Trading Days (the “Measuring Period”), (ii) no Equity Conditions Failure shall have occurred, and (iii) the aggregate
dollar trading volume (as reported on Bloomberg) of the Common Stock on the applicable Eligible Market for each Trading Day during the Measuring Period exceeds $10 million per day, then the Company shall have the right to purchase all, or
any part, of then-remaining portion of this Warrant from the Holder as set forth below (a “Company Redemption”). The Company may exercise its right to purchase the entire then-remaining portion of this Warrant under this Section
18 by delivering (provided that all of the conditions set forth in clauses (i) through (iii) above are then satisfied), on the first (1st) Trading Day immediately following the satisfaction of all the conditions set forth in clauses (i)
through (iii) above, a written notice thereof to the Holder (the “Redemption Notice” and the date the Holder receives such notice by facsimile is referred to as the “Redemption Notice Date”). The Company shall
only be permitted to submit one Redemption Notice to the Holder pursuant to this Section 18. The Redemption Notice shall be irrevocable. The Redemption Notice shall (A) state the Trading Day selected for the Company Redemption in accordance with
this Section 18, which Trading Day shall be at least five (5) Trading Days but not more than twenty (20) Trading Days following the Redemption Notice Date (the “Redemption Date”), (B) contain a certification from the Chief
Executive Officer of the Company that there has been no Equity Conditions Failure and (C) contain a certification from the Chief Executive Officer of the Company that the Company has simultaneously taken the same action with respect to all of the
Warrants (as defined in the Securities Purchase Agreement) that are then eligible to be purchased by the Company. On the Redemption Date, the Company shall pay an amount equal to the product of (x) the number of Warrant Shares then
issuable upon exercise of this Warrant (without regard to any limitations of exercise set forth herein) and (y) $0.001 (the “Redemption Price”) to the Holder on the Redemption Date by wire transfer of immediately available
funds to an account specified by the Holder. Notwithstanding anything contained in this Section 18 to the contrary, if (x) any shares of Common Stock trade for a price less than the Trigger Price on any day Trading Day during the period commencing
on the Redemption Notice Date and ending on the Trading Day immediately preceding the Redemption Date; (y) the aggregate dollar trading volume (as reported on Bloomberg) of the Common Stock on the applicable Eligible Market on any day Trading Day
during the period commencing on the Redemption Notice Date and ending on the Trading Day immediately preceding the Redemption Date is less than $10 million; or (z) an Equity Conditions Failure occurs on any day during the period commencing on
the Redemption Notice Date and ending on the Redemption Date which has not been waived by the Holder, then, in any case, the applicable Redemption Notice delivered to the Holder shall be null and void ab initio and the Company Redemption shall not
occur. If the Company elects to cause a Company Redemption of this Warrant pursuant to this Section 18, then it must simultaneously take the same action with respect to all of the other Warrants that are then eligible to be purchased in the same
proportion as the Company Redemption of this Warrant. Notwithstanding the foregoing, the Holder may exercise all or any portion of this Warrant at any time and from time to time after the Redemption Notice Date until the Holder’s receipt of
the Redemption Price from the Company and any such exercise of this Warrant shall proportionally reduce the Redemption Price.
[signature page follows]
23
IN WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date set out above.
KANDI TECHNOLOGIES GROUP, INC.
By:____________________________________
Name: Hu Xiaoming
Title: Chief Executive Officer
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT TO PURCHASE COMMON STOCK
KANDI TECHNOLOGIES GROUP, INC.
The undersigned holder hereby exercises
the right to purchase _________________of the shares of Common Stock (Warrant
Shares) of Kandi Technologies Group, Inc., a Delaware corporation (the Company),
evidenced by Warrant to Purchase Common Stock No. _______(the Warrant).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Warrant.
1. Form of Exercise Price. The Holder intends that
payment of the Exercise Price shall be made as:
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a Cash Exercise with respect to
Warrant Shares; and/or |
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a Cashless Exercise with respect to
Warrant Shares. |
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In the event that the Holder has elected a Cashless Exercise
with respect to some or all of the Warrant Shares to be issued pursuant hereto,
the Holder hereby represents and warrants that (i) this Exercise Notice was
executed by the Holder at __________[a.m.][p.m.] on the date set forth below and
(ii) if applicable, the Bid Price as of such time of execution of this Exercise
Notice was $________.]
1. Form of Exercise Price. The Holder intends that
payment of the Exercise Price shall be made as a Cash Exercise.]
2. Payment of Exercise Price. In the event that the
Holder has elected a Cash Exercise with respect to some or all of the Warrant
Shares to be issued pursuant hereto, the Holder shall pay the Aggregate Exercise
Price in the sum of $___________________to the Company in accordance with the
terms of the Warrant.
3. Delivery of Warrant Shares.
The Company shall deliver to Holder, or its designee or agent as specified
below, __________Warrant Shares in accordance with the terms of the Warrant.
Delivery shall be made to Holder, or for its benefit, as follows:
[ ] Check here if
requesting delivery as a certificate to the following name and to the following
address:
[ ] Check here if
requesting delivery by Deposit/Withdrawal at Custodian as follows:
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DTC
Participant: |
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DTC
Number: |
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Account Number: |
Date: _______________, _________ |
_____________________________ |
Name of Registered Holder |
By: __________________________ |
Name: |
Title: |
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Tax ID:
_____________________ |
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Facsimile:____________________ |
EXHIBIT B
ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby
directs ______________to issue the above indicated number of shares of Common
Stock in accordance with the Transfer Agent Instructions dated _________,
20__, from the Company and acknowledged and agreed to by _______________.
KANDI TECHNOLOGIES GROUP, INC.
By:____________________________________
Name:
Title:
August 29, 2014
Board of Directors |
Kandi Technologies Group, Inc. |
Jinhua City Industrial Zone |
Jinhua, Zhejiang Province |
Peoples Republic of China |
Post Code 321016 |
Re: Issuance and Sale of Shares of Common Stock and Warrants
Ladies and Gentlemen:
We have acted as legal counsel to
Kandi Technologies Group, Inc., a Delaware corporation (the Company),
in connection with the issuance by the Company of (i) 4,127,908 shares (the
Shares) of common stock, par value $0.001 per share, of the Company
(Common Stock); and (ii) 743,024 warrants (the Warrants) to
purchase an aggregate of 743,024 shares of Common Stock (the Warrant
Shares) at an exercise price of $21.50 per share.
The Shares and the Warrants are
being issued by the Company pursuant to a Securities Purchase Agreement, dated
August 29, 2014 (the Purchase Agreement), as well as an effective
registration statement (the Registration Statement) on Form S-3 (File
No. 333-196938) that was declared effective by the U.S. Securities and Exchange
Commission (the Commission) on August 6, 2014, the statutory prospectus
included in the Registration Statement (the Base Prospectus), and the
prospectus supplement dated August 29, 2014 (the Prospectus Supplement)
filed with the Commission pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended (the Securities Act).
This opinion is being furnished
in accordance with the requirements of Item 601(b)(5) of Regulation S-K
promulgated under the Securities Act, and no opinion is expressed herein as to
any matter pertaining to the contents of the Registration Statement, the Base
Prospectus or the Prospectus Supplement, other than as expressly stated herein
with respect to the issuance of the Shares, the Warrants and the Warrant Shares.
In connection with this opinion,
we have examined such documents and considered such legal matters deemed by us
to be relevant to this opinion letter, including the (i) applicable statutory
provisions and related rules and regulations of the Delaware General Corporation
Law and the reported judicial decisions interpreting those laws, (ii) the
Certificate of Incorporation of the Company, as amended through the date hereof
(the Certificate of Incorporation), (iii) the Bylaws of the Company
(the Bylaws), (iv) the Purchase Agreement (filed as exhibit 10.1 to the
Companys Current Report on Form 8-K, dated August 29, 2014), (v) the form of Warrant (filed as exhibit 4.1 to the
Companys Current Report on Form 8-K, dated August 29, 2014), (vi) the Registration Statement, (vii) the Base Prospectus, (viii) the Prospectus Supplement, and (ix) duly adopted resolutions of the board of directors of the Company relating to the issuance of the Shares, the Warrants and the Warrant Shares. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein. With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced or certified copies, and the authenticity of the originals of those latter documents. As to questions of fact material to this opinion, we have, to the extent deemed appropriate, relied upon, without independent verification or investigation of the accuracy or completeness thereof, certain representations of certain officers of the Company and a certificate of an officer of the Company delivered to us.
Kandi Technologies Group, Inc.
August 29, 2014
Page 2
Our opinion is limited to
applicable statutory provisions of the Delaware General Corporation Law and the
reported judicial decisions interpreting those laws, and federal laws of the
United States of America to the extent referred to specifically herein. We are
generally familiar with the Delaware General Corporation Law as currently in
effect and the judicial decisions thereunder and have made such inquiries and
review of matters of fact and law as we determined necessary to render the
opinions contained herein. We assume no obligation to revise or supplement this
opinion letter in the event of future changes in such laws or the
interpretations thereof or such facts. We express no opinion regarding the
Securities Act, or any other federal or state laws or regulations.
Based upon the foregoing and
subject to the assumptions, limitations and exceptions set forth herein, we are
of the opinion that as of the date hereof:
1. The Shares have been duly
authorized for issuance pursuant to the Purchase Agreement and, when issued and
delivered by the Company pursuant to the Purchase Agreement against receipt of
the consideration set forth therein, the Shares will be validly issued, fully
paid and nonassessable.
2. The Warrants have been duly
authorized for issuance pursuant to the Purchase Agreement.
3. The Warrant Shares have been
duly authorized, and when issued upon exercise of the Warrants against payment
of the exercise price in accordance with the terms of the Warrants, will be
validly issued, fully paid and nonassessable.
We hereby consent to the use of
our name under the caption Legal Matters in the Prospectus Supplement, and to
the filing of this opinion as an exhibit to the Companys Current Report on Form
8-K, filed on August 29, 2014. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission adopted under
the Act.
Kandi Technologies Group, Inc.
August 29, 2014
Page 3
This opinion is issued to you
solely for use in connection with the Registration Statement and is not to be
quoted or otherwise referred to in any financial statements of the Company or
any other document, nor is it to be filed with or furnished to any other
government agency or other person, without our prior written consent.
Very truly yours,
/s/Pryor Cashman LLP
Pryor
Cashman LLP
Execution Version
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE
AGREEMENT (this Agreement), dated as of August 29, 2014, is by and
among Kandi Technologies Group, Inc., a Delaware corporation with headquarters
located at Jinhua City Industrial Zone, Jinhua, Zhejiang Province, Peoples
Republic of China, Post Code 321016 (the Company), and each of the
investors listed on the Schedule of Buyers attached hereto (individually, a
Buyer and collectively, the Buyers).
RECITALS
A. The
Company and each Buyer desire to enter into this transaction to purchase the
Common Shares (as defined below) and Warrants (as defined below) set forth
herein pursuant to a currently effective shelf registration statement on Form
S-3, which has at least $300,000,000 of unallocated securities, including Common
Stock (as defined below) and warrants registered thereunder (Registration Number
333-196938) (the Registration Statement), which Registration Statement
has been declared effective in accordance with the Securities Act of 1933, as
amended (the 1933 Act), by the United States Securities and Exchange
Commission (the SEC).
B. Each
Buyer wishes to purchase, and the Company wishes to sell at the Initial Closing
(as defined below), upon the terms stated in this Agreement, (i) the aggregate
number of shares of common stock, $0.001 par value per share, of the Company
(the Common Stock) set forth opposite such Buyers name in column (3)
on the Schedule of Buyers (which aggregate amount for all Buyers shall be
4,127,908 shares of Common Stock and shall collectively be referred to herein as
the Initial Common Shares), and (ii) a warrant to initially acquire up
to the aggregate number of shares of Common Stock set forth opposite such
Buyers name in column (5) on the Schedule of Buyers, as evidenced by a
certificate in the form attached hereto as Exhibit A-1 (the
Initial Warrants) (as exercised, collectively, the Initial Warrant
Shares).
C. Subject
to the terms and conditions set forth in this Agreement, each Buyer with an
Initial Purchase Price (as defined below) of at least $30 million may, in its
sole option, elect to participate in one or more Additional Closings (as defined
below) (each, a Major Buyer) for the purchase by such Major Buyer, and
the sale by the Company, of (i) up to such aggregate number of shares of Common
Stock set forth opposite such Major Buyers name in column (4) on the Schedule
of Buyers (which aggregate amount for all Major Buyers shall be 1,744,186 shares
of Common Stock and shall collectively be referred to herein as the
Additional Common Shares, and together with the Initial Common Shares,
the Common Shares), and (ii) a warrant to initially acquire up to the
aggregate number of shares of Common Stock set forth opposite such Major Buyers
name in column (6) on the Schedule of Buyers (subject to a proportional decrease
if such Major Buyer does not elect to acquire all of the Additional Common
Shares eligible to be purchased by such Major Buyer at such Additional Closing
(i.e. 18% warrant coverage)), as evidenced by a certificate in the form attached
hereto as Exhibit A-2 (the Additional Warrants, and
together with the Initial Warrants, the Warrants) (as exercised,
collectively, the Additional Warrant Shares, and together with the
Initial Warrant Shares, the Warrant Shares).
D. The
Common Shares, the Warrants and the Warrant Shares are collectively referred to
herein as the Securities.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each Buyer hereby agree as follows:
1. |
PURCHASE AND SALE OF COMMON SHARES AND
WARRANTS. |
(a) Common
Shares and Warrants.
(i) Initial Closing. The Company shall issue and
sell to each Buyer, and each Buyer severally, but not jointly, shall purchase
from the Company on the Initial Closing Date (as defined below), such aggregate
number of Initial Common Shares as is set forth opposite such Buyers name in
column (3) on the Schedule of Buyers along with Initial Warrants to initially
acquire up to that aggregate number of Initial Warrant Shares as is set forth
opposite such Buyers name in column (5) on the Schedule of Buyers.
(ii) Additional Closings. Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 1(b)(ii) below
with respect to any Additional Closing, the Company shall issue and sell to each
Major Buyer electing to participate in such Additional Closing, and each such
Major Buyer severally, but not jointly, shall purchase from the Company on the
Additional Closing Date (as defined below), with respect to such Additional
Closing such aggregate number of Additional Common Shares as is set forth in the
applicable Additional Closing Notice (as defined below) of such Major Buyer, but
not to exceed such aggregate number of Additional Common Shares opposite such
Major Buyers name in column (4) on the Schedule of Buyers along with Additional
Warrants to initially acquire up to that aggregate number of Additional Warrant
Shares as is set forth opposite such Major Buyers name in column (6) on the
Schedule of Buyers (subject to a proportional decrease if such Major Buyer does
not elect to acquire all of the Additional Common Shares eligible to be
purchased by such Major Buyer at the Additional Closing (i.e. 18% warrant
coverage)).
(ii) Limitations on Exercise. The parties hereto
acknowledge and agree that the aggregate number of Warrant Shares initially
issuable upon exercise of Warrants to be purchased by the Buyers as described in
this Section 1, the recitals and the Schedule of Buyers have been calculated
without regard to any limitations on exercise set forth in the applicable
Warrants.
2
(b)
Closings.
(i) Initial Closings. The initial closing (the
Initial Closing) of the purchase of the Common Shares and the
Warrants by the Buyers shall occur at the offices of Greenberg Traurig, LLP,
MetLife Building, 200 Park Avenue, New York, NY 10166 or such other place as the
parties shall agree. The date and time of the Initial Closing (the Initial
Closing Date) shall be 10:00 a.m., New York time, on the third
(3rd) Trading Day (as defined in the Warrants) after the date hereof
(or such earlier date as is mutually agreed to by the Company and each Buyer).
As used herein Business Day means any day other than a Saturday, Sunday
or other day on which commercial banks in New York, New York are authorized or
required by law to remain closed.
(ii) Additional Closings.
(1) Additional Closing Dates. Subject to the
satisfaction (or waiver) of the conditions set forth in this Section 1(b)(ii),
the date and time of each additional closing (each, an Additional
Closing, and together with the Initial Closing, each, a Closing)
shall be 10:00 a.m., New York time on the third (3rd) Trading Day after the
Company shall have received an Additional Closing Notice from a Major Buyer (or
such later date as is mutually agreed to by the Company and such Major Buyer)
(each, an Additional Closing Date and together with the Initial
Closing, each a Closing Date).
(2) Additional Closing Mechanics.
(A) Subject to Section 1(b)(ii)(2)(B) below, any Major
Buyer may, in its sole option, elect to effect an Additional Closing by delivery
of a written notice in the form attached hereto as Exhibit B
(each, an Additional Closing Notice, and the date thereof, each, an
Additional Closing Notice Date) to the Company at any time after the
date hereof, but not after 11:59 p.m., New York time, on November 17, 2014
(provided that such period shall be extended by the number of Trading Days
during such period and any extension thereof contemplated by this proviso on
which the Registration Statement is not effective or any prospectus contained
therein is not available for use by the Buyer) setting forth (w) such aggregate
number of Additional Common Shares to be purchased by such Major Buyer at such
Additional Closing (which aggregate number (together with any Additional Shares
of Common Stock previously issued to such Major Buyer) may not exceed such
aggregate number of Additional Common Shares opposite such Major Buyers name in
column (4) on the Schedule of Buyers), (x) such aggregate number of Additional
Warrant Shares initially issuable upon exercise of the Additional Warrant to be
purchased by such Major Buyer at such Additional Closing (which aggregate number
(together with any Warrant Shares initially issuable upon exercise of any
Additional Warrants previously issued to such Major Buyer) shall not exceed the
aggregate number of Additional Warrant Shares as is set forth opposite such
Major Buyers name in column (6) on the Schedule of Buyers (subject to a
proportional decrease if such Major Buyer does not elect to acquire all of the
Additional Common Shares eligible to be purchased by such Major Buyer at the
Additional Closing (i.e. 18% warrant coverage)), (y) the applicable Additional
Purchase Price for such Major Buyer and (z) the applicable Additional Closing
Date. Upon delivery of an Additional Closing Notice, such Major Buyer shall be
deemed for all corporate purposes to have become the holder of record of such
Additional Common Shares and such Additional Warrant specified in such
Additional Closing Notice to be delivered to such Major Buyer (or its designee)
on such applicable Additional Closing Date, irrespective of the date such
Additional Common Shares are credited to the Major Buyers (or its designees)
DTC (as defined below) account or the date of delivery of the certificates
evidencing such Additional Warrants (as the case may be).
3
(B) Limitations on Additional Closings.
Notwithstanding anything herein to the contrary, a Major Buyer shall not have
the right to deliver more than three Additional Closing Notices and the
Additional Purchase Price at any such Additional Closing shall not be less than
$3,000,000. In addition, a Major Buyer shall not have the right to deliver an
Additional Closing Notice (and no Additional Closing Notice in violation of this
Section 1(b)(ii)(2)(B) shall be valid or accepted by the Company), to the extent
(but only to the extent) that such Major Buyer together with any of its
affiliates would beneficially own in excess of 4.99% (the Maximum
Percentage) of the Common Stock after giving effect to such issuance of
Additional Common Shares as set forth on the applicable Additional Closing
Notice. To the extent the above limitation applies, the determination of whether
an Additional Closing Notice is valid (vis-à-vis other convertible, exercisable
or exchangeable securities owned by such Major Buyer or any of its affiliates)
and of which such securities shall be exercisable (as among all such securities
owned by such Major Buyer) shall, subject to such Maximum Percentage limitation,
be determined on the basis of the first submission to the Company for
conversion, exercise or exchange (as the case may be). No prior inability to
deliver a valid Additional Closing Notice pursuant to this paragraph shall have
any effect on the applicability of the provisions of this paragraph or the
ability of such Major Buyer to deliver a subsequent Additional Closing Notice.
For the purposes of this paragraph, beneficial ownership and all determinations
and calculations (including, without limitation, with respect to calculations of
percentage ownership) shall be determined in accordance with Section 13(d) of
the 1934 Act (as defined below) and the rules and regulations promulgated
thereunder. The provisions of this paragraph shall be implemented in a manner
otherwise than in strict conformity with the terms of this paragraph to correct
this paragraph (or any portion hereof) which may be defective or inconsistent
with the intended Maximum Percentage beneficial ownership limitation herein
contained or to make changes or supplements necessary or desirable to properly
give effect to such Maximum Percentage limitation. The holders of Common Stock
shall be third party beneficiaries of this paragraph and the Company may not
waive this paragraph without the consent of holders of a majority of its Common
Stock. For any reason at any time, upon the written or oral request of a Major
Buyer, the Company shall within one (1) Business Day confirm orally and in
writing to such Major Buyer the number of shares of Common Stock then
outstanding, including by virtue of any prior conversion or exercise of
convertible or exercisable securities into Common Stock or pursuant to any other
agreement, including, without limitation, securities issued pursuant to this
Agreement. By written notice to the Company, any Major Buyer may increase or
decrease the Maximum Percentage of such Major Buyer to any other percentage not
in excess of 9.99% specified in such notice; provided that (x) any such increase
will not be effective until the 61st day after such notice is delivered to the
Company, and (y) any such increase or decrease will apply only to such Major
Buyer sending such notice and not to any other Major Buyer.
4
(c)
Purchase Price. The aggregate purchase price for the Initial Common
Shares and the Initial Warrants to be purchased by each Buyer (each, an
Initial Purchase Price) shall be the amount set forth opposite such
Buyers name in column (7) on the Schedule of Buyers. The aggregate purchase
price for any Additional Common Shares and related Additional Warrants purchased
by a Major Buyer at an Additional Closing shall equal the product of (x) $17.20
and (y) such number of Additional Closing Shares set forth in the applicable
Additional Closing Notice of such Major Buyer (each, an Additional Purchase
Price, and together with the Initial Purchase Price, each, a Purchase
Price).
(d) Payment
of Purchase Price; Deliveries. On each Closing Date, (i) each Buyer
participating in such Closing shall pay its respective Purchase Price to the
Company for the Common Shares and the Warrants to be issued and sold to such
Buyer at such Closing, by wire transfer of immediately available funds in
accordance with the Companys written wire instructions (less, in the case of
the lead Buyer, the amounts withheld pursuant to Section 4(g)) and (ii) the
Company shall (A) cause Corporate Stock Transfer, Inc. (together with any
subsequent transfer agent, the Transfer Agent) through the Depository
Trust Company (DTC) Fast Automated Securities Transfer Program, to
credit such aggregate number of Common Shares that such Buyer is purchasing at
such Closing to such participating Buyers or its designees balance account
with DTC through its Deposit/Withdrawal at Custodian system, (B) deliver to each
participating Buyer the Warrant such Buyer is purchasing at such Closing, in
each case, duly executed on behalf of the Company and registered in the name of
such Buyer or its designee and (C) deliver to each such Buyer the other
documents, instruments and certificates set forth in Section 6(a)(ii) duly
executed on behalf of the Company.
(e) Failure
to Timely Deliver Common Shares. If the Company shall fail, for any reason
or for no reason (other than the applicable Buyers failure to deliver the
applicable Purchase Price at such applicable Closing), with respect to any Buyer
participating in the applicable Closing on the applicable Closing Date, to issue
and credit such Buyers (or its designees) balance account with DTC for such
number of Common Shares to which such Buyer is entitled at such Closing and if
on or after such Closing Date such Buyer (or any other Person in respect, or on
behalf, of such Buyer) purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by such Buyer of all
or any portion of the number of shares of Common Stock, or a sale of a number of
shares of Common Stock equal to all or any portion of the number of Common
Shares that such Buyer so anticipated receiving from the Company, then, in
addition to all other remedies available to such Buyer, the Company shall,
within three (3) Business Days after such Buyers request and in such Buyers
discretion, either (i) pay cash to such Buyer in an amount equal to such Buyers
total purchase price (including reasonable brokerage commissions and other
reasonable out-of-pocket expenses, if any) for the shares of Common Stock so
purchased (including, without limitation, by any other Person in respect, or on
behalf, of such Buyer) (the Buy-In Price), at which point the Companys
obligation to credit such Buyers (or its designees) balance account with DTC
for the number of Common Shares to which such Buyer is entitled at such Closing
(and to issue such Common Shares) shall terminate, or (ii) promptly honor its
obligation to so issue and credit such Buyers (or its designees) balance
account with DTC for the number of Common Shares to which such Buyer is entitled
at such Closing and pay cash to such Buyer in an amount equal to the excess (if
any) of the Buy-In Price over the product of (A) such number of Common Shares
multiplied by (B) the lowest Closing Sale Price (as defined in the Warrants) of
the Common Stock on any Trading Day during the period commencing on such Closing
Date and ending on the date of such issuance and payment under this clause
(ii).
5
2. |
BUYERS REPRESENTATIONS AND
WARRANTIES. |
Each Buyer, severally and not jointly,
represents and warrants to the Company with respect to only itself as of the
date hereof and as of the Closing Date and each applicable Additional Closing
Date, in the case of a Major Buyer participating in an Additional Closing:
(a)
Organization; Authority. Such Buyer is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents (as
defined below) to which it is a party and otherwise to carry out its obligations
hereunder and thereunder.
(b)
Validity; Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of such Buyer and constitutes the
legal, valid and binding obligations of such Buyer enforceable against such
Buyer in accordance with its terms, except as such enforceability may be limited
by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors rights and
remedies.
(c)
No Conflicts. The execution, delivery and performance by such Buyer of
this Agreement and the consummation by such Buyer of the transactions
contemplated hereby will not (i) result in a violation of the organizational
documents of such Buyer, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which such Buyer is a
party or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws) applicable to
such Buyer, except, in the case of clauses (ii) and (iii) above, for such
conflicts, defaults, rights or violations which would not, individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
ability of such Buyer to perform its obligations hereunder.
6
Certain Trading Activities. Solely
with respect to the Initial Closing, such Buyer has not directly or indirectly,
nor has any Person acting on behalf of or pursuant to any understanding with
such Buyer, engaged in any transactions in the securities of the Company
(including, without limitation, any Short Sales (as defined below) involving the
Companys securities) during the period commencing as of the time that such
Buyer was first contacted by the Placement Agent (as defined below) regarding
the specific investment in the Company contemplated by this Agreement and ending
immediately prior to the execution of this Agreement by such Buyer, excluding
any transaction in any securities of the Company that relates to the exercise or
assignment by a third party of any option sold or bought by such Buyer prior to
the initial date of contact of such Buyer. Short Sales means all short
sales as defined in Rule 200 promulgated under Regulation SHO under the
Securities Exchange Act of 1934, as amended (the 1934 Act) (but shall
not be deemed to include the location and/or reservation of borrowable shares of
Common Stock).
3. |
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY. |
The Company represents and warrants to
(x) each of the Buyers as of the date hereof and as of the Closing Date and (y)
each Major Buyer participating in an Additional Closing as of each of the
applicable Additional Closing Notice Date and the applicable Additional Closing
Date:
(a)
Organization and Qualification. Each of the Company and each of its
Subsidiaries are entities duly organized and validly existing and in good
standing under the laws of the jurisdiction in which they are formed, and have
the requisite power and authorization to own their properties and to carry on
their business as now being conducted and as presently proposed to be conducted.
Each of the Company and each of its Subsidiaries is duly qualified as a foreign
entity to do business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
Material Adverse Effect means any material adverse effect on (i) the
business, properties, assets, liabilities, operations (including results
thereof), condition (financial or otherwise) or prospects of the Company or any
Subsidiary, either individually or taken as a whole, (ii) the transactions
contemplated hereby or in any of the other Transaction Documents or (iii) the
authority or ability of the Company to perform any of its obligations under any
of the Transaction Documents. Other than the Persons (as defined below) set
forth in the Companys Quarterly Report on Form 10-Q, as filed with the SEC in
the SEC Documents (as defined below), the Company has no Subsidiaries.
Subsidiaries means any Person in which the Company, directly or
indirectly, (A) owns any of the outstanding capital stock or holds any equity or
similar interest of such Person or (B) controls or operates all or any part of
the business, operations or administration of such Person, and each of the
foregoing, is individually referred to herein as a Subsidiary.
(b)
Authorization; Enforcement; Validity. The Company has the requisite power
and authority to enter into and perform its obligations under this Agreement and
the other Transaction Documents and to issue the Securities in accordance with
the terms hereof and thereof. The execution and delivery of this Agreement and
the other Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Common Shares, the issuance of the Warrants and
the reservation for issuance and issuance of the Warrant Shares issuable upon
exercise of the Warrants) have been duly authorized by the Companys board of
directors and (other than the filing with the SEC of one or more prospectus
supplements required by the Registration Statement pursuant to Rule 424(b) under
the 1933 Act (collectively, the Prospectus Supplement) supplementing
the base prospectus forming part of the Registration Statement (the
Prospectus) and any other filings as may be required by any state
securities agencies) no further filing, consent or authorization is required by
the Company, its board of directors or its stockholders or other governing body.
This Agreement has been, and the other Transaction Documents will be prior to
the Initial Closing, duly executed and delivered by the Company, and each
constitutes the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with its respective terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of applicable creditors
rights and remedies and except as rights to indemnification and to contribution
may be limited by federal or state securities law. Transaction
Documents means, collectively, this Agreement, the Warrants, the
Irrevocable Transfer Agent Instructions (as defined below) and each of the other
agreements and instruments entered into or delivered by any of the parties
hereto in connection with the transactions contemplated hereby and thereby, as
may be amended from time to time.
7
(c)
Issuance of Securities; Registration Statement. The issuance of the
Common Shares and the Warrants are duly authorized and, upon issuance and
payment in accordance with the terms of the Transaction Documents, will be
validly issued, fully paid and non-assessable and free from all preemptive or
similar rights, taxes, liens, charges and other encumbrances with respect to the
issue thereof. As of each Closing, the Company shall have reserved from its duly
authorized capital stock not less than 100% of the maximum number of shares of
Common Stock issuable upon exercise of the Warrants (without taking into account
any limitations on the exercise of the Warrants set forth therein). The issuance
of the Warrant Shares is duly authorized, and upon exercise in accordance with
the Warrants, the Warrant Shares, when issued, will be validly issued, fully
paid and non-assessable and free from all preemptive or similar rights, taxes,
liens, charges and other encumbrances with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common Stock.
The issuance by the Company of the Securities has been registered under the 1933
Act, the Securities are being issued pursuant to the Registration Statement and
all of the Securities are freely transferable and freely tradable by each of the
Buyers without restriction. The Registration Statement is effective and
available for the issuance of the Securities thereunder and the Company has not
received any notice that the SEC has issued or intends to issue a stop-order
with respect to the Registration Statement or that the SEC otherwise has
suspended or withdrawn the effectiveness of the Registration Statement, either
temporarily or permanently, or intends or has threatened in writing to do so.
The Plan of Distribution section under the Registration Statement permits the
issuance and sale of the Securities hereunder and as contemplated by the other
Transaction Documents. Upon receipt of the Securities, each of the Buyers will
have good and marketable title to the Securities. The Registration Statement and
any prospectus included therein, including the Prospectus and the Prospectus
Supplement, complied in all material respects with the requirements of the 1933
Act and the 1934 Act and the rules and regulations of the SEC promulgated
thereunder and all other applicable laws and regulations. At the time the
Registration Statement and any amendments thereto became effective, at the date
of this Agreement and at each deemed effective date thereof pursuant to Rule
430B(f)(2) of the 1933 Act, the Registration Statement and any amendments
thereto complied and will comply in all material respects with the requirements
of the 1933 Act and did not and will not contain 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 not misleading. The Prospectus and
any amendments or supplements thereto (including, without limitation the
Prospectus Supplement), at the time the Prospectus or any amendment or
supplement thereto was issued and at each Closing Date, complied, and will
comply, in all material respects with the requirements of the 1933 Act and did
not, and will not, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company meets all of the requirements for the use of Form S-3 under the 1933 Act
for the offering and sale of the Securities contemplated by this Agreement and
the other Transaction Documents, and the SEC has not notified the Company of any
objection to the use of the form of the Registration Statement pursuant to Rule
401(g)(1) under the 1933 Act. The Registration Statement meets the requirements
set forth in Rule 415(a)(1)(x) under the 1933 Act. At the earliest time after
the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under
the 1933 Act) relating to any of the Securities, the Company was not and is not
an Ineligible Issuer (as defined in Rule 405 under the 1933 Act). The Company
(i) has not distributed any offering material in connection with the offer or
sale of any of the Securities and (ii) until no Buyer holds any of the
Securities, shall not distribute any offering material in connection with the
offer or sale of any of the Securities to, or by, any of the Buyers (if
required), in each case, other than the Registration Statement, the Prospectus
or the Prospectus Supplement. In accordance with Rule 5110(b)(7)(C)(i) of the
Financial Industry Regulatory Authority Manual, the offering of the Securities
has been registered with the SEC on Form S-3 under the 1933 Act pursuant to the
standards for Form S-3 in effect prior to October 21, 1992, and the Securities
are being offered pursuant to Rule 415 promulgated under the 1933 Act.
8
(d) No
Conflicts. The execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance of
the Common Shares, the Warrants and Warrant Shares and the reservation for
issuance of the Warrant Shares) will not (i) result in a violation of the
Certificate of Incorporation (as defined below) (including, without limitation,
any certificates of designation contained therein) or other organizational
documents of the Company or any of its Subsidiaries, any capital stock of the
Company, or Bylaws (as defined below), (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party or (iii) result in a violation
of any law, rule, regulation, order, judgment or decree (including, without
limitation, foreign, federal and state securities laws and regulations and the
rules and regulations of the Nasdaq Global Select Market (the Principal
Market)) applicable to the Company or any of its Subsidiaries or by which
any property or asset of the Company or any of its Subsidiaries is bound or
affected, except, in the case of clause (ii) or (iii) above, to the extent such
violations that could not reasonably be expected to have a Material Adverse
Effect.
(e)
Consents. The Company is not required to obtain any consent from,
authorization or order of, or make any filing or registration with (other than
the filing with the SEC of the Prospectus Supplement and any other filings as
may be required by any state securities agencies), any court, governmental
agency or any regulatory or self-regulatory agency or any other Person in order
for it to execute, deliver or perform any of its obligations under, or
contemplated by, the Transaction Documents, in each case, in accordance with the
terms hereof or thereof. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain at or prior to the
applicable Closing have been obtained or effected on or prior to such Closing
Date, and neither the Company nor any of its Subsidiaries are aware of any facts
or circumstances which might prevent the Company from obtaining or effecting any
of the registration, application or filings contemplated by the Transaction
Documents. The Company is not in violation of the requirements of the Principal
Market and has no knowledge of any facts or circumstances which could reasonably
lead to delisting or suspension of the Common Stock in the foreseeable
future.
9
(f)
Acknowledgment Regarding Buyers Purchase of Securities. The Company
acknowledges and agrees that each Buyer is acting solely in the capacity of an
arms length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby and that no Buyer is (i) an officer
or director of the Company or any of its Subsidiaries, (ii) an affiliate (as
defined in Rule 144 promulgated under the 1933 Act (or a successor rule thereto)
(collectively, Rule 144)) of the Company or any of its Subsidiaries or
(iii) to its knowledge, a beneficial owner of more than 10% of the shares of
Common Stock (as defined for purposes of Rule 13d-3 of the 1934 Act). The
Company further acknowledges that no Buyer is acting as a financial advisor or
fiduciary of the Company or any of its Subsidiaries (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by a Buyer or any of its
representatives or agents in connection with the Transaction Documents and the
transactions contemplated hereby and thereby is merely incidental to such
Buyers purchase of the Securities. The Company further represents to each Buyer
that the Companys decision to enter into the Transaction Documents has been
based solely on the independent evaluation by the Company and its
representatives.
(g)
Placement Agents Fees. The Company shall be responsible for the payment
of any placement agents fees, financial advisory fees, or brokers commissions
(other than for Persons engaged by any Buyer or its investment advisor) relating
to or arising out of the transactions contemplated hereby. Other than FT Global
Capital, Inc. (the Placement Agent), neither the Company nor any of its
Subsidiaries has engaged any placement agent or other agent in connection with
the offer or sale of the Securities.
(h) No
Integrated Offering. None of the Company, its Subsidiaries or any of their
affiliates, nor any Person acting on their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any
security, under circumstances that would cause this offering of the Securities
to require approval of stockholders of the Company under any applicable
stockholder approval provisions, including, without limitation, under the rules
and regulations of any exchange or automated quotation system on which any of
the securities of the Company are listed or designated for quotation. None of
the Company, its Subsidiaries, their affiliates nor any Person acting on their
behalf will take any action or steps that would cause the offering of any of the
Securities to be integrated with other offerings of securities of the Company.
10
(i)
Dilutive Effect. The Company understands and acknowledges that the number
of Warrant Shares will increase in certain circumstances. The Company further
acknowledges that its obligation to issue the Warrant Shares upon exercise of
the Warrants in accordance with this Agreement and the Warrants is absolute and
unconditional, regardless of the dilutive effect that such issuance may have on
the ownership interests of other stockholders of the Company.
(j)
Application of Takeover Protections; Rights Agreement. The Company and
its board of directors have taken all necessary action, if any, in order to
render inapplicable any control share acquisition, interested stockholder,
business combination, poison pill (including, without limitation, any
distribution under a rights agreement) or other similar anti-takeover provision
under the Certificate of Incorporation, Bylaws or other organizational documents
or the laws of the jurisdiction of its incorporation or otherwise which is or
could become applicable to any Buyer as a result of the transactions
contemplated by this Agreement, including, without limitation, the Companys
issuance of the Securities and any Buyers ownership of the Securities. The
Company and its board of directors have taken all necessary action, if any, in
order to render inapplicable any stockholder rights plan or similar arrangement
relating to accumulations of beneficial ownership of shares of Common Stock or a
change in control of the Company or any of its Subsidiaries.
(k) SEC
Documents; Financial Statements. During the two (2) years prior to the date
hereof, the Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC pursuant to the
reporting requirements of the 1934 Act (all of the foregoing filed prior to the
date hereof and all exhibits included therein and financial statements, notes
and schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the SEC Documents). The Company has
delivered to the Buyers or their respective representatives true, correct and
complete copies of each of the SEC Documents not available on the EDGAR system.
As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the SEC promulgated thereunder applicable to the SEC Documents, and none of the
SEC Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. As of
their respective dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto as in effect as of the time of filing. Such financial statements
have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments which will not be material, either individually or in the
aggregate). No other information provided by or on behalf of the Company to any
of the Buyers which is not included in the SEC Documents contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein not misleading, in the light of the
circumstance under which they are or were made. The Company has not been
informed by its independent accountants that they recommend that the Company
amend or restate any of the Financial Statements or that there is any need for
the Company to amend or restate any of the Financial Statements.
11
(l)
Absence of Certain Changes. Since the date of the Companys most recent
audited financial statements contained in a Form 10-K, except as disclosed in
the SEC Documents filed subsequent to such Form 10-K, there has been no material
adverse change and no material adverse development in the business, assets,
liabilities, properties, operations (including results thereof), condition
(financial or otherwise) or prospects of the Company or any of its Subsidiaries.
Since the date of the Companys most recent audited financial statements
contained in a Form 10-K, neither the Company nor any of its Subsidiaries has
(i) declared or paid any dividends, (ii) sold any assets outside of the ordinary
course of business or (iii) made any material capital expenditures, individually
or in the aggregate. Neither the Company nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any law or statute relating to
bankruptcy, insolvency, reorganization, receivership, liquidation or winding up,
nor does the Company or any Subsidiary have any knowledge or reason to believe
that any of their respective creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a
creditor to do so. The Company and its Subsidiaries, individually and on a
consolidated basis, are not as of the date hereof, and after giving effect to
the transactions contemplated hereby to occur at the applicable Closing will not
be, Insolvent (as defined below). Insolvent means, (A) with respect to
the Company and its Subsidiaries, on a consolidated basis, (1) the present fair
saleable value of the Companys and its Subsidiaries assets is less than the
amount required to pay the Companys and its Subsidiaries total Indebtedness
(as defined below), (2) the Company and its Subsidiaries are unable to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured or (3) the Company and its Subsidiaries
intend to incur or believe that they will incur debts that would be beyond their
ability to pay as such debts mature; and (B) with respect to the Company and
each Subsidiary, individually, (1) the present fair saleable value of the
Companys or such Subsidiarys (as the case may be) assets is less than the
amount required to pay its respective total Indebtedness, (2) the Company or
such Subsidiary (as the case may be) is unable to pay its respective debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured or (3) the Company or such Subsidiary
(as the case may be) intends to incur or believes that it will incur debts that
would be beyond its respective ability to pay as such debts mature. Neither the
Company nor any of its Subsidiaries has engaged in any business or in any
transaction, and is not about to engage in any business or in any transaction,
for which the Companys or such Subsidiarys remaining assets constitute
unreasonably small capital.
(m) No
Undisclosed Events, Liabilities, Developments or Circumstances. No event,
liability, development or circumstance has occurred or exists, or is reasonably
expected to occur or exist with respect to the Company, any of its Subsidiaries
or any of their respective businesses, properties, liabilities, prospects,
operations (including results thereof) or condition (financial or otherwise)
that (i) would be required to be disclosed by the Company under applicable
securities laws on a registration statement on Form S-1 filed with the SEC
relating to an issuance and sale by the Company of its Common Stock and which
has not been publicly announced, (ii) could have a material adverse effect on
any Buyers investment hereunder or (iii) could have a Material Adverse Effect.
12
(n) Conduct
of Business; Regulatory Permits. Neither the Company nor any of its
Subsidiaries is in violation of any term of or in default under its Certificate
of Incorporation, any certificate of designation, preferences or rights of any
other outstanding series of preferred stock of the Company or any of its
Subsidiaries or Bylaws or their organizational charter, certificate of formation
or certificate of incorporation or bylaws, respectively. Neither the Company nor
any of its Subsidiaries is in violation of any judgment, decree or order or any
statute, ordinance, rule or regulation applicable to the Company or any of its
Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct
its business in violation of any of the foregoing, except in all cases for
possible violations which could not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the generality of the foregoing, the
Company is not in violation of any of the rules, regulations or requirements of
the Principal Market and has no knowledge of any facts or circumstances that
could reasonably lead to delisting or suspension of the Common Stock by the
Principal Market in the foreseeable future. Since the date of the Companys last
Annual Report on Form 10-K filed with the SEC, (i) the Common Stock has been
listed or designated for quotation on the Principal Market, (ii) trading in the
Common Stock has not been suspended by the SEC or the Principal Market and (iii)
the Company has received no communication, written or oral, from the SEC or the
Principal Market regarding the suspension or delisting of the Common Stock from
the Principal Market. The Company and each of its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate regulatory
authorities necessary to conduct their respective businesses, except where the
failure to possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and neither the
Company nor any such Subsidiary has received any notice of proceedings relating
to the revocation or modification of any such certificate, authorization or
permit.
(o) Foreign
Corrupt Practices. Neither the Company nor any of its Subsidiaries nor any
director, officer, agent, employee or other Person acting on behalf of the
Company or any of its Subsidiaries has, in the course of its actions for, or on
behalf of, the Company or any of its Subsidiaries (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful payment to
any foreign or domestic government official or employee.
(p)
Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with
all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective
as of the date hereof, and all applicable rules and regulations promulgated by
the SEC thereunder that are effective as of the date hereof.
(q)
Transactions With Affiliates. Other than the grant of stock options
disclosed in the SEC Documents, none of the officers, directors or employees of
the Company or any of its Subsidiaries is presently a party to any transaction
with the Company or any of its Subsidiaries (other than for ordinary course
services as employees, officers or directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director or employee or, to the
knowledge of the Company or any of its Subsidiaries, any corporation,
partnership, trust or other Person in which any such officer, director or
employee has a substantial interest or is an employee, officer, director,
trustee or partner.
13
(r)
Equity Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of (i) 100,000,000 shares of Common Stock, of
which, 43,930,257 are issued and outstanding and 1,793,310 shares are reserved
for issuance pursuant to securities (other than the Common Shares and the
Warrants) exercisable or exchangeable for, or convertible into, shares of Common
Stock and (ii) 10,000,000 shares of preferred stock, none of which are issued
and outstanding. 56,069,743 shares of Common Stock are authorized but unissued
shares. All of such outstanding shares are duly authorized and have been, or
upon issuance will be, validly issued and are fully paid and non-assessable.
13,617,654 shares of the Companys issued and outstanding Common Stock on the
date hereof are owned by Persons who are affiliates (as defined in Rule 405 of
the 1933 Act and calculated based on the assumption that only officers,
directors and holders of at least 10% of the Companys issued and outstanding
Common Stock are affiliates without conceding that any such Persons are
affiliates for purposes of federal securities laws) of the Company or any of
its Subsidiaries. With the exception of Excelvantage Group Limited, which owns
approximately 27.3% of the Companys issued and outstanding shares of Common
Stock, to the Companys knowledge, no Person owns 10% or more of the Companys
issued and outstanding shares of Common Stock (calculated based on the
assumption that all Convertible Securities (as defined below), whether or not
presently exercisable or convertible, have been fully exercised or converted (as
the case may be) taking account of any limitations on exercise or conversion
(including blockers) contained therein without conceding that such identified
Person is a 10% stockholder for purposes of federal securities laws). Except as
disclosed in the SEC Documents: (i) none of the Companys or any Subsidiarys
capital stock is subject to preemptive rights or any other similar rights or any
liens or encumbrances suffered or permitted by the Company or any Subsidiary;
(ii) there are no outstanding options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or
rights convertible into, or exercisable or exchangeable for, any capital stock
of the Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional capital stock of the Company or any
of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any capital stock of the
Company or any of its Subsidiaries; (iii) there are no outstanding debt
securities, notes, credit agreements, credit facilities or other agreements,
documents or instruments evidencing Indebtedness of the Company or any of its
Subsidiaries or by which the Company or any of its Subsidiaries is or may become
bound; (iv) there are no financing statements securing obligations in any
amounts filed in connection with the Company or any of its Subsidiaries; (v)
there are no agreements or arrangements under which the Company or any of its
Subsidiaries is obligated to register the sale of any of their securities under
the 1933 Act (except pursuant to this Agreement); (vi) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries; (vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Securities; (viii) neither the Company nor any Subsidiary has any stock
appreciation rights or phantom stock plans or agreements or any similar plan
or agreement; and (ix) neither the Company nor any of its Subsidiaries have any
liabilities or obligations required to be disclosed in the SEC Documents which
are not so disclosed in the SEC Documents, other than those incurred in the
ordinary course of the Companys or its Subsidiaries respective businesses and
which, individually or in the aggregate, do not or could not have a Material
Adverse Effect. The Company has furnished to the Buyers true, correct and
complete copies of the Companys Certificate of Incorporation, as amended and as
in effect on the date hereof (the Articles of Incorporation),
and the Companys bylaws, as amended and as in effect on the date hereof (the
Bylaws), and the terms of all securities convertible into, or
exercisable or exchangeable for, shares of Common Stock and the material rights
of the holders thereof in respect thereto.
14
(s)
Indebtedness and Other Contracts. Neither the Company nor any of its
Subsidiaries (i) except as set forth in the SEC Documents, has any outstanding
Indebtedness (as defined below), (ii) is a party to any contract, agreement or
instrument, the violation of which, or default under which, by the other
party(ies) to such contract, agreement or instrument could reasonably be
expected to result in a Material Adverse Effect, (iii) is in violation of any
term of, or in default under, any contract, agreement or instrument relating to
any Indebtedness, except where such violations and defaults would not result,
individually or in the aggregate, in a Material Adverse Effect, or (iv) is a
party to any contract, agreement or instrument relating to any Indebtedness, the
performance of which, in the judgment of the Companys officers, has or is
expected to have a Material Adverse Effect. For purposes of this Agreement:
Indebtedness of any Person means, without duplication (A) all
indebtedness for borrowed money, (B) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (including,
without limitation, capital leases in accordance with generally accepted
accounting principles) (other than trade payables entered into in the ordinary
course of business), (C) all reimbursement or payment obligations with respect
to letters of credit, surety bonds and other similar instruments, (D) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (E) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property), (F) all monetary obligations under any
leasing or similar arrangement which, in connection with generally accepted
accounting principles, consistently applied for the periods covered thereby, is
classified as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any mortgage,
lien, pledge, charge, security interest or other encumbrance upon or in any
property or assets (including accounts and contract rights) owned by any Person,
even though the Person which owns such assets or property has not assumed or
become liable for the payment of such indebtedness, and (H) all Contingent
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (A) through (G) above; Contingent Obligation
means, as to any Person, any direct or indirect liability, contingent or
otherwise, of that Person with respect to any indebtedness, lease, dividend or
other obligation of another Person if the primary purpose or intent of the
Person incurring such liability, or the primary effect thereof, is to provide
assurance to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto; and Person means an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and a government or any
department or agency thereof.
15
(t) Absence
of Litigation. Except as disclosed in the SEC Documents, there is no action,
suit, proceeding, inquiry or investigation before or by the Principal Market,
any court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened in writing against or
affecting the Company or any of its Subsidiaries, the Common Stock or any of the
Companys or its Subsidiaries officers or directors which is outside of the
ordinary course of business or individually or in the aggregate material to the
Company or any of its Subsidiaries. No director, officer or employee of the
Company or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or
engaged in spoliation in reasonable anticipation of litigation. There has not
been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the SEC involving the Company, any of its Subsidiaries or
any current or former director or officer of the Company or any of its
Subsidiaries. The SEC has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company under the
1933 Act or the 1934 Act, including, without limitation, the Registration
Statement.
(u)
Insurance. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. Neither the Company nor any such Subsidiary has been refused any
insurance coverage sought or applied for, and neither the Company nor any such
Subsidiary has any reason to believe that it will be unable to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(v)
Employee Relations. Neither the Company nor any of its Subsidiaries is a
party to any collective bargaining agreement or employs any member of a union.
The Company believes that its and its Subsidiaries relations with their
respective employees are good. No executive officer (as defined in Rule 501(f)
promulgated under the 1933 Act) or other key employee of the Company or any of
its Subsidiaries has notified the Company or any such Subsidiary that such
officer intends to leave the Company or any such Subsidiary or otherwise
terminate such officers employment with the Company or any such Subsidiary. No
executive officer or other key employee of the Company or any of its
Subsidiaries is, or is now expected to be, in violation of any material term of
any employment contract, confidentiality, disclosure or proprietary information
agreement, non-competition agreement, or any other contract or agreement or any
restrictive covenant, and the continued employment of each such executive
officer or other key employee (as the case may be) does not subject the Company
or any of its Subsidiaries to any liability with respect to any of the foregoing
matters. The Company and its Subsidiaries are in compliance with all federal,
state, local and foreign laws and regulations respecting labor, employment and
employment practices and benefits, terms and conditions of employment and wages
and hours, except where failure to be in compliance would not, either
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(w)
Title. The Company and its Subsidiaries have good and marketable title in
fee simple to all real property, and have good and marketable title to all
personal property, owned by them which is material to the business of the
Company and its Subsidiaries, in each case, free and clear of all liens,
encumbrances and defects except such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company and any of its Subsidiaries. Any real property and
facilities held under lease by the Company or any of its Subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company or any of its Subsidiaries.
16
(x)
Intellectual Property Rights. The Company and its Subsidiaries own or
possess adequate rights or licenses to use all trademarks, trade names, service
marks, service mark registrations, service names, patents, patent rights,
copyrights, original works, inventions, licenses, approvals, governmental
authorizations, trade secrets and other intellectual property rights and all
applications and registrations therefor (Intellectual Property Rights)
necessary to conduct their respective businesses as now conducted and as
presently proposed to be conducted. None of the Companys or its Subsidiaries
Intellectual Property Rights have expired, terminated or been abandoned, or are
expected to expire, terminate or be abandoned, within three years from the date
of this Agreement. The Company has no knowledge of any infringement by the
Company or any of its Subsidiaries of Intellectual Property Rights of others.
There is no claim, action or proceeding being made or brought, or to the
knowledge of the Company or any of its Subsidiaries, being threatened, against
the Company or any of its Subsidiaries regarding their Intellectual Property
Rights. The Company is not aware of any facts or circumstances which might give
rise to any of the foregoing infringements or claims, actions or proceedings.
The Company and each of its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their Intellectual
Property Rights.
(y)
Environmental Laws. The Company and its Subsidiaries (i) are in
compliance with all Environmental Laws (as defined below), (ii) have received
all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval
where, in each of the foregoing clauses (i), (ii) and (iii), the failure to so
comply could be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect. Environmental Laws means all federal, state,
local or foreign laws relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of
chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes
(collectively, Hazardous Materials) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials, as well as all
authorizations, codes, decrees, demands or demand letters, injunctions,
judgments, licenses, notices or notice letters, orders, permits, plans or
regulations issued, entered, promulgated or approved thereunder.
(z)
Subsidiary Rights. The Company or one of its Subsidiaries has the
unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of its
Subsidiaries as owned by the Company or such Subsidiary.
17
(aa) Tax
Status. The Company and each of its Subsidiaries (i) has timely made or
filed all foreign, federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject, (ii) has
timely paid all taxes and other governmental assessments and charges that are
material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (iii) has set aside
on its books provision reasonably adequate for the payment of all taxes for
periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company and its
Subsidiaries know of no basis for any such claim. The Company is not operated in
such a manner as to qualify as a passive foreign investment company, as defined
in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.
(bb)
Internal Accounting and Disclosure Controls. The Company and each of its
Subsidiaries maintains internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles, including that (i) transactions are
executed in accordance with managements general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset and liability accountability, (iii) access to assets or
incurrence of liabilities is permitted only in accordance with managements
general or specific authorization and (iv) the recorded accountability for
assets and liabilities is compared with the existing assets and liabilities at
reasonable intervals and appropriate action is taken with respect to any
difference. The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the 1934 Act) that are effective in
ensuring that information required to be disclosed by the Company in the reports
that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the
SEC, including, without limitation, controls and procedures designed to ensure
that information required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is accumulated and communicated to the
Companys management, including its principal executive officer or officers and
its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure. Neither the Company nor any of its
Subsidiaries has received any notice or correspondence from any accountant or
other Person relating to any potential material weakness or significant
deficiency in any part of the internal controls over financial reporting of the
Company or any of its Subsidiaries.
(cc) Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company or any of its Subsidiaries and an
unconsolidated or other off balance sheet entity that is required to be
disclosed by the Company in its 1934 Act filings and is not so disclosed or that
otherwise could be reasonably likely to have a Material Adverse Effect.
(dd) Investment Company
Status. The Company is not, and upon consummation of the sale of the
Securities will not be, an investment company, an affiliate of an investment
company, a company controlled by an investment company or an affiliated
person of, or promoter or principal underwriter for, an investment
company as such terms are defined in the Investment Company Act of 1940, as
amended.
18
(ee)
Acknowledgement Regarding Buyers Trading Activity. It is understood and
acknowledged by the Company that (i) following the public disclosure of the
transactions contemplated by the Transaction Documents, in accordance with the
terms thereof, none of the Buyers have been asked by the Company or any of its
Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its
Subsidiaries, to desist from effecting any transactions in or with respect to
(including, without limitation, purchasing or selling, long and/or short) any
securities of the Company, or derivative securities based on securities issued
by the Company or to hold any of the Securities for any specified term; (ii) any
Buyer, and counterparties in derivative transactions to which any such Buyer
is a party, directly or indirectly, presently may have a short position in the
Common Stock which was established prior to such Buyers knowledge of the
transactions contemplated by the Transaction Documents; and (iii) each Buyer
shall not be deemed to have any affiliation with or control over any arms
length counterparty in any derivative transaction. The Company further
understands and acknowledges that following the public disclosure of the
transactions contemplated by the Transaction Documents pursuant to the Press
Release (as defined below) one or more Buyers may engage in hedging and/or
trading activities at various times during the period that the Securities are
outstanding, including, without limitation, during the periods that the value
and/or number of the Warrant Shares deliverable with respect to the Securities
are being determined and such hedging and/or trading activities, if any, can
reduce the value of the existing stockholders equity interest in the Company
both at and after the time the hedging and/or trading activities are being
conducted. The Company acknowledges that such aforementioned hedging and/or
trading activities do not constitute a breach of this Agreement or any other
Transaction Document or any of the documents executed in connection herewith or
therewith.
(ff)
Manipulation of Price. Neither the Company nor any of its Subsidiaries
has, and, to the knowledge of the Company, no Person acting on their behalf has,
directly or indirectly, (i) taken any action designed to cause or to result in
the stabilization or manipulation of the price of any security of the Company or
any of its Subsidiaries to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid any compensation for
soliciting purchases of, any of the Securities (other than the Placement Agent),
or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company or any of its
Subsidiaries.
(gg) U.S.
Real Property Holding Corporation. Neither the Company nor any of its
Subsidiaries is, or has ever been, and so long as any of the Securities are held
by any of the Buyers, shall become, a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as
amended, and the Company and each Subsidiary shall so certify upon any Buyers
request.
(hh)
Registration Eligibility. The Company is eligible to register the
issuance and sale of the Securities to the Buyers using Form S-3 promulgated
under the 1933 Act.
(ii)
Transfer Taxes. On the applicable Closing Date, all stock transfer or
other taxes (other than income or similar taxes) which are required to be paid
in connection with the issuance and sale of the Securities to be sold to each
Buyer hereunder will be, or will have been, fully paid or provided for by the
Company, and all laws imposing such taxes will be or will have been complied
with.
19
(jj) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries is
subject to the Bank Holding Company Act of 1956, as amended (the BHCA)
and to regulation by the Board of Governors of the Federal Reserve System (the
Federal Reserve). Neither the Company nor any of its Subsidiaries or
affiliates owns or controls, directly or indirectly, five percent (5%) or more
of the outstanding shares of any class of voting securities or twenty-five
percent (25%) or more of the total equity of a bank or any equity that is
subject to the BHCA and to regulation by the Federal Reserve. Neither the
Company nor any of its Subsidiaries or affiliates exercises a controlling
influence over the management or policies of a bank or any entity that is
subject to the BHCA and to regulation by the Federal Reserve.
(kk) Public
Utility Holding Act. None of the Company nor any of its Subsidiaries is a
holding company, or an affiliate of a holding company, as such terms are
defined in the Public Utility Holding Act of 2005.
(ll) Federal Power Act. None of the
Company nor any of its Subsidiaries is subject to regulation as a public
utility under the Federal Power Act, as amended.
(mm) No
Additional Agreements. The Company does not have any agreement or
understanding with any Buyer with respect to the transactions contemplated by
the Transaction Documents other than as specified in the Transaction Documents.
(nn) Real
Property. Each of the Company and its Subsidiaries holds good title to all
real property, leases in real property, or other interests in real property
owned or held by the Company or any of its Subsidiaries (the Real
Property) owned by the Company or any of its Subsidiaries (as applicable).
The Real Property is free and clear of all mortgages, defects, claims, liens,
pledges, charges, taxes, rights of first refusal, encumbrances, security
interests and other encumbrances (collectively Encumbrances) and is not
subject to any rights of way, building use restrictions, exceptions, variances,
reservations, or limitations of any nature except for (a) liens for current
taxes not yet due and (b) zoning laws and other land use restrictions that do
not impair the present or anticipated use of the property subject thereto.
(oo)
Fixtures and Equipment. Each of the Company and its Subsidiaries (as
applicable) has good title to, or a valid leasehold interest in, the tangible
personal property, equipment, improvements, fixtures, and other personal
property and appurtenances that are used by the Company or its Subsidiary in
connection with the conduct of its business (the Fixtures and
Equipment). The Fixtures and Equipment are structurally sound, are in good
operating condition and repair, are adequate for the uses to which they are
being put, are not in need of maintenance or repairs except for ordinary,
routine maintenance and repairs and are sufficient for the conduct of the
Companys and/or its Subsidiaries businesses (as applicable) in the manner as
conducted prior to the applicable Closing. Each of the Company and its
Subsidiaries owns all of its Fixtures and Equipment free and clear of all
Encumbrances except for (a) liens for current taxes not yet due and (b) zoning
laws and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto.
(pp)
Illegal or Unauthorized Payments; Political Contributions. Neither the
Company nor any of its Subsidiaries nor, to the best of the Companys knowledge
(after reasonable inquiry of its officers and directors), any of the officers,
directors, employees, agents or other representatives of the Company or any of
its Subsidiaries or any other business entity or enterprise with which the
Company or any Subsidiary is or has been affiliated or associated, has, directly
or indirectly, made or authorized any payment, contribution or gift of money,
property, or services, whether or not in contravention of applicable law, (a) as
a kickback or bribe to any Person or (b) to any political organization, or the
holder of or any aspirant to any elective or appointive public office except for
personal political contributions not involving the direct or indirect use of
funds of the Company or any of its Subsidiaries.
20
(qq) Money
Laundering. The Company and its Subsidiaries are in compliance with, and
have not previously violated, the USA Patriot Act of 2001 and all other
applicable U.S. and non-U.S. anti-money laundering laws and regulations,
including, without limitation, the laws, regulations and Executive Orders and
sanctions programs administered by the U.S. Office of Foreign Assets Control,
including, without limitation, (i) Executive Order 13224 of September 23, 2001
entitled, Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001));
and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.
(rr)
Management. Except as set forth in Schedule 3(rr) hereto, during
the past five year period, no current or former officer or director or, to the
knowledge of the Company, stockholder of the Company or any of its Subsidiaries
has been the subject of:
(i)
a petition under bankruptcy laws or any other
insolvency or moratorium law or the appointment by a court of a receiver, fiscal
agent or similar officer for such Person, or any partnership in which such
person was a general partner at or within two years before the filing of such
petition or such appointment, or any corporation or business association of
which such person was an executive officer at or within two years before the
time of the filing of such petition or such appointment;
(ii) a conviction in a criminal proceeding or a named
subject of a pending criminal proceeding (excluding traffic violations that do
not relate to driving while intoxicated or driving under the influence);
(iii) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining any such person from, or otherwise
limiting, the following activities:
(1) Acting as a futures
commission merchant, introducing broker, commodity trading advisor, commodity
pool operator, floor broker, leverage transaction merchant, any other person
regulated by the United States Commodity Futures Trading Commission or an
associated person of any of the foregoing, or as an investment adviser,
underwriter, broker or dealer in securities, or as an affiliated person,
director or employee of any investment company, bank, savings and loan
association or insurance company, or engaging in or continuing any conduct or
practice in connection with such activity;
(2) Engaging in any particular type of business
practice; or
(3)
Engaging in any activity in connection with the
purchase or sale of any security or commodity or in connection with any
violation of securities laws or commodities laws;
21
(iv) any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any authority barring, suspending or
otherwise limiting for more than 60 days the right of any such person to engage
in any activity described in the preceding sub paragraph, or to be associated
with persons engaged in any such activity;
(v)
a finding by a court of competent jurisdiction in a
civil action or by the SEC or other authority to have violated any securities
law, regulation or decree and the judgment in such civil action or finding by
the SEC or any other authority has not been subsequently reversed, suspended or
vacated; or
(vi) a finding by a court of competent jurisdiction in a
civil action or by the Commodity Futures Trading Commission to have violated any
federal commodities law, and the judgment in such civil action or finding has
not been subsequently reversed, suspended or vacated.
(ss)
Registration Rights. No holder of securities of the Company has rights to
the registration of any securities of the Company because of the filing of the
Registration Statement or the issuance of the Securities hereunder that could
expose the Company to material liability or any Buyer to any liability or that
could impair the Companys ability to consummate the issuance and sale of the
Securities in the manner, and at the times, contemplated hereby, which rights
have not been waived by the holder thereof as of the date hereof.
(tt)
Compliance With FINRA Rule 5110. At the time the Registration Statement
was declared effective by the SEC, and as of the date hereof and as of the
Initial Closing Date, the Company has (i) a 1934 Act reporting history in excess
of 36 months and (ii) an aggregate market value of voting stock held by
non-affiliates of in excess of $150 million.
(uu)
Disclosure. The Company confirms that neither it nor any other Person
acting on its behalf has provided any of the Buyers or their agents or counsel
with any information that constitutes or could reasonably be expected to
constitute material, non-public information concerning the Company or any of its
Subsidiaries, other than the existence of the transactions contemplated by this
Agreement and the other Transaction Documents. The Company understands and
confirms that each of the Buyers will rely on the foregoing representations in
effecting transactions in securities of the Company. All disclosure provided to
the Buyers regarding the Company and its Subsidiaries, their businesses and the
transactions contemplated hereby, including the schedules to this Agreement,
furnished by or on behalf of the Company or any of its Subsidiaries is true and
correct and does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
Each press release issued by the Company or any of its Subsidiaries during the
twelve (12) months preceding the date of this Agreement did not at the time of
release contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they are made,
not misleading. No event or circumstance has occurred or information exists with
respect to the Company or any of its Subsidiaries or its or their business,
properties, liabilities, prospects, operations (including results thereof) or
conditions (financial or otherwise), which, under applicable law, rule or
regulation, requires public disclosure at or before the date hereof or
announcement by the Company but which has not been so publicly disclosed. The
Company acknowledges and agrees that no Buyer makes or has made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 2.
22
(a)
Maintenance of Registration Statement For so long as any of the Warrants
remain outstanding, the Company shall use its best efforts to maintain the
effectiveness of the Registration Statement for the issuance thereunder of the
Warrant Shares, provided that if at any time while the Warrants are outstanding
the Company shall be ineligible to utilize Form S-3 (or any successor form) for
the purpose of issuance of the Warrant Shares, the Company shall promptly amend
the Registration Statement on such other form as may be necessary to maintain
the effectiveness of the Registration Statement for this purpose. If at any time
following the date hereof the Registration Statement is not effective or is not
otherwise available for the issuance of the Securities or any prospectus
contained therein is not available for use, the Company shall immediately notify
the holders of the Securities in writing that the Registration Statement is not
then effective or a prospectus contained therein is not available for use and
thereafter shall promptly notify such holders when the Registration Statement is
effective again and available for the issuance of the Securities or such
prospectus is again available for use.
(b)
Prospectus Supplement and Blue Sky. Immediately prior to execution of
this Agreement, the Company shall have delivered to the Buyers, and as soon as
practicable after execution of this Agreement the Company shall file, the
Prospectus Supplement with respect to the Initial Common Shares, the Initial
Warrants and the Initial Warrant Shares as required under, and in conformity
with, the 1933 Act, including Rule 424(b) thereunder. Immediately prior to each
Additional Closing Date, the Company shall have delivered to the Buyers, and as
soon as practicable after the Additional Closing Notice Date the Company shall
file, the Prospectus Supplement with respect to the Additional Common Shares,
the Additional Warrants and the Additional Warrant Shares related to such
Additional Closing as required under, and in conformity with, the 1933 Act,
including Rule 424(b) thereunder. If required, the Company, on or before the
applicable Closing Date, shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to, qualify the
Securities for sale to the Buyers at the applicable Closing pursuant to this
Agreement under applicable securities or Blue Sky laws of the states of the
United States (or to obtain an exemption from such qualification), and shall
provide evidence of any such action so taken to the Buyers on or prior to such
Closing Date. Without limiting any other obligation of the Company under this
Agreement, the Company shall timely make all filings and reports relating to the
offer and sale of the Securities required under all applicable securities laws
(including, without limitation, all applicable federal securities laws and all
applicable Blue Sky laws), and the Company shall comply with all applicable
federal, state and local laws, statutes, rules, regulations and the like
relating to the offering and sale of the Securities to the Buyers.
(c)
Reporting Status. Until the date on which no Warrants are outstanding
(the Reporting Period), the Company shall timely file all reports
required to be filed with the SEC pursuant to the 1934 Act, and the Company
shall not terminate its status as an issuer required to file reports under the
1934 Act even if the 1934 Act or the rules and regulations thereunder would no
longer require such filings or otherwise permit such termination.
23
(d) Use of
Proceeds. The Company shall use the net proceeds from the sale of the
Securities hereunder solely for general working capital purposes. Without
limiting the foregoing, except as set forth on Schedule 4(d), none of
such proceeds shall be used, directly or indirectly, (i) for the satisfaction of
any debt of the Company or any of its Subsidiaries (other than payment of trade
payables incurred after the date hereof in the ordinary course of business of
the Company and its Subsidiaries and consistent with prior practices), (ii) for
the redemption of any securities of the Company or (iii) with respect to any
litigation involving the Company or any of its Subsidiaries (including, without
limitation, (A) any settlement thereof or (B) the payment of any costs or
expenses related thereto).
(e)
Financial Information. The Company agrees to send the following to each
Buyer during the Reporting Period (i) unless the following are filed with the
SEC through EDGAR and are available to the public through the EDGAR system,
within one (1) Business Day after the filing thereof with the SEC, a copy of its
Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any interim
reports or any consolidated balance sheets, income statements, stockholders
equity statements and/or cash flow statements for any period other than annual,
any Current Reports on Form 8-K and any registration statements (other than on
Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the
following are filed with the SEC through EDGAR and are available to the public
through the EDGAR system, on the same day as the release thereof, facsimile
copies of all press releases issued by the Company or any of its Subsidiaries
and (iii) copies of any notices and other information made available or given to
the stockholders of the Company generally, contemporaneously with the making
available or giving thereof to the stockholders.
(f)
Listing. On or prior to each Closing Date, the Company shall promptly
secure the listing or designation for quotation (as the case may be) of all of
the Common Shares and Warrant Shares related to such Closing upon each national
securities exchange and automated quotation system, if any, upon which the
Common Stock is then listed or designated for quotation (as the case may be)
(subject to official notice of issuance) (but in no event later than the
applicable Closing Date) and shall maintain such listing or designation for
quotation (as the case may be) of all the shares of Common Stock from time to
time issuable under the terms of the Transaction Documents on such national
securities exchange or automated quotation system. The Company shall maintain
the Common Stocks listing or designation for quotation (as the case may be) on
the Principal Market, The New York Stock Exchange, the NYSE Amex, or the Nasdaq
Global Market (each, an Eligible Market). Neither the Company nor any
of its Subsidiaries shall take any action which could be reasonably expected to
result in the delisting or suspension of the Common Stock on an Eligible Market.
The Company shall pay all fees and expenses in connection with satisfying its
obligations under this Section 4(f).
24
(g)
Fees. The Company shall reimburse Greenberg Traurig, LLP for all costs
and expenses incurred by it or its affiliates in connection with the
transactions contemplated by the Transaction Documents (including, without
limitation, all legal fees and disbursements in connection therewith,
structuring, documentation and implementation of the transactions contemplated
by the Transaction Documents and due diligence and regulatory filings in
connection therewith) in a non-accountable amount equal to $30,000, which amount
shall be withheld by the lead Buyer from its Purchase Price at the Initial
Closing or paid by the Company on demand by Greenberg Traurig, LLP if the lead
Buyer terminates its obligations under this Agreement in accordance with Section
7 (as the case may be), in either case, less $15,000 which was previously
advanced to Greenberg Traurig, LLP by the Company. The Company shall be
responsible for the payment of any placement agents fees, financial advisory
fees, transfer agent fees, DTC fees or brokers commissions (other than for
Persons engaged by any Buyer) relating to or arising out of the transactions
contemplated hereby (including, without limitation, any fees payable to the
Placement Agent, who is the Companys sole placement agent in connection with
the transactions contemplated by this Agreement). The Company shall pay, and
hold each Buyer harmless against, any liability, loss or expense (including,
without limitation, reasonable attorneys fees and out-of-pocket expenses)
arising in connection with any claim relating to any such payment. Except as
otherwise set forth in the Transaction Documents, each party to this Agreement
shall bear its own expenses in connection with the sale of the Securities to the
Buyers.
(h) Pledge
of Securities. Notwithstanding anything to the contrary contained in this
Agreement, the Company acknowledges and agrees that the Securities may be
pledged by a Buyer in connection with a bona fide margin agreement or other loan
or financing arrangement that is secured by the Securities. The pledge of
Securities shall not be deemed to be a transfer, sale or assignment of the
Securities hereunder, and no Buyer effecting a pledge of Securities shall be
required to provide the Company with any notice thereof or otherwise make any
delivery to the Company pursuant to this Agreement or any other Transaction
Document. The Company hereby agrees to execute and deliver such documentation as
a pledgee of the Securities may reasonably request in connection with a pledge
of the Securities to such pledgee by a Buyer.
25
(i)
Disclosure of Transactions and Other Material Information. The Company
shall, on or before 8:30 a.m., New York time, on the date of this Agreement, (i)
issue a press release (the Press Release) reasonably acceptable to the
Buyers disclosing all the material terms of the transactions contemplated by the
Transaction Documents and (ii) file a Current Report on Form 8-K describing all
the material terms of the transactions contemplated by the Transaction Documents
in the form required by the 1934 Act and attaching all the material Transaction
Documents (including, without limitation, this Agreement (and all schedules to
this Agreement) and the form of Warrants) (including all attachments, the
Initial 8-K Filing). From and after the issuance of the Press Release,
the Company shall have disclosed all material, non-public information (if any)
delivered to any of the Buyers by the Company or any of its Subsidiaries, or any
of their respective officers, directors, employees or agents in connection with
the transactions contemplated by the Transaction Documents. The Company shall,
on or before 8:30 a.m., New York time, on the first (1st) Business
Day after any Major Buyer delivers an Additional Closing Notice to the Company,
file a Current Report on Form 8-K (each, an Additional 8-K Filing, and
together with the Initial 8-K Filing, the 8-K Filings) reasonably
acceptable to the Buyers, disclosing that a Major Buyer (without disclosing the
identity of such Major Buyer in the body of such Additional 8-K Filing) has
elected to deliver an Additional Closing Notice and attaching such Additional
Closing Notice and all material Transaction Documents with respect to such
Additional Closing (to the extent not previously included in a filing with the
SEC). From and after the filing of each Additional 8-K Filing, the Company shall
have disclosed all material, non-public information (if any) provided to such
Buyers by the Company or any of its Subsidiaries or any of their respective
officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. The Company shall not, and the
Company shall cause each of its Subsidiaries and each of its and their
respective officers, directors, employees and agents, not to, provide any Buyer
with any material, non-public information regarding the Company or any of its
Subsidiaries from and after the issuance of the Press Release without the
express prior written consent of such Buyer. In the event of a breach of any of
the foregoing covenants or any of the covenants contained in Section 4(n) by the
Company, any of its Subsidiaries, or any of its or their respective officers,
directors, employees and agents (as determined in the reasonable good faith
judgment of such Buyer), in addition to any other remedy provided herein or in
the Transaction Documents, such Buyer shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of such material, non-public information without the prior approval by the
Company, any of its Subsidiaries, or any of its or their respective officers,
directors, employees or agents. No Buyer shall have any liability to the
Company, any of its Subsidiaries, or any of its or their respective officers,
directors, employees, stockholders or agents, for any such disclosure. Subject
to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, the Company shall be
entitled, without the prior approval of any Buyer, to make any press release or
other public disclosure with respect to such transactions (A) in substantial
conformity with the 8-K Filings and contemporaneously therewith and (B) as is
required by applicable law and regulations (provided that in the case of clause
(A) each Buyer shall be consulted by the Company in connection with any such
press release or other public disclosure prior to its release). Without the
prior written consent of the applicable Buyer, the Company shall not (and shall
cause each of its Subsidiaries and affiliates to not) disclose the name of such
Buyer in any filing (other than the 8-K Filings), announcement, release or
otherwise. Notwithstanding anything contained in this Agreement to the contrary
and without implication that the contrary would otherwise be true, the Company
expressly acknowledges and agrees that no Buyer has had, and no Buyer shall have
(unless expressly agreed to by a particular Buyer after the date hereof in a
written definitive and binding agreement executed by the Company and such
particular Buyer (it being understood and agreed that no Buyer may bind any
other Buyer with respect thereto)), any duty of confidentiality with respect to,
or a duty not to trade on the basis of, any information regarding the Company or
any of its Subsidiaries.
26
(j)
Additional Issuance of Securities. The Company agrees that for the period
commencing on the date hereof and ending on the date immediately following the
sixty (60) Trading Day anniversary of the Initial Closing Date (provided that
such period shall be extended by the number of Trading Days during such period
and any extension thereof contemplated by this proviso on which the Registration
Statement is not effective or any prospectus contained therein is not available
for use) (the Restricted Period), neither the Company nor any of
its Subsidiaries shall directly or indirectly issue, offer, sell, grant any
option or right to purchase, or otherwise dispose of (or announce any issuance,
offer, sale, grant of any option or right to purchase or other disposition of)
any equity security or any equity-linked or related security (including, without
limitation, any equity security (as that term is defined under Rule 405
promulgated under the 1933 Act), any Convertible Securities, any preferred stock
or any purchase rights) (any such issuance, offer, sale, grant, disposition or
announcement (whether occurring during the Restricted Period or at any time
thereafter) is referred to as a Subsequent Placement). Notwithstanding
the foregoing, this Section 4(j) shall not apply in respect of the issuance of
(i) shares of Common Stock or standard options to purchase Common Stock to
directors, officers, employees or consultants of the Company or any of its
Subsidiaries in their capacity as such pursuant to an Approved Share Plan (as
defined below) (it being expressly understood and agreed that lawyers, law
firms, accountants, accounting firms and other similar professional advisors and
professional advisory firms are not consultants), provided that (A) all such
issuances (taking into account the shares of Common Stock issuable upon exercise
of such options) after the date hereof pursuant to this clause (i) do not, in
the aggregate, exceed more than 750,000 shares of Common Stock (adjusted for
stock splits, stock combinations and other similar transactions) and (B) the
exercise price of any such options is not lowered, none of such options are
amended to increase the number of shares issuable thereunder and none of the
terms or conditions of any such options are otherwise materially changed in any
manner that adversely affects any of the Buyers; (ii) shares of Common Stock
issued upon the conversion or exercise of Convertible Securities (other than
standard options to purchase Common Stock issued pursuant to an Approved Share
Plan that are covered by clause (i) above) issued prior to the date hereof,
provided that the conversion price of any such Convertible Securities (other
than standard options to purchase Common Stock issued pursuant to an Approved
Share Plan that are covered by clause (i) above) is not lowered, none of such
Convertible Securities (other than standard options to purchase Common Stock
issued pursuant to an Approved Share Plan that are covered by clause (i) above)
are amended to increase the number of shares issuable thereunder and none of the
terms or conditions of any such Convertible Securities (other than standard
options to purchase Common Stock issued pursuant to an Approved Share Plan that
are covered by clause (i) above) are otherwise materially changed in any manner
that adversely affects any of the Buyers; (iii) shares of Common Stock issued
pursuant to a bona fide firm commitment underwritten public offering with a
nationally recognized underwriter that generates gross proceeds to the Company
in excess of $25,000,000 (but expressly excluding at-the-market offerings (as
defined in Rule 415(a)(4) under the 1933 Act) and equity lines of credit);
(iv) shares of Common Stock issued in connection with strategic alliances,
strategic mergers and acquisitions and strategic partnerships, provided that (A)
the primary purpose of such issuance is not to raise capital as determined in
good faith by the Buyers, (B) the purchaser or acquirer of such shares of Common
Stock in such issuance solely consists of either (1) the actual participants in
such strategic alliance or strategic partnership, (2) the actual owners of such
assets or securities acquired in such merger or acquisition or (3) the
stockholders, partners or members of the foregoing Persons, (C) the number or
amount (as the case may be) of such shares of Common Stock issued to such Person
by the Company shall not be disproportionate to such Persons actual
participation in such strategic alliance or strategic partnership or ownership
of such assets or securities to be acquired by the Company (as applicable) and
(D) all such issuances of Common Stock after the date hereof pursuant to this
clause (iv) do not, in the aggregate, exceed more than 2,000,000 shares of
Common Stock (adjusted for stock splits, stock combinations and other similar
transactions); (v) standard warrants to purchase Common Stock and the shares of
Common Stock issuable upon exercise of such warrants issued solely to placement
agents solely as compensation for services rendered to the Company in their
capacity as such in connection with a Subsequent Placement, provided that (A)
all such issuances (taking into account the shares of Common Stock issuable upon
exercise of such warrants) after the date hereof pursuant to this clause (i) do
not, in the aggregate, exceed more than 750,000 shares of Common Stock (adjusted
for stock splits, stock combinations and other similar transactions), (B) the
exercise price of any such warrants is not lower than the Exercise Price (as
defined in the Warrants) and (C) the exercise price of any such warrants is not
lowered, none of such warrants are amended to increase the number of shares
issuable thereunder and none of the terms or conditions of any such warrants are
otherwise materially changed in any manner that adversely affects any of the
Buyers; (vi) the Common Shares, (vii) the Warrants and (viii) the Warrant Shares
(each of the foregoing in clauses (i) through (viii), collectively the
Excluded Securities). Approved Share Plan means any employee benefit plan
which has been approved by the board of directors of the Company prior to or
subsequent to the date hereof pursuant to which shares of Common Stock and
standard options to purchase Common Stock may be issued to any employee,
officer, director or consultant for services provided to the Company or any of
its Subsidiaries in their capacity as such. Convertible Securities
means any capital stock or other security of the Company or any of its
Subsidiaries that is at any time and under any circumstances directly or
indirectly convertible into, exercisable or exchangeable for, or which otherwise
entitles the holder thereof to acquire, any capital stock or other security of
the Company (including, without limitation, Common Stock) or any of its
Subsidiaries.
27
(k)
Reservation of Shares. So long as any of the Warrants remain outstanding,
the Company shall take all action necessary to at all times have authorized, and
reserved for the purpose of issuance, no less than 100% of the maximum number of
shares of Common Stock issuable upon exercise of all the Warrants (without
regard to any limitations on the exercise of the Warrants set forth therein).
(l) Conduct
of Business. The business of the Company and its Subsidiaries shall not be
conducted in violation of any law, ordinance or regulation of any governmental
entity, except where such violations would not result, either individually or in
the aggregate, in a Material Adverse Effect.
(m) Variable
Rate Transaction. From the date hereof through the one (1) year anniversary
of the Initial Closing Date, the Company and each Subsidiary shall be prohibited
from effecting or entering into an agreement to effect any Subsequent Placement
involving a Variable Rate Transaction. Variable Rate Transaction means
a transaction in which the Company or any Subsidiary (i) issues or sells any
Convertible Securities either (A) at a conversion, exercise or exchange rate or
other price that is based upon and/or varies with the trading prices of, or
quotations for, the shares of Common Stock at any time after the initial
issuance of such Convertible Securities, or (B) with a conversion, exercise or
exchange price that is subject to being reset at some future date after the
initial issuance of such Convertible Securities or upon the occurrence of
specified or contingent events directly or indirectly related to the business of
the Company or the market for the Common Stock, other than pursuant to a
customary weighted average anti-dilution provision or (ii) enters into any
agreement (including, without limitation, an equity line of credit or an
at-the-market offering) whereby the Company or any Subsidiary may sell
securities at a future determined price (other than standard and customary
preemptive or participation rights). Each Buyer shall be entitled to obtain
injunctive relief against the Company and its Subsidiaries to preclude any such
issuance, which remedy shall be in addition to any right to collect damages.
(n)
Participation Right. From the date hereof through the first anniversary
of the Initial Closing Date, neither the Company nor any of its Subsidiaries
shall, directly or indirectly, effect any Subsequent Placement unless the
Company shall have first complied with this Section 4(n). The Company
acknowledges and agrees that the right set forth in this Section 4(n) is a right
granted by the Company, separately, to each Buyer.
(i) At least three (3) Trading Days prior to any
proposed or intended Subsequent Placement, the Company shall deliver to each
Buyer a written notice of its proposal or intention to effect a Subsequent
Placement (each such notice, a Pre-Notice), which Pre-Notice shall not
contain any information (including, without limitation, material, non-public
information) other than: (A) a statement that the Company proposes or intends to
effect a Subsequent Placement, (B) a statement that the statement in clause (A)
above does not constitute material, non-public information and (iii) a statement
informing such Buyer that it is entitled to receive an Offer Notice (as defined
below) with respect to such Subsequent Placement upon its written request. Upon
the written request of a Buyer within two (2) Trading Days after the Companys
delivery to such Buyer of such Pre-Notice, and only upon a written request by
such Buyer, the Company shall promptly, but no later than one (1) Trading Day
after such request, deliver to such Buyer an irrevocable written notice (the
Offer Notice) of any proposed or intended issuance or sale or exchange
(the Offer) of the securities being offered (the Offered
Securities) in a Subsequent Placement, which Offer Notice shall (1)
identify and describe the Offered Securities, (2) describe the price and other
terms upon which they are to be issued, sold or exchanged, and the number or
amount of the Offered Securities to be issued, sold or exchanged, (3) identify
the Persons (if known) to which or with which the Offered Securities are to be
offered, issued, sold or exchanged and (4) offer to issue and sell to or
exchange with such Buyer in accordance with the terms of the Offer thirty
percent (30%) of the Offered Securities, provided that the number of Offered
Securities which such Buyer shall have the right to subscribe for under this
Section 4(n) shall be (a) based on such Buyers pro rata portion of the
aggregate number of Common Shares purchased hereunder by all Buyers (the
Basic Amount), and (b) with respect to each Buyer that elects to
purchase its Basic Amount, any additional portion of the Offered Securities
attributable to the Basic Amounts of other Buyers as such Buyer shall indicate
it will purchase or acquire should the other Buyers subscribe for less than
their Basic Amounts (the Undersubscription Amount).
28
(ii) To accept an Offer, in whole or in part, such Buyer
must deliver a written notice to the Company prior to the end of the third
(3rd) Business Day after such Buyers receipt of the Offer Notice
(the Offer Period), setting forth the portion of such Buyers Basic
Amount that such Buyer elects to purchase and, if such Buyer shall elect to
purchase all of its Basic Amount, the Undersubscription Amount, if any, that
such Buyer elects to purchase (in either case, the Notice of
Acceptance). If the Basic Amounts subscribed for by all Buyers are less
than the total of all of the Basic Amounts, then such Buyer who has set forth an
Undersubscription Amount in its Notice of Acceptance shall be entitled to
purchase, in addition to the Basic Amounts subscribed for, the Undersubscription
Amount it has subscribed for; provided, however, if the Undersubscription
Amounts subscribed for exceed the difference between the total of all the Basic
Amounts and the Basic Amounts subscribed for (the Available
Undersubscription Amount), such Buyer who has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Basic Amount of such Buyer bears to
the total Basic Amounts of all Buyers that have subscribed for Undersubscription
Amounts, subject to rounding by the Company to the extent it deems reasonably
necessary. Notwithstanding the foregoing, if the Company desires to modify or
amend the terms and conditions of the Offer prior to the expiration of the Offer
Period, the Company may deliver to each Buyer a new Offer Notice and the Offer
Period shall expire on the third (3rd) Business Day after such Buyers receipt
of such new Offer Notice.
(iii) The Company shall have five (5) days from the
expiration of the Offer Period above (A) to offer, issue, sell or exchange all
or any part of such Offered Securities as to which a Notice of Acceptance has
not been given by a Buyer (the Refused Securities) pursuant to a
definitive agreement(s) (the Subsequent Placement Agreement), but only
to the offerees described in the Offer Notice (if so described therein) and only
upon terms and conditions (including, without limitation, unit prices and
interest rates) that are not more favorable to the acquiring Person or Persons
or less favorable to the Company than those set forth in the Offer Notice and
(B) to publicly announce (1) the execution of such Subsequent Placement
Agreement, and (2) either (a) the consummation of the transactions contemplated
by such Subsequent Placement Agreement or (b) the termination of such Subsequent
Placement Agreement, which shall be filed with the SEC on a Current Report on
Form 8-K with such Subsequent Placement Agreement and any documents contemplated
therein filed as exhibits thereto.
29
(iv) In the event the Company shall propose to sell
less than all the Refused Securities (any such sale to be in the manner and on
the terms specified in Section 4(n)(iii) above), then such Buyer may, at its
sole option and in its sole discretion, reduce the number or amount of the
Offered Securities specified in its Notice of Acceptance to an amount that shall
be not less than the number or amount of the Offered Securities that such Buyer
elected to purchase pursuant to Section 4(n)(ii) above multiplied by a fraction,
(A) the numerator of which shall be the number or amount of Offered Securities
the Company actually proposes to issue, sell or exchange (including Offered
Securities to be issued or sold to Buyers pursuant to this Section 4(n) prior to
such reduction) and (B) the denominator of which shall be the original amount of
the Offered Securities. In the event that any Buyer so elects to reduce the
number or amount of Offered Securities specified in its Notice of Acceptance,
the Company may not issue, sell or exchange more than the reduced number or
amount of the Offered Securities unless and until such securities have again
been offered to the Buyers in accordance with Section 4(n)(i) above.
(v) Upon the closing of the issuance, sale or exchange
of all or less than all of the Refused Securities, such Buyer shall acquire from
the Company, and the Company shall issue to such Buyer, the number or amount of
Offered Securities specified in its Notice of Acceptance. The purchase by such
Buyer of any Offered Securities is subject in all cases to the preparation,
execution and delivery by the Company and such Buyer of a separate purchase
agreement relating to such Offered Securities reasonably satisfactory in form
and substance to such Buyer and its counsel.
(vi) Any Offered Securities not acquired by a Buyer or
other Persons in accordance with this Section 4(n) may not be issued, sold or
exchanged until they are again offered to such Buyer under the procedures
specified in this Agreement.
(vii) The Company and each Buyer agree that if any
Buyer elects to participate in the Offer, neither the Subsequent Placement
Agreement with respect to such Offer nor any other transaction documents related
thereto (collectively, the Subsequent Placement Documents) shall
include any term or provision whereby such Buyer shall be required to agree to
any restrictions on trading as to any securities of the Company or be required
to consent to any amendment to or termination of, or grant any waiver, release
or the like under or in connection with, any agreement previously entered into
with the Company or any instrument received from the Company.
30
(viii)
Notwithstanding anything to the contrary in this Section 4(n) and unless
otherwise agreed to by such Buyer, the Company shall either confirm in writing
to such Buyer that the transaction with respect to the Subsequent Placement has
been abandoned or shall publicly disclose its intention to issue the Offered
Securities, in either case in such a manner such that such Buyer will not be in
possession of any material, non-public information, by the fifth
(5th) Business Day following delivery of the Offer Notice. If by such
fifth (5th) Business Day, no public disclosure regarding a
transaction with respect to the Offered Securities has been made, and no notice
regarding the abandonment of such transaction has been received by such Buyer,
such transaction shall be deemed to have been abandoned and such Buyer shall not
be in possession of any material, non-public information with respect to the
Company or any of its Subsidiaries. Should the Company decide to pursue such
transaction with respect to the Offered Securities, the Company shall provide
such Buyer with another Offer Notice in accordance with, and subject to, the
terms of this Section 4(n) and such Buyer will again have the right of
participation set forth in this Section 4(n). The Company shall not be permitted
to deliver more than one Offer Notice to such Buyer in any sixty (60) day
period, except as expressly contemplated by the last sentence of Section
4(n)(ii).
(ix) The
restrictions contained in this Section 4(n) shall not apply in connection with
the issuance of any Excluded Securities. The Company shall not circumvent the
provisions of this Section 4(n) by providing terms or conditions to one Buyer
that are not provided to all.
(o)
Passive Foreign Investment Company. The Company shall conduct its
business in such a manner as will ensure that the Company will not be deemed to
constitute a passive foreign investment company within the meaning of Section
1297 of the U.S. Internal Revenue Code of 1986, as amended.
(p)
Exercise Procedures. The form of Notice of Exercise included in each of
the Warrants set forth the totality of the procedures required of the Buyers in
order to exercise the Warrants. No additional legal opinion, other information
or instructions shall be required of the Buyers to exercise their Warrants. The
Company shall honor exercises of the Warrants and shall deliver the Warrant
Shares in accordance with the terms, conditions and time periods set forth in
the Warrants.
(q)
Closing Documents. On or prior to fourteen (14) calendar days after each
Closing Date, the Company agrees to deliver, or cause to be delivered, to each
Buyer and Greenberg Traurig, LLP executed copies of the Transaction Documents,
Securities and other documents required to be delivered to any party pursuant to
Section 6 hereof with respect to such Closing.
5. |
REGISTER; TRANSFER AGENT INSTRUCTIONS;
LEGEND. |
(a)
Register. The Company shall maintain at its principal executive offices
(or such other office or agency of the Company as it may designate by notice to
each holder of Securities), a register for the Common Shares and the Warrants in
which the Company shall record the name and address of the Person in whose name
the Common Shares and the Warrants have been issued (including the name
and address of each transferee), the number of Common Shares held by such Person
and the number of Warrant Shares issuable upon exercise of the Warrants held by
such Person. The Company shall keep the register open and available at all times
during business hours for inspection of any Buyer or its legal representatives.
31
(b)
Transfer Agent Instructions. The Company shall issue irrevocable
instructions to the Transfer Agent in the form previously provided to the
Company (the Irrevocable Transfer Agent Instructions) to issue
certificates or credit shares to the applicable balance accounts at DTC,
registered in the name of each Buyer or its respective nominee(s), for the
Common Shares and the Warrant Shares in such amounts as specified from time to
time by each Buyer to the Company upon delivery of the Common Shares or the
exercise of the Warrants (as the case may be). The Company represents and
warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 5(b) will be given by the Company to
the Transfer Agent with respect to the Securities, and that the Securities shall
otherwise be freely transferable on the books and records of the Company. If a
Buyer effects a sale, assignment or transfer of the Securities, the Company
shall permit the transfer and shall promptly instruct the Transfer Agent to
issue one or more certificates or credit shares to the applicable balance
accounts at DTC in such name and in such denominations as specified by such
Buyer to effect such sale, transfer or assignment. The Company acknowledges that
a breach by it of its obligations hereunder will cause irreparable harm to each
Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach
of its obligations under this Section 5(b) will be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions of this
Section 5(b), that each Buyer shall be entitled, in addition to all other
available remedies, to an order and/or injunction restraining any breach and
requiring immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being required. Any fees
(with respect to the Transfer Agent, counsel to the Company or otherwise)
associated with the issuance of such opinion shall be borne by the Company.
(c)
Legends. Certificates and any other instruments evidencing the Securities
shall not bear any restrictive or other legend.
6. |
ADDITIONAL CLOSING DELIVERIES OF THE
COMPANY. |
(a)
Deliveries. The Company shall deliver to each Buyer participating in the
applicable Closing on such applicable Closing Date each of the following:
(i) The opinion of Pryor Cashman LLP, the Companys
counsel, dated as of such Closing Date, in the form previously provided to the
Company.
(ii) A copy of the Irrevocable Transfer Agent
Instructions, in the form previously provided to the Company, that have been
delivered to and acknowledged in writing by the Transfer Agent.
(iii) A certificate evidencing the formation and good
standing of the Company and each of its Subsidiaries in each such entitys
jurisdiction of formation issued by the Secretary of State (or comparable
office) of such jurisdiction of formation as of a date within ten (10) days of
such Closing Date.
(iv) A certificate evidencing the Companys
qualification as a foreign corporation and good standing issued by the Secretary
of State (or comparable office) of each jurisdiction in which the Company
conducts business and is required to so qualify, as of a date within ten (10)
days of such Closing Date.
32
(v) A certified copy of the Certificate of Incorporation
as certified by the Secretary of State of the Companys jurisdiction of
formation within ten (10) days of such Closing Date.
(vi) A certificate, in the form previously provided to
the Company, executed by an officer of the Company and dated as of such Closing
Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the
Companys board of directors in a form reasonably acceptable to such Buyer, (ii)
the Certificate of Incorporation and (iii) the Bylaws, each as in effect at such
Closing.
(vii) A letter from the Transfer Agent certifying the
number of shares of Common Stock outstanding on such Closing Date immediately
prior to such Closing.
(viii) A letter on the letterhead of the Company, duly
executed by the Chief Executive Officer of the Company, setting forth the wire
amounts of each Buyer participating in such Closing and the wire transfer
instructions of the Company.
(ix) Such other documents, instruments or
certificates relating to the transactions contemplated by this Agreement as such
Buyer or its counsel may reasonably request.
In the event that the Initial Closing
shall not have occurred with respect to a Buyer within five (5) days after the
date hereof, then such Buyer shall have the right to terminate its obligations
under this Agreement with respect to itself at any time on or after the close of
business on such date without liability of such Buyer to any other party;
provided, however, (a) the right to terminate this Agreement under this Section
7 shall not be available to such Buyer if the failure of the transactions
contemplated by this Agreement to have been consummated by such date is the
result of such Buyers breach of this Agreement and (b) the abandonment of the
sale and purchase of the Common Shares and the Warrants shall be applicable only
to such Buyer providing such written notice, provided further that no such
termination shall affect any obligation of the Company under this Agreement to
reimburse such Buyer for the expenses described in Section 4(g) above. Nothing
contained in this Section 7 shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this
Agreement or the other Transaction Documents or to impair the right of any party
to compel specific performance by any other party of its obligations under this
Agreement or the other Transaction Documents.
(a)
Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
other Transaction Documents shall be governed by the internal laws of the State
of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdiction other than the
State of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or under any
of the other Transaction Documents or in connection herewith or therewith or
with any transaction contemplated hereby or thereby or discussed herein or
therein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
Nothing contained herein shall be deemed or operate to preclude any Buyer from
bringing suit or taking other legal action against the Company in any other
jurisdiction to collect on the Companys obligations to such Buyer or to enforce
a judgment or other court ruling in favor of such Buyer. The Company hereby
appoints CT Corporation System, with offices at 111 Eighth Avenue, New York, New
York 10011, as its agent for service of process in New York. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
33
(b)
Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. In the event that any signature is delivered by
facsimile transmission or by an e-mail which contains a portable document format
(.pdf) file of an executed signature page, such signature page shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature page
were an original thereof.
(c)
Headings; Gender. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement. Unless the context clearly indicates otherwise, each pronoun herein
shall be deemed to include the masculine, feminine, neuter, singular and plural
forms thereof. The terms including, includes, include and words of like
import shall be construed broadly as if followed by the words without
limitation. The terms herein, hereunder, hereof and words of like import
refer to this entire Agreement instead of just the provision in which they are
found.
(d)
Severability. If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or
unenforceable shall be deemed amended to apply to the broadest extent that it
would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions of this
Agreement so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter
hereof and the prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the respective
expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties.
The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of
which comes as close as possible to that of the prohibited, invalid or
unenforceable provision(s).
34
(e) Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and
the schedules and exhibits attached hereto and thereto and the instruments
referenced herein and therein supersede all other prior oral or written
agreements between the Buyers, the Company, their affiliates and Persons acting
on their behalf solely with respect to the matters contained herein and therein,
and this Agreement, the other Transaction Documents, the schedules and exhibits
attached hereto and thereto and the instruments referenced herein and therein
contain the entire understanding of the parties solely with respect to the
matters covered herein and therein; provided, however, nothing contained in this
Agreement or any other Transaction Document shall (or shall be deemed to) (i)
have any effect on any agreements any Buyer has entered into with the Company or
any of its Subsidiaries prior to the date hereof with respect to any prior
investment made by such Buyer in the Company or (ii) waive, alter, modify or
amend in any respect any obligations of the Company or any of its Subsidiaries,
or any rights of or benefits to any Buyer or any other Person, in any agreement
entered into prior to the date hereof between or among the Company and/or any of
its Subsidiaries and any Buyer and all such agreements shall continue in full
force and effect. Except as specifically set forth herein or therein, neither
the Company nor any Buyer makes any representation, warranty, covenant or
undertaking with respect to such matters. For clarification purposes, the
Recitals are part of this Agreement. No provision of this Agreement may be
amended other than by an instrument in writing signed by the Company and each of
the Buyers. No waiver shall be effective unless it is in writing and signed by
an authorized representative of the waiving party. No consideration shall be
offered or paid to any Person to amend or consent to a waiver or modification of
any provision of any of the Transaction Documents unless the same consideration
also is offered to all of the parties to the Transaction Documents, all holders
of Common Shares or all holders of the Warrants (as the case may be). The
Company has not, directly or indirectly, made any agreements with any Buyers
relating to the terms or conditions of the transactions contemplated by the
Transaction Documents except as set forth in the Transaction Documents. Without
limiting the foregoing, the Company confirms that, except as set forth in this
Agreement, no Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company, any Subsidiary or otherwise.
As a material inducement for each Buyer to enter into this Agreement, the
Company expressly acknowledges and agrees that (A) no due diligence or other
investigation or inquiry conducted by a Buyer, any of its advisors or any of its
representatives shall affect such Buyers right to rely on, or shall modify or
qualify in any manner or be an exception to any of, the Companys
representations and warranties contained in this Agreement or any other
Transaction Document, (B) nothing contained in the Registration Statement, the
Prospectus or the Prospectus Supplement shall affect such Buyers right to rely
on, or shall modify or qualify in any manner or be an exception to any of, the
Companys representations and warranties contained in this Agreement or any
other Transaction Document and (C) unless a provision of this Agreement or any
other Transaction Document is expressly preceded by the phrase except as
disclosed in the SEC Documents, nothing contained in any of the SEC Documents
shall affect such Buyers right to rely on, or shall modify or qualify in any
manner or be an exception to any of, the Companys representations and
warranties contained in this Agreement or any other Transaction Document.
35
(f)
Notices. Any notices, consents, waivers or other communications required
or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one (1) Business Day after deposit with an overnight
courier service with next day delivery specified, in each case, properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to the Company:
Kandi Technologies Group, Inc.
Jinhua City Industrial Zone
Jinhua, Zhejiang Province
Peoples
Republic of China
Post Code 321016
Telephone: (86-0579) 82239851
Facsimile: (86-0579) 82239855
Attention: Chief Executive Officer
With a copy (for informational
purposes only) to:
Pryor Cashman LLP
7 Times Square
New York, NY 10036-6569
Telephone: (212) 326-0199
Facsimile: (212)
798-6366
Attention: Elizabeth F. Chen, Esq.
If to the Transfer Agent:
Corporate Stock Transfer
3200
Cherry Creek Dr. South
Suite 430
Denver, CO 80209
Facsimile: (303)
282-5800
Attention: Carylyn Bell
If to a Buyer, to its address and facsimile number set forth on
the Schedule of Buyers, with copies to such Buyers representatives as set forth
on the Schedule of Buyers,
with a copy (for informational
purposes only) to:
Greenberg Traurig, LLP
MetLife
Building
200 Park Avenue
New York, NY 10166
Telephone: (212)
801-9200
Facsimile: (212) 805-9222
Attention: Michael A. Adelstein, Esq.
or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change, provided that Greenberg Traurig, LLP shall only be provided copies
of notices sent to the lead Buyer. Written confirmation of receipt (A) given by
the recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the senders facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
36
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns,
including, as contemplated below, any assignee of any of the Securities. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of each of the Buyers, including, without
limitation, by way of a Fundamental Transaction (as defined in the Warrants)
(unless the Company is in compliance with the applicable provisions governing
Fundamental Transactions set forth in the Warrants). A Buyer may assign some or
all of its rights hereunder in connection with any transfer of any of its
Securities without the consent of the Company, in which event such assignee
shall be deemed to be a Buyer hereunder with respect to such assigned rights.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person, other than the Indemnitees referred to in Section 8(k).
(i)
Survival. The representations, warranties, agreements and covenants shall
survive the Closings. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.
(j) Further
Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(k)
Indemnification.
(i) In consideration of each Buyers execution and
delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Companys other obligations under the Transaction
Documents, the Company shall defend, protect, indemnify and hold harmless each
Buyer and each holder of any Securities and all of their stockholders, partners,
members, officers, directors, employees and direct or indirect investors and any
of the foregoing Persons agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by
this Agreement) (collectively, the Indemnitees) from and against any
and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys fees
and disbursements (the Indemnified Liabilities), incurred by any
Indemnitee as a result of, or arising out of, or relating to (A) any
misrepresentation or breach of any representation or warranty made by the
Company in any of the Transaction Documents, (B) any breach of any covenant,
agreement or obligation of the Company contained in any of the Transaction
Documents or (C) any cause of action, suit or claim brought or made against such
Indemnitee by a third party (including for these purposes a derivative action
brought on behalf of the Company) and arising out of or resulting from (1) the
execution, delivery, performance or enforcement of any of the Transaction
Documents, (2) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the issuance of the Securities, (3)
any disclosure properly made by such Buyer pursuant to Section 4(i), or (4) the
status of such Buyer or holder of the Securities as an investor in the Company
pursuant to the transactions contemplated by the Transaction Documents. To the
extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
37
(ii) Promptly after receipt by an Indemnitee under this
Section 8(k) of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified
Liability, such Indemnitee shall, if a claim in respect thereof is to be made
against the Company under this Section 8(k), deliver to the Company a written
notice of the commencement thereof, and the Company shall have the right to
participate in, and, to the extent the Company so desires, to assume control of
the defense thereof with counsel mutually satisfactory to the Company and the
Indemnitee; provided, however, that an Indemnitee shall have the right to retain
its own counsel with the fees and expenses of such counsel to be paid by the
Company if: (A) the Company has agreed in writing to pay such fees and expenses;
(B) the Company shall have failed promptly to assume the defense of such
Indemnified Liability and to employ counsel reasonably satisfactory to such
Indemnitee in any such Indemnified Liability; or (C) the named parties to any
such Indemnified Liability (including any impleaded parties) include both such
Indemnitee and the Company, and such Indemnitee shall have been advised by
counsel that a conflict of interest is likely to exist if the same counsel were
to represent such Indemnitee and the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the
expense of the Company, then the Company shall not have the right to assume the
defense thereof and such counsel shall be at the expense of the Company),
provided further, that in the case of clause (C) above the Company shall not be
responsible for the reasonable fees and expenses of more than one (1) separate
legal counsel for the Indemnitees. The Indemnitee shall reasonably cooperate
with the Company in connection with any negotiation or defense of any such
action or Indemnified Liability by the Company and shall furnish to the Company
all information reasonably available to the Indemnitee which relates to such
action or Indemnified Liability. The Company shall keep the Indemnitee
reasonably apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. The Company shall not be liable
for any settlement of any action, claim or proceeding effected without its prior
written consent, provided, however, that the Company shall not unreasonably
withhold, delay or condition its consent. The Company shall not, without the
prior written consent of the Indemnitee, consent to entry of any judgment or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnitee of a release from all liability in respect to such Indemnified
Liability or litigation, and such settlement shall not include any admission as
to fault on the part of the Indemnitee. Following indemnification as provided
for hereunder, the Company shall be subrogated to all rights of the Indemnitee
with respect to all third parties, firms or corporations relating to the matter
for which indemnification has been made. The failure to deliver written notice
to the Company within a reasonable time of the commencement of any such action
shall not relieve the Company of any liability to the Indemnitee under this
Section 8(k), except to the extent that the Company is materially and adversely
prejudiced in its ability to defend such action.
38
(iii)
The indemnification required by this Section 8(k) shall
be made by periodic payments of the amount thereof during the course of the
investigation or defense, within ten (10) days after bills are received or
Indemnified Liabilities are incurred.
(iv) The indemnity agreement contained herein shall be
in addition to (A) any cause of action or similar right of the Indemnitee
against the Company or others, and (B) any liabilities the Company may be
subject to pursuant to the law.
(l)
Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. No specific
representation or warranty shall limit the generality or applicability of a more
general representation or warranty. Each and every reference to share prices,
shares of Common Stock and any other numbers in this Agreement that relate to
the Common Stock shall be automatically adjusted for stock splits, stock
dividends, stock combinations and other similar transactions that occur with
respect to the Common Stock after the date of this Agreement.
(m)
Remedies. Each Buyer and each holder of any Securities shall have all
rights and remedies set forth in the Transaction Documents and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any Person having any rights under any provision of this Agreement shall be
entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. Furthermore, the
Company recognizes that in the event that it fails to perform, observe, or
discharge any or all of its obligations under the Transaction Documents, any
remedy at law may prove to be inadequate relief to the Buyers. The Company
therefore agrees that the Buyers shall be entitled to seek specific performance
and/or temporary, preliminary and permanent injunctive or other equitable relief
from any court of competent jurisdiction in any such case without the necessity
of proving actual damages and without posting a bond or other security.
39
(n)
Withdrawal Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option under a
Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Buyer may rescind or
withdraw, in its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.
(o) Payment
Set Aside; Currency. To the extent that the Company makes a payment or
payments to any Buyer hereunder or pursuant to any of the other Transaction
Documents or any of the Buyers enforce or exercise their rights hereunder or
thereunder, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a trustee,
receiver or any other Person under any law (including, without limitation, any
bankruptcy law, foreign, state or federal law, common law or equitable cause of
action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred. Until the Warrants are no longer outstanding, the
Company shall not effect any stock combination, reverse stock split or other
similar transaction (or make any public announcement or disclosure with respect
to any of the foregoing) without the prior written consent of each of the
Buyers, such consent not to be unreasonably withheld, conditioned or delayed.
Unless otherwise expressly indicated, all dollar amounts referred to in this
Agreement and the other Transaction Documents are in United States Dollars
(U.S. Dollars), and all amounts owing under this Agreement and all
other Transaction Documents shall be paid in U.S. Dollars. All amounts
denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of
calculation. Exchange Rate means, in relation to any amount of
currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S.
Dollar exchange rate as published in the Wall Street Journal on the relevant
date of calculation.
(p)
Independent Nature of Buyers Obligations and Rights. The obligations of
each Buyer under the Transaction Documents are several and not joint with the
obligations of any other Buyer, and no Buyer shall be responsible in any way for
the performance of the obligations of any other Buyer under any Transaction
Document. Nothing contained herein or in any other Transaction Document, and no
action taken by any Buyer pursuant hereto or thereto, shall be deemed to
constitute the Buyers as, and the Company acknowledges that the Buyers do not so
constitute, a partnership, an association, a joint venture or any other kind of
group or entity, or create a presumption that the Buyers are in any way acting
in concert or as a group or entity with respect to such obligations or the
transactions contemplated by the Transaction Documents or any matters, and the
Company acknowledges that the Buyers are not acting in concert or as a group,
and the Company shall not assert any such claim, with respect to such
obligations or the transactions contemplated by the Transaction Documents. The
decision of each Buyer to purchase Securities pursuant to the Transaction
Documents has been made by such Buyer independently of any other Buyer. Each
Buyer acknowledges that no other Buyer has acted as agent for such Buyer in
connection with such Buyer making its investment hereunder and that no other
Buyer will be acting as agent of such Buyer in connection with monitoring such
Buyers investment in the Securities or enforcing its rights under the
Transaction Documents. The Company and each Buyer confirms that each Buyer has
independently participated with the Company in the negotiation of the
transaction contemplated hereby with the advice of its own counsel and advisors.
Each Buyer shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement or out
of any other Transaction Documents, and it shall not be necessary for any other
Buyer to be joined as an additional party in any proceeding for such purpose.
The use of a single agreement to effectuate the purchase and sale of the
Securities contemplated hereby was solely in the control of the Company, not the
action or decision of any Buyer, and was done solely for the convenience of the
Company and not because it was required or requested to do so by any Buyer. It
is expressly understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the Company and a
Buyer, solely, and not between the Company and the Buyers collectively and not
between and among the Buyers.
40
(q)
Judgment Currency.
(i) If for the purpose of obtaining or enforcing
judgment against the Company in any court in any jurisdiction it becomes
necessary to convert into any other currency (such other currency being
hereinafter in this Section 8(q) referred to as the Judgment Currency)
an amount due in U.S. Dollars under this Agreement or any other Transaction
Document, the conversion shall be made at the Exchange Rate prevailing on the
Trading Day immediately preceding: (A) the date actual payment of the amount
due, in the case of any proceeding in the courts of New York or in the courts of
any other jurisdiction that will give effect to such conversion being made on
such date or (B) the date on which the foreign court determines, in the case of
any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 8(q)(i) being hereinafter
referred to as the Judgment Conversion Date).
(ii) If in the case of any proceeding in the court
of any jurisdiction referred to in Section 8(q)(i) above, there is a change in
the Exchange Rate prevailing between the Judgment Conversion Date and the date
of actual payment of the amount due, the applicable party shall pay such
adjusted amount as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the Exchange Rate prevailing on the date of
payment, will produce the amount of U.S. Dollars which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
order at the Exchange Rate prevailing on the Judgment Conversion Date.
(iii) Any amount due from the Company under this
provision shall be due as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of this Agreement
or any other Transaction Document.
41
IN WITNESS
WHEREOF, Buyer and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above.
COMPANY: |
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KANDI TECHNOLOGIES GROUP, INC. |
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By:
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Name: Hu
Xiaoming |
Title:
Chief Executive Officer |
IN WITNESS
WHEREOF, Buyer and the Company have caused their respective signature page
to this Agreement to be duly executed as of the date first written above.
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(*) Subject to adjustment for stock
splits, stock dividends, recapitalizations and similar events.
Exhibit B
Form of Additional Closing Notice
TO BE EXECUTED BY A MAJOR BUYER TO ELECT TO
EFFECT AN
ADDITIONAL CLOSING
KANDI TECHNOLOGIES GROUP, INC.
The undersigned hereby exercises its
right pursuant to Section 1(b)(ii) of that certain Securities Purchase
Agreement, dated August__, 2014, by and among Kandi Technologies Group, Inc., a
Delaware corporation (the Company) and the investors party thereto (the
Securities Purchase Agreement) to effect an Additional Closing (as
defined in the Securities Purchase Agreement) as described below. Capitalized
terms not defined herein shall have the meaning as set forth in the Securities
Purchase Agreement.
1.
Additional Closing Notice Date:
_________________
2. Additional Closing
Date: _________________**
** Insert Third (3rd) Trading Day after the
Additional Closing Notice Date
3. Securities
to be issued:
(a)
_________ Additional Common Shares; and
(b)
an Additional Warrant to purchase up to
_______Additional Warrant Shares.
4.
Additional Purchase Price. The undersigned shall pay the Additional
Purchase Price in the sum of $___________________to the Company on or prior to
the Additional Closing Date in accordance with the terms of the Securities
Purchase Agreement.
5. Delivery of
Securities. The Company shall deliver the Additional Common Shares and
Additional Warrant described above to the undersigned, or its designee or agent
as specified below:
The certificate with respect to
the Additional Warrant should be delivered to the following name and to the
following address:
The Additional Common Shares should be
delivered by Deposit/Withdrawal at Custodian as follows:
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Schedule 4 (d)
The Company may use proceeds to pay for professional service
fees and expenses in connection with litigation matters.
August 11, 2014
Mr. Xiaoming Hu |
Chairman & Chief Executive Officer |
Kandi Technologies Group, Inc. |
Jinhua City Industrial Zone |
Jinhua, Zhejiang Province, China, 321016
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Re: |
Exclusive Placement Agent Agreement
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Dear Mr. Hu:
The purpose of this letter
agreement (this Engagement Letter or this Agreement) is to set
forth the terms and conditions pursuant to which FT Global Capital, Inc.
(FTGC or the Placement Agent), shall serve as the Exclusive
Placement Agent for Kandi Technologies Group, Inc.(the Company), on a
best efforts basis, in connection with the proposed placement (each, a
Placement) of registered securities (the Securities) of the
Company, which may include shares (the Shares) of the Companys common
stock (the Common Stock).
This Agreement shall become
effective upon the date it is signed by the Company (the Effective
Date). The terms of such Placement(s) and the Securities shall be mutually
agreed upon by the Company and the investors (each, an Investor and
collectively, the Investors) and nothing herein enables the Placement
Agent to bind the Company or any Investor. This Agreement and the documents
executed and delivered by the Company and the Investors in connection with the
Placement(s) shall be collectively referred to herein as the Transaction
Documents. The date of each of the closings of the Placement(s) shall be
referred to herein as the Closing Date. The Company expressly
acknowledges and agrees that the Placement Agents obligations hereunder are on
a reasonable best efforts basis only and that the execution of this Agreement
does not constitute a commitment by the Placement Agent to purchase or to sell
any Securities and does not ensure the successful placement of any Securities or
any portion thereof. The identities of the investors to which the Placement
Agent introduces the Company shall be proprietary information of the Placement
Agent and shall not be divulged to third parties by the Company, nor used by the
Company outside the scope of the Placement Agents engagement as described
herein, other than as required by applicable law.
SECTION
1. COMPENSATION AND OTHER FEES.
(A) As
compensation for the Placement Agents services hereunder, the Company shall pay
to the Placement Agent a cash placement fee upon each Closing, in an amount
equal to five percent (5%) of the aggregate offering price of the total amount
of capital received by the Company from the sale of its Securities to Investors introduced to the
Company by the Placement Agent during the term of this Agreement (the
Placement Agent Fee). Notwithstanding anything to the contrary in this
Agreement, the compensation provided for in this Agreement shall be subject to
such reduction as may be necessary for the compensation to comply with Financial
Industry Regulatory Authority (FINRA) Rule 5110.
1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328
770-350-2698 (Office), 770-551-8184 (Fax)
(B)
Upon each Closing, the Company shall also grant Placement Agent or its designees
at the Closing warrants (the Placement Agents Warrants) to purchase
that number of Shares equal to five percent (5%) of the aggregate number of
Shares placed in the Placement (or underlying any convertible Securities sold in
the Placement) to the Investors, excluding any Shares issuable upon exercise of
any warrants issued in the Placement. The Placement Agent Warrants shall include
customary terms, such as anti-dilution protection to the extent permitted by
FINRA Rule 5110 and registration rights. The exercise price for Placement Agent
Warrants will be 120% of Purchase Price of the Placement and the Placement Agent
will not have cashless exercise rights under such warrants; provided, that, if
at the time of any exercise of the Placement Agent Warrants the Company does not
have an effective registration statement for the issuance of the warrant shares
or the resale of the warrant shares, then the Placement Agent may exercise such
warrants on a cashless basis.
(C) The
Placement Agent shall be entitled to a Placement Agent Fee, calculated in the
manner provided in Section 1(A), with respect to any public or private offering
or other financing or capital-raising transaction of any kind (Tail
Financing) to the extent that such financing or capital is provided to the
Company by investors whom the Placement Agent had introduced to the Company
during the Term, as defined below, if such Tail Financing is consummated at any
time within the 12-month period following the termination of this Agreement (the
Tail Period). Notwithstanding anything to the contrary in this
Agreement, the compensation provided for in this Agreement shall be subject to
such reduction as may be necessary for the compensation to comply with FINRA
Rule 5110.
SECTION 2. COMPANY
REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and
agrees with, the Placement Agent on the date hereof and on each date on which
any Securities are offered that:
(A) The
Company has filed with the Securities and Exchange Commission (the
Commission) a registration statement on Form S-3 (Registration File No.
333-196938) under the Securities Act of 1933, as amended (the Securities
Act), which became effective on August 6, 2014, to be used for the
registration under the Securities Act of any Securities offered at any time
pursuant to this Agreement (as well as any Placement Agent Warrants and the
Shares underlying such warrants) to the extent such Placement is being made
pursuant to such registration statement, as opposed to privately placed. At the
time of such filing and on the date hereof, the Company met the requirements of
Form S-3 under the Securities Act. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies with said Rule. The Company will file with the Commission pursuant to
Rule 424(b) under the Securities Act, and the rules and regulations (the
Rules and Regulations) of the Commission promulgated thereunder, a
supplement to the form of prospectus included in such registration statement
relating to the placement of any publicly offered Securities and the plan of
distribution thereof and has advised or will advise the Placement Agent of all
further information (financial and other) with respect to the Company required to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the Registration Statement; such
prospectus in the form in which it appears in the Registration Statement is
hereinafter called the Base Prospectus; and the supplemented form of
prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter
called the Prospectus Supplement. Any reference in this Agreement to
the Registration Statement, the Base Prospectus or the Prospectus Supplement
shall be deemed to refer to and include the documents incorporated by reference
therein (the Incorporated Documents) pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
Exchange Act), on or before the date of this Agreement, or the issue
date of the Base Prospectus or the Prospectus Supplement, as the case may be;
and any reference in this Agreement to the terms amend, amendment or
supplement with respect to the Registration Statement, the Base Prospectus or
the Prospectus Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this Agreement, or the
issue date of the Base Prospectus or the Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference. All references in this
Agreement to financial statements and schedules and other information that is
contained, included, described, referenced, set forth or stated in
the Registration Statement, the Base Prospectus or the Prospectus Supplement
(and all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that is or is
deemed to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. No stop order
suspending the effectiveness of the Registration Statement or the use of the
Base Prospectus or the Prospectus Supplement has been issued, and no proceeding
for any such purpose is pending or has been initiated or, to the Company's
knowledge, is threatened by the Commission. For purposes of this Agreement,
free writing prospectus has the meaning set forth in Rule 405 under the
Securities Act and the Time of Sale Prospectus means the preliminary
prospectus, if any, together with the free writing prospectuses, if any, used in
connection with the Placement, including any documents incorporated by reference
therein.
(B) The
Registration Statement (and any further documents to be filed with the
Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment
thereto, at the time it became effective, complied in all material respects with
the Securities Act and the Exchange Act and the applicable Rules and Regulations
and did not and, as amended or supplemented, if applicable, will not, contain
any 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. The Base Prospectus, the Time of Sale Prospectus, if any, and the
Prospectus Supplement, each as of its respective date, comply in all material
respects with the Securities Act and the Exchange Act and the applicable Rules
and Regulations. Each of the Base Prospectus, the Time of Sale Prospectus, if
any, and the Prospectus Supplement, as amended or supplemented, did not and will
not contain as of the date thereof any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Incorporated Documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the applicable
Rules and Regulations, and none of such documents, when they were filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to
Incorporated Documents incorporated by reference in the Base Prospectus or
Prospectus Supplement), in light of the circumstances under which they
were made not misleading; and any further documents so filed and incorporated by
reference in the Base Prospectus, the Time of Sale Prospectus, if any, or
Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
applicable Rules and Regulations, as applicable, and will not contain any 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. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent,
individually or in the aggregate, a fundamental change in the information set
forth therein is required to be filed with the Commission. There are no
documents required to be filed with the Commission in connection with the
transaction contemplated hereby that (i) have not been filed as required
pursuant to the Securities Act or (ii) will not be filed within the requisite
time period. There are no contracts or other documents required to be described
in the Base Prospectus, the Time of Sale Prospectus, if any, or Prospectus
Supplement, or to be filed as exhibits or schedules to the Registration
Statement, that have not been described or filed as required.
(C) The
Company is currently eligible to use free writing prospectuses in connection
with the Placement pursuant to Rules 164 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used by the
Company complies or will comply in all material respects with the requirements
of the Securities Act and the applicable rules and regulations of the Commission
thereunder. The Company will not, without the prior consent of the Placement
Agent, prepare, use or refer to, any free writing prospectus.
(D)
The Company will as promptly as practicable deliver to the Placement Agent
complete conformed copies of the Registration Statement and of each consent and
certificate of experts, as applicable, filed as a part thereof, and conformed
copies of the Registration Statement (without exhibits), the Base Prospectus,
the Time of Sale Prospectus, if any, and the Prospectus Supplement, as amended
or supplemented, in such quantities and at such places as the Placement Agent
reasonably request. Neither the Company nor any of its directors and officers
has distributed and none of them will distribute, prior to the Closing Date, any
offering material in connection with the offering and sale of the Securities
other than, in the case of any Securities offered pursuant to the Registration
Statement, the Base Prospectus, the Time of Sale Prospectus, if any, the
Prospectus Supplement, the Registration Statement, copies of the documents
incorporated by reference therein and any other materials permitted by the
Securities Act.
(E) There
are no affiliations with any FINRA member firm among the Companys officers,
directors or, to the knowledge of the Company, any five percent (5%) or greater
stockholder of the Company.
(F) The
Placement Agent shall have received on each Closing Date a written opinion of
counsel for the Company, dated the Closing Date and addressed to the Placement
Agent in form and substance satisfactory to the Placement Agent, which shall
include, without limitation, opinions related to (i) the corporate existence of
the Company and power to operate its business; (ii) the corporate power and authority of the Company to execute all
agreements and perform its obligations related in the Placement; (iii) the
ability of the Company to enter into all agreements and perform its obligations
related to the Placement without contravening or violating (or causing the
triggering of any anti-dilution or similar provisions in) its charter documents,
any other agreements or any applicable law, regulation or rule; (iv) that any
Securities (and any Common Stock underlying such Securities) will be duly
authorized, fully paid, validly issued and non-assessable, as applicable; (v)
that no approval, consent, order, filing or notice is required to complete the
Placement and for the Company to perform its obligations in the Placement; (vi)
to the extent applicable, the effectiveness of the Registration Statement and
that all filings required by the Securities Act of 1933, as amended, have been
made; (vii) the listing of all Common Stock included in or underlying the
Securities on any national exchange on which the Companys Common Stock is
listed; and (viii) the Companys status as an investment company as defined in
the Investment Company Act of 1940, as amended. The Placement Agent shall also
have received on each Closing Date a negative assurance letter from counsel for
the Company, dated the Closing Date and addressed to the Placement Agent in form
and substance satisfactory to the Placement Agent.
(G) The
Placement Agent shall be entitled to rely upon any and all representations and
warranties of the Company included in the Transaction Documents or other
purchase agreements entered into by the Company and the Investors in connection
with any Placement, subject to the qualifications and limitations therein,
including, but not limited to, any disclosure set forth on an applicable
schedule.
SECTION
3. REPRESENTATIONS AND WARRANTIES OF
PLACEMENT AGENT. The Placement Agent represents and warrants to the Company
that: (i) it will comply with all applicable federal laws regarding trading in
securities of the Company, (ii) it will not disclose any non-public material
information of the Company without the prior written consent of the Company
during the Term for a period of one (1) year from the termination date of this
Agreement, and (iii) that it is a registered broker-dealer in good standing with
the relevant regulatory agencies.
SECTION
4. ENGAGEMENT TERM & SURVIVAL.
The term of this Agreement shall be for a period of the earlier of six months
commencing on the Effective Date or the completion of the Placement (the
Term). In the event of the termination of this Agreement, the Placement
Agents compensation due under this Agreement will be payable in full and the
compensation payable under Section 1(A) will continue for the twelve (12) month
period commencing with such termination. The provisions of Sections 1, 2, 3, 4,
5, 6, 7, 9, 10 and 11 of this Agreement and Appendix A shall survive this
Agreements expiration or termination.
SECTION 5. PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice
rendered by the Placement Agent in connection with this engagement is for the
confidential use of the Company only in its evaluation of the Placement and,
except as otherwise required by law, the Company will not disclose or otherwise
refer to the advice or information in any manner without prior written consent
of the Placement Agent.
SECTION 6. NO
FIDUCIARY RELATIONSHIP; THIRD PARTY BENEFICIARIES. This Agreement does not
create, and shall not be construed as creating rights enforceable by any person
or entity that is not a party hereto, except those entitled hereto by virtue of
the indemnification provisions hereof. The Company acknowledges and agrees that
the Placement Agent is not and shall not be construed as a fiduciary of the
Company and that the Placement Agent shall not have any duties or liabilities to the equity holders or the
creditors of the Company or to any other person by virtue of this Agreement or
the retention of the Placement Agent hereunder, all of which are hereby
expressly waived.
SECTION 7.
INDEMNIFICATION. The parties agree to the terms of the Placement Agents
standard indemnification agreement, which is attached hereto as Appendix A and
incorporated herein by reference.
SECTION
8. ANNOUNCEMENTS. The Company
grants to the Placement Agent the right to place customary announcement(s) of
the Placement in certain newspapers and to mail announcement(s) to persons and
firms selected by Placement Agent, at the Placement Agents expense, subject to
the Companys prior approval, which shall not be unreasonably withheld.
SECTION
9. GOVERNING LAW. This Agreement
will be governed by, and construed in accordance with, the laws of the State of
Georgia applicable to agreements made and to be performed entirely in such
State. This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
permitted assigns. Any right to trial by jury with respect to any dispute
arising under this Agreement or any transaction or conduct in connection
herewith is waived. Any dispute arising under this Agreement may be brought into
the courts of the State of Georgia located in Fulton County or into the Federal
Court located in Atlanta, Georgia and, by execution and delivery of this
Agreement, the Company hereby accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of aforesaid courts. Each party
hereto hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by delivering a copy
thereof via overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If either party shall commence
an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorneys' fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.
SECTION 10. ENTIRE
AGREEMENT/MISC. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof. If any provision of
this Agreement is determined to be invalid or unenforceable in any respect, such
determination will not affect such provision in any other respect or any other
provision of this Agreement, which will remain in full force and effect. This
Agreement may not be amended or otherwise modified or waived except by an
instrument in writing signed by each of the Placement Agent and the Company. The
representations, warranties, agreements and covenants contained herein shall
survive the closing of the Placement and delivery and/or exercise of the
Securities, as applicable. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or a .pdf format file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and
effect as if such facsimile or .pdf signature page were an original thereof.
SECTION 11. NOTICES. Any and all notices
or other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number specified on the signature pages
attached hereto prior to 6:30 p.m. (Atlanta, Georgia time) on a business day,
(b) the next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number on the
signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (Atlanta, Georgia time) on any business day, (c) the business day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as set forth on the signature pages hereto.
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning an executed copy of
this Agreement to FTGC.
FT GLOBAL CAPITAL, INC. |
|
|
By: __/s/ Patrick J. Ko___________________ |
Name: Patrick J. Ko
|
Title: President |
|
Address for notice: |
FT Global Capital, Inc. |
1200 Abernathy Road, Suite 1700 |
Atlanta, GA, 30328 |
Fax: 770-551-8184 |
Accepted and Agreed to as of the date first
written above: |
|
|
Kandi Technologies Group, Inc. |
|
By: __/s/ Xiaoming Hu____________________ |
Name: Xiaoming Hu |
Title: Chairman
& Chief Executive Officer |
|
Address for notice: |
|
Jinhua City Industrial Zone |
Jinhua, Zhejiang Province, China, 321016 |
Fax:86-579-8223-9856 |
APPENDIX A - - INDEMNIFICATION PROVISIONS
(A) The
Company agrees to indemnify and hold harmless the Placement Agent and its
affiliates and their respective officers, directors, employees, agents, counsel,
advisers and consultants, and any persons controlling the Placement Agent or any
of its affiliates within the meaning of Section 15 of the Securities Act of 1933
or Section 20 of the Securities Exchange Act of 1934 (the Placement Agent and
each such other person or entity being referred to herein as an Indemnified
Person), from and against all claims, liabilities, losses or damages (or
actions in respect thereof) or other expenses (and further agrees to advance all
expenses) which (A) are related to or arise out of (i) actions taken or omitted
to be taken (including any untrue statements made or any statements omitted to
be made) by the Company or its respective affiliates in connection with this
Agreement, the Placement or which affect the Placement or (ii) actions taken or
omitted to be taken by an Indemnified Person with the consent or in conformity
with the actions or omissions of the Company or their respective affiliates in
connection with this Agreement, the Placement or which affect the Placement or
(iii) any investigation, litigation, or inquiry by a regulatory or
self-regulatory agency or authority involving the Company or any transaction
arising under any agreements between the Company and the Placement Agent or (B)
are otherwise related to or arise out of the Placement Agents activities on
behalf of the Company or its respective affiliates pursuant to this Agreement or
(C) in any way involving or alleged to involve the Company, any Placement or any
Securities. The Company will not be responsible, however, for any losses,
claims, damages, liabilities or expenses pursuant to clause (B) of the preceding
sentence which are finally judicially determined to have resulted solely from
such Indemnified Persons gross negligence or willful misconduct. In addition,
the Company agrees to advance (and in the absence of advancement required
hereunder) to promptly reimburse each Indemnified Person for all reasonable
out-of-pocket expenses (including fees and expenses of counsel) as they are
incurred by such Indemnified Person in connection with investigating, preparing,
conducting or defending any such action or claim, whether or not in connection
with litigation in which any Indemnified Person is a named party, or in
connection with enforcing the rights of such Indemnified Person under this
Agreement, including the costs of any claims asserted by an Indemnified Person
against any indispensable party or by way of a counterclaim in any litigation
within the scope of this provision. The Company agrees to advance such expenses
incurred by an Indemnified Person pursuant to which indemnity may be sought
hereunder within thirty (30) days after receipt by the Company of a statement
requesting such advances from time to time, whether prior to or after final
disposition of any proceeding. Such advances shall be unsecured and interest
free and without regard to the Indemnified Persons ultimate entitlement to
indemnification under the other provisions of this Agreement. Indemnified
Persons shall be entitled to continue to receive advancement of expenses
pursuant to this section unless and until the matter of an Indemnified Persons
entitlement to indemnification hereunder has been finally adjudicated by court
order or judgment from which no further right of appeal exists. Each Indemnified
Person undertakes to repay such amounts advanced only if and to the extent that,
it ultimately is determined that the Indemnified Person is not entitled to be
indemnified by the Company under the provisions of this Agreement.
1200 Abernathy Road, Suite 1700, Atlanta, GA, 30328
770-350-2698 (Office), 770-551-8184 (Fax)
(B)
Promptly after receipt by the Placement Agent of notice of any claim or the
commencement of any action or proceeding with respect to which the Placement
Agent is entitled to indemnity hereunder, the Placement Agent will notify the
Company in writing of such claim or of the commencement of such action or
proceeding, and the Company will assume the defense of such action or proceeding
and will employ counsel reasonably satisfactory to the Placement Agent and will
pay the reasonable fees and expenses of such counsel. Notwithstanding the
preceding sentence, the Placement Agent will be entitled to employ counsel
separate from counsel for the Company and from any other party in such action if
counsel for the Placement Agent determines that to do so would be in the best
interests of the Placement Agent. In such event, the reasonable fees and
disbursements of no more than one such separate counsel will be paid by the
Company. The Company will have the exclusive right to settle the claim or
proceeding at its sole expense provided that the Company obtains a full and
unconditional release of any claims against the Placement Agent and the
Indemnified Persons from all liability on claims that are the subject matter of
such proceeding and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of Placement Agent or any
Indemnified Person.
(C) The
Company and the Placement Agent and any Indemnified Persons agree to notify each
other promptly of the assertion of any claim or the commencement of any action
or proceeding relating to a transaction contemplated by this engagement letter.
(D) If
for any reason the foregoing indemnity is unavailable to the Placement Agent or
insufficient to hold the Placement Agent harmless, then the Company shall
contribute to the amount paid or payable by the Placement Agent as a result of
such losses, claims, damages or liabilities in such proportion as is appropriate
to reflect not only the relative benefits received by the Company on the one
hand and the Placement Agent on the other, but also the relative fault of the
Company on the one hand and the Placement Agent on the other that resulted in
such losses, claims, damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in respect of losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees and expenses reasonably incurred in defending any
litigation, proceeding or other action or claim. Notwithstanding the provisions
hereof, the Placement Agents share of the liability hereunder shall not be in
excess of the amount of fees actually received by Placement Agent under this
engagement letter (excluding any amounts received as reimbursement of expenses
incurred by Placement Agent).
(E)
These indemnification provisions shall remain in full force and effect whether
or not the transaction contemplated by this Agreement is completed and shall
survive the termination of this Agreement, and shall be in addition to any
liability that the Company might otherwise have to any indemnified party under
this engagement letter or otherwise.
Kandi Technologies Announces Entry into Agreement for Registered Direct Placement of $71 Million of Common Stock and Warrants
JINHUA, China, August 29, 2014 -- Kandi Technologies Group, Inc. (the “Company” or “Kandi”) (NASDAQ GS: KNDI), today announced that it has entered into a securities purchase agreement with certain institutional investors for
a registered direct placement of $71 million of common stock at a price of $17.20 per share. The Company will issue a total of 4,127,908 shares of common stock to the institutional investors. As part of the transaction, the Company will also
issue to the investors warrants (“Warrants”) for the purchase of up to 743,024 shares of common stock at an exercise price of $21.50 per share, which Warrants will have a term of 17 months from the date of issuance. Any investor that
invests more than $30 million in the initial offering of shares and Warrants will have an option to purchase its pro rata share of up to $30 million of additional shares for a period commencing after the initial closing date and ending on
November 17, 2014, and investors exercising such option will also receive Warrants for the purchase of an aggregate of up to 313,954 shares of our common stock. Assuming that the investors exercise all of their options, the total gross proceeds of
the offering would be $101 million.
The net proceeds from this offering will be used for general working corporate purposes. The completion of the placement is expected to occur on or about September 4, 2014, subject to the satisfaction of customary closing conditions.
FT Global Capital, Inc. acted as the exclusive placement agent for the transaction.
These securities are being offered through a prospectus supplement pursuant to the Company’s effective shelf registration statement and base prospectus contained therein. A shelf registration statement relating to these securities has been
filed with and declared effective by the Securities and Exchange Commission (the “SEC”). A prospectus supplement related to the offering will be filed with the SEC. This press release does not constitute an offer to sell or the
solicitation of an offer to buy, and these securities cannot be sold in any state in which this offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state. Any offer will be made
only by means of a prospectus, including a prospectus supplement, forming a part of the effective registration statement.
For further details of this transaction, please see the Form 8-K to be filed with the SEC.
About Kandi Technologies Group, Inc.
Kandi Technologies Group, Inc. (NASDAQ GS: KNDI), headquartered in Jinhua, Zhejiang Province, is engaged in the research and development, manufacturing and sales of various vehicle products. Kandi has established itself as one of the world’s
largest manufacturers of pure EV products, Go-Kart vehicles, and tricycle and utility vehicles (UTVs), among others. More information can be viewed at its corporate website is
http://www.kandivehicle.com. Kandi routinely posts important
information on its website.
Safe Harbor Statement
This press release contains certain statements that may include "forward-looking statements." All statements other than statements of historical fact included herein are "forward-looking statements." These forward-looking statements are often
identified by the use of forward-looking terminology such as "believes," "expects" or similar expressions, involving known and unknown risks and uncertainties. Although the Company believes that the expectations reflected in these forward-looking
statements are reasonable, they do involve assumptions, risks and uncertainties, and these expectations may prove to be incorrect. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this press
release. The Company's actual results could differ materially from those anticipated in these forward-looking statements as a result of a variety of factors, including the risk factors discussed in the Company's periodic reports that are filed with
the Securities and Exchange Commission and available on the SEC's website (http://www.sec.gov). All forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by these risk
factors. Other than as required under the securities laws, the Company does not assume a duty to update these forward-looking statements.
Contact:
Kandi Technologies Group, Inc.
Ms. Kewa Luo
Phone: 1-212-551-3610
Email: IR@kandigroup.com
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