UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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) January 15, 2015
HOMELAND RESOURCES LTD.
(Exact
name of registrant as specified in its charter)
NEVADA |
000-55282 |
26-0841675 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
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3395 S. Jones Boulevard, #169, Las
Vegas, Nevada |
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89146 |
(Address of principal executive offices) |
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(Zip Code) |
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Registrant's telephone number, including area code |
(877) 503-4299 |
Not Applicable
(Former
name or former address, if changed since last report)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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
Telesecurity
Sciences, Inc.
Summary
On January 15, 2015, Homeland Resources Ltd. (the “Company”) entered into a Letter Agreement (the “Letter Agreement”) with Telesecurity Sciences, Inc. (“TSS”), under which Homeland agreed to purchase $7,500,000 of TSS’s common stock and was granted a warrant to purchase an additional $7,500,000 of TSS common stock. Upon completion of its stock purchases, including exercise of the warrants, Homeland will own 50% of the capital stock of TSS. In addition, upon completion of the stock purchases, it is the intention of the parties that TSS and Homeland enter into a business combination transaction which would result in a combination of the two companies with Homeland’s shareholders owning 50% of the capital stock of the combined companies. TSS is a Delaware corporation, based in Nevada, engaged in the development of advanced imaging systems and devices for both the medical and security fields.
Letter Agreement
Under the terms of the Letter Agreement which is scheduled to close on February 15, 2015, the Company will purchase 743,373 shares of the common stock of TSS (representing approximately 25% of TSS’s outstanding common stock) and a warrant (the “A” Warrant) to purchase an additional 743,373 shares of common stock of TSS (approximately 25%). Of the shares to be acquired, 99,116 shares will be fully paid with the payment of $1,000,000 in cash at the closing and 644,257 (the “Partially Paid Shares”) will be partially paid for at closing. The Company will pay for the Partially Paid Shares by making 20 payments of $300,000 per month commencing April 15, 2015 and a final payment of $500,000 on December 15, 2016. A proportionate amount of the Partially Paid Shares will become fully paid with each payment.
The “A” Warrant will be exercisable until January 15, 2017. Exercise of the “A” Warrant will be subject to the purchase price for the Partially Paid Shares being fully paid. The Company will exercise the “A” Warrant by paying $2,000,000 in cash to TSS, together with a $5,500,000 secured promissory note (the “Promissory Note”) bearing interest at 5% per annum and payable in 11 monthly installments of $500,000 plus accrued interest.
At the Closing, the Company will also acquire an additional warrant (the “B” Warrant) entitling it to purchase a number of shares of common stock of TSS equal to 50% of the amount of shares issued by TSS to third parties prior to a business combination with the Company as a result of the exercise of stock options or warrants of TSS (other than the warrants issued to the Company). The purpose of the “B” Warrant is to protect the Company from dilution accruing from the exercises of outstanding options and warrants of TSS prior to a business combination between the parties. The exercise price of the “B” Warrant will be equal to 50% of the aggregate exercise price paid to TSS by third parties exercising options or warrants. Exercise of the “B” Warrant will be subject to the purchase price for the Partially Paid Shares being fully paid, and the “A” Warrant being exercised and the Promissory Note being fully paid.
Business Combination
Upon the purchase price for the Partially Paid Shares being fully paid, the “A” Warrant being exercised and the Promissory Note being fully paid, the Company and TSS have agreed to use the best efforts to enter into and cause their respective shareholders to approve a business combination between the parties (the “Business Combination”) on terms (without taking into account shares issuable on exercise of options and warrants outstanding) that would result in an entity (the “Resulting Entity”) being owned 50% by the Company’s shareholders and 50% by TSS shareholders. During the first year following the Business Combination, TSS shall be entitled to nominate three of the Resulting Entity’s five directors and Douglas P. Boyd, the Chief Executive Officer of TSS would be appointed to as the Chairman of the Board and Chief Executive Officer of the Resulting Entity.
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Exclusivity to Homeland
As long as the Company is in good standing under the Letter Agreement, TSS will not, without consent of the Company, solicit or entertain equity financing offers from any other person and shall refer such financing offers to the Company.
Security and Voting Provisions
Under the terms of the Letter Agreement, TSS will have a first priority security interest in the Partially Paid Shares. As the Partially Paid Shares are fully paid, they will cease to be subject to the security interest.
Upon exercise of the “A” Warrant by the Company, the Company will enter into a Pledge Agreement granting TSS a security interest in the shares issued on exercise of the “A” Warrant where the exercise price is paid with the Promissory Note. As the Promissory Note is paid, a proportionate amount of the shares will be released from the Pledge Agreement.
The parties have agreed that prior to completion of the Business Combination, the voting rights of Homeland in TSS will be as follows:
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a) |
Homeland will grant a proxy to TSS to vote any Partially Paid Shares until they are fully paid; and |
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b) |
Notwithstanding its total share ownership, Homeland shall not vote shares it holds in excess of 25% of TSS’ outstanding common stock and will grant a proxy to TSS to vote such shares. |
The foregoing is a summary only of the Letter Agreement. The complete agreement and supplementary documents are attached as an exhibit to this Current Report on Form 8-K.
The Company’s ability to complete the transactions contemplated by the Letter Agreement is subject to the Company obtaining financing. There is no assurance that such financing will be available to the Company or that the purchase of shares pursuant to the Letter Agreement will close, the Company will pay in full the Partially Paid Shares, the Company will exercise the “A” or “B” Warrants, or if the Company exercises the “A” Warrant, it will complete payment of the warrant exercise price, including thereafter payment of the Promissory Note. In the event the Company fails to perform any of its agreements with TSS, including its obligations to purchase and pay for TSS shares, TSS may terminate any future rights of the Company under the Letter Agreement and pursue its legal remedies to recover the unpaid purchase price of any Partially Paid Shares.
In addition, even if the Company acquires 50% of the outstanding common stock of TSS, there is no assurance that it will complete the Business Combination, which is subject to customary terms and conditions including corporate and shareholder approvals and completion of regulatory filings.
About TSS
TSS develops advanced imaging solutions for medical and security imaging devices and systems. TSS is developing unique medical imaging devices for image guided cancer therapy, low-cost, low-dose CT for office screening procedures, and for non-invasive imaging of the heart and coronary arteries. TSS airport security products include automated threat recognition algorithms for cargo, whole body and checkpoint imaging systems including liquid detection as well as electronic unpacking software for CT baggage scanners. The TSS product line includes a common workstation that exploits the emerging DICOS standard for seamless connection to all security imaging systems.
Proceeds from the sale of shares to the Company will be used by TSS for the initial phases of development of medical applications of its products, including its proposed TumorTrak and Low Dose CT Scanners. In addition, TSS may use the proceeds from the sale of the shares for the development of security or other applications with the Company’s approval.
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TSS Management and Board of Directors
TSS management and members of its Board of Directors (the “Board”) have distinguished and successful backgrounds in scanning technology. They have been involved in founding a number of successful imaging businesses, including Invision, Imatron, Analogic, Neurologica, Hinnovation, Terarecon, Techniscan, BSD Medical, and Photo Diagnostic Systems.
TSS’s Chief Executive Officer is Douglas P. Boyd, Ph.D. Dr. Boyd is an internationally recognized CT expert, in both medical and security fields. He pioneered the development of fan-beam CT technology, Xenon detector arrays and electron beam tomography (EBT) scanners. He was a founder, Chairman and CEO of Imatron, the producer of EBT scanners, which was acquired by General Electric Healthcare. He was also a founder of InVision Technologies, a developer of airport explosive detection systems (EDS) which was also acquired by General Electric.
Other key executives of TSS include Dr. Samuel M. Song, Dr. Hui Hu and Brian Chard. Dr. Song has over twenty-five years of industrial and academic research and development experience in imaging and image processing systems. Dr. Hu, Chairman of the Board, has over twenty years of experience in the medical imaging industry. Mr.
Chard, a Qualified Accountant, is the Chief Financial Officer and Secretary of TSS.
In addition to Dr. Boyd and Dr. Hu, the other directors of TSS are:
Bernard M. Gordon M.S. Mr. Gordon is a distinguished businessman and renowned inventor and expert in imaging technology. Mr. Gordon received B.S. and M.S. degrees in Electrical Engineering from the Massachusetts Institute of Technology and has been awarded several honorary degrees in Engineering and Science. He has founded a number of innovative businesses and many have grown into substantial corporations including Neurologica Corporation, which he co-founded and serves as its President, and Analogic Corporation, which he founded and served as its C.E.O. and President. More recently he founded Photo Diagnostic Systems Inc., a leading company in the PET imaging market and a partner with TSS in the development of new CT scanning equipment.
Sean Costelloe. Mr. Costelloe is a U.K. resident. He is principally engaged in owning and managing specialist nursing homes in the U.K. He has been an underwriting member of Lloyds of London since 1984.
Eric S. Galler, Esq. Mr. Geller is the President and a Director of Global Secure Corp., a significant shareholder of TSS. In addition, he is a founder of Novus Applications, a leading provider of integrated web and mobile device applications that serve as personal media channels being used by musicians, athletes, entertainers and other prominent persons to create direct revenues from their digital personae. Mr. Galler is also an attorney, who practices in Washington, D.C.
TSS Products
TSS Medical Imaging Products
TSS has the following medical imaging products under development:
- a unique multi-source X-ray tube based on eBeam technology for real-time tracking of tumor motion during radiation therapy.
- new software and technical approaches that are expected to lead to a new type of low-dose, multi-detector CT scanner that will be at a cost point that permits the use of computerized tomography imaging in the physician’s office as part of routine screening procedures.
- A 2nd generation electron beam CT scanner based on the technology developed for TSS’s Image Guided Radiotherapy product and the Low-cost, low-dose CT scanner product.
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TSS Security Imaging Products
The following security imaging products are currently being offered by TSS:
- a common workstation used by security screeners, supervisors, and other personnel which is designed to work with all imaging security equipment.
- software using conventional CT imaging to provide 3D imaging of bags under review by security screeners, allowing the screener to virtually unpack bags, by virtually removing items from the bag.
- advanced scanner independent automated target recognition software tailored to work with cargo, baggage, and AIT.
- liquid detection software which automatically analyzes liquids that are run through the X-ray system, and provides an accurate categorization of the liquid in the container.
Forward-Looking Statements
The Company’s statements contained in this Current Report on Form 8-K that are not historical facts are forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended. Actual results may differ materially from those included in the forward-looking statements. The Company intends those forward-looking statements to be covered by the safe-harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995, and the Company is including this statement for purposes of complying with those safe-harbor provisions. Forward-looking statements, which are based on certain assumptions and describe future plans, strategies, intentions and expectations, are generally identifiable by use of the words “expect,” “project,” “may,” “will,” “should,” “could,” “would,” “intend,” “plan,” “propose,” “anticipate,” “estimate,” “believe,” “continue,” “predict,” “potential” or the negative of such terms and other comparable terminology. The Company’s ability to predict results or the actual effect of future plans or strategies is inherently uncertain.
ITEM
9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits
The following exhibits are
either provided with this Current Report or are incorporated herein by
reference:
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.
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HOMELAND
RESOURCES LTD. |
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Date:
January 19, 2015 |
By: |
/s/
David St. James |
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David St. James, |
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Secretary and
Treasurer |
Homeland Resources Ltd.
3395 S. Jones Blvd. #169
Las Vegas, NV 89146
January 15, 2015
Telesecurity Sciences, Inc. (the “Company”)
7391 Prairie Falcon
Road, Suite 150B
Las Vegas, NV 89128
Attn: Douglas
P. Boyd, Chairman and Chief Executive Officer
Dear Dr. Boyd:
This letter (this “Letter Agreement”)
sets forth the terms upon which Homeland Resources Ltd., a Nevada corporation (“Homeland”),
proposes to purchase from the Company shares of the Company’ Common Stock,
$0.0001 par value per share, (the “Common Stock”) for an aggregate purchase
price of $7,500,000, to be issued Warrants to purchase additional shares of the
Company’s Common Stock, and to thereafter engage in a Business Combination, as
hereinafter defined, with the Company. All amounts of currency expressed
herein are in United States Dollars.
1.
Purchase and Sale of Shares.
(a)
Sale of Fully Paid Shares. Homeland agrees to purchase and the Company agrees to sell and
issue to Homeland, at the Closing, as hereinafter defined, and subject to the
terms and conditions of this Letter Agreement, 99,116 shares of Common Stock (the
“Fully Paid Shares”) for a purchase price of $1,000,000 (the “Initial
Purchase Price”).
(b)
Sale of Partially Paid Shares. Homeland agrees to purchase and the Company agrees to sell and
issue (subject to the Grant of Security Interest in Section 10 below) to
Homeland, at the Closing, as hereinafter defined, and subject to the terms and
conditions of this Letter Agreement, an aggregate of 644,257 shares of
Partially Paid Common Stock in the amounts, for the purchase prices and the Call
Dates set for the below (the “Partially Paid Shares”). The Partially
Paid Shares are shares to be issued pursuant to Section 156 of the Delaware
General Corporation Law. The Call Date is the first date on which the Company
can call for the payment of the remainder of the purchase price to be paid and
on which such remainder must be paid. The purchase price for each Tranche
shall be paid $1.00 at Closing and the remainder on the Call Date.
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Tranche |
Shares |
Purchase Price |
Call Date |
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#1 |
29,735 |
$300,000 |
April 30, 2015 |
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#2 |
29,735 |
$300,000 |
May 31, 2015 |
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#3 |
29,735 |
$300,000 |
June 30, 2015 |
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#4 |
29,735 |
$300,000 |
July 31, 2015 |
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#5 |
29,735 |
$300,000 |
August 31, 2015 |
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#6 |
29,735 |
$300,000 |
September 30, 2015 |
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#7 |
29,735 |
$300,000 |
October 31, 2015 |
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#8 |
29,735 |
$300,000 |
November 30, 2015 |
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#9 |
29,735 |
$300,000 |
December 31, 2015 |
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#10 |
29,735 |
$300,000 |
January 31, 2016 |
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#11 |
29,735 |
$300,000 |
February 28, 2016 |
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#12 |
29,735 |
$300,000 |
March 31, 2016 |
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#13 |
29,735 |
$300,000 |
April 30, 2016 |
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#14 |
29,735 |
$300,000 |
May 31, 2016 |
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#15 |
29,735 |
$300,000 |
June 30, 2016 |
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#16 |
29,735 |
$300,000 |
July 31, 2016 |
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#17 |
29,735 |
$300,000 |
August 31, 2016 |
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#18 |
29,735 |
$300,000 |
September 30, 2016 |
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#19 |
29,735 |
$300,000 |
October 31, 2016 |
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#20 |
29,734 |
$300,000 |
November 30, 2016 |
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#21 |
49,558 |
$500,000 |
December 15, 2016 |
(c)
Purchase and Sale of Warrants.
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(i) Homeland agrees to purchase and the Company agrees to sell and issue to Homeland at the Closing, and subject to the terms and conditions of this Letter Agreement, a warrant in the form of Exhibit A hereto to purchase 743,373 shares of Common Stock for an aggregate purchase price of $7,500,000 (the “Warrant A”). Warrant A may be exercised on or before January 15, 2017, but only if all 644,257 Partially Paid Shares have been fully paid for by Homeland at the time of exercise of Warrant A. The purchase price for the Warrant A shares shall be paid for by the delivery by Homeland of $2,000,000 in cash upon exercise of Warrant A and by the delivery by Homeland of its Secured Promissory Note in the form of Exhibit B hereto (the “Secured Promissory Note”). The Secured Promissory Note shall bear simple interest at the rate of 5% per annum and shall be payable in 11 monthly installments commencing upon exercise of Warrant A of $500,000 each plus accrued interest. The Warrant A shares shall be secured by a Pledge Agreement in the form of Exhibit C hereto (the “Pledge Agreement”). |
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(ii) Homeland agrees to purchase and the Company agrees to sell and issue to Homeland at the Closing, and subject to the terms and conditions of this Letter Agreement, a warrant in the form of Exhibit D hereto (“Warrant B,” and together with Warrant A, the “Warrants”) to purchase a number of shares of Common Stock equal to ½ of the amount of any shares of Common Stock issued by the Company to persons or entities upon the exercise of stock options or warrants (other than Warrant A and this Warrant B) following the date of this Letter Agreement and prior to the consummation of a Business Combination (the “Third Party Warrant Shares”). Homeland’s exercise price for the Warrant B shares will equal ½ of the aggregate exercise price paid to the Company for all the Third Party Warrant Shares. Warrant B may be exercised immediately prior to a Business Combination, but only if all 644,257 Partially Paid Shares have been fully paid for by Homeland at the time of exercise of Warrant B and only if Warrant A has been exercised and the Warrant A shares have been fully paid for (including the payment in full of the Secured Promissory Note). The shares of Common Stock to be issued upon exercise of Warrant A and Warrant B are referred to herein as the Warrant Shares. The purchase price for the Warrant B shares shall be paid for by the delivery by Homeland of the full exercise price in cash upon exercise of Warrant B. |
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(d)
Grant of Security Interest. The obligations of Homeland to make payments for the Partially
Paid Shares shall be secured by the security interest granted pursuant to the
Grant of Security Interest provided for under Section 10 below.
(e)
Closing; Delivery.
The purchase and sale of the Fully Paid Shares, the Partially Paid Shares and
the Warrants shall take place remotely via the exchange of documents and
signatures, at 11:00 a.m., Pacific Time, on the February 15, 2015 (the “Closing
Date”), or at such other time and place as the Company and Homeland
mutually agree upon, orally or in writing (which time and place is designated
as “the Closing”).
(f)
Closing Deliveries. At the Closing Date the following will be delivered by the
Company and Homeland:
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(i) By the Company. The Company shall deliver to Homeland a certificate representing the Fully Paid Shares and the Warrants. The certificates representing the Partially Paid Shares shall be retained by the Company until the purchase price therefore shall be indefeasibly paid and shall be released and delivered to Homeland as they become fully paid. |
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(ii) By Homeland. Homeland will deliver the Initial Purchase Price by wire transfer of immediately available funds to a bank account designated by the Company. |
2.
Representations and Warranties of the Company. The Company hereby represents and warrants to Homeland that the
following representations are true and complete as of the date hereof.
(a)
Organization, Good Standing, Corporate Power
and Qualification. The Company is a corporation
duly incorporated, validly existing, and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to carry
on its business as presently conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a Material Adverse
Effect. As used in this Letter Agreement “Material Adverse Effect”
means a material adverse effect on the business, assets (including intangible
assets), liabilities, financial condition, property, or results of operations
of a person.
(b)
Capitalization.
The authorized capital of the Company consists of:
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(i) 4,000,000 shares of common stock, par value $0.0001 (the “Common Stock”), of which 906,745 shares are issued and outstanding, and 2,000,000 shares of preferred stock, par value $0.0001, of which (1) 375,000 have been designated |
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“Series A Preferred Stock” (the “Series A Preferred Stock”) with 290,000 shares of said 375,000 shares of Series A Preferred Stock being issued and outstanding as of the Closing, and (2) 375,000 shares have been designated “Series B Preferred Stock” (the “Series B Preferred Stock”) with 290,000 shares of said 375,000 shares of Series B Preferred Stock being issued or outstanding. |
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(ii) The Company has reserved 343,000 shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to its Stock Plan (the “TSS Stock Plan”). Of such reserved shares of Common Stock, no shares have been issued pursuant to restricted stock purchase agreements, options to purchase 252,858 shares have been granted and are currently outstanding, and 90,142 shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the TSS Stock Plan. |
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(iii) The Company has reserved 10,000 shares of Series A Preferred Stock, 10,000 shares of Series B Preferred Stock and 25,000 shares of Common Stock for issuance pursuant to outstanding warrants. |
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(iv) Except as set forth above, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of the Company’s capital stock, or any securities convertible into or exchangeable for shares of the Company’s capital stock. The Company does not have outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. |
(c)
Subsidiaries.
The Company does not currently own or control, directly or indirectly, any
interest in any other corporation, partnership, trust, joint venture, limited
liability company, association, or other business entity. The Company is not a
participant in any joint venture, partnership, or similar arrangement.
(d)
Authorization.
All corporate action required to be taken by the Company’s Board of Directors
and stockholders in order to authorize the Company to enter into this Letter
Agreement, and to issue the Shares at the Respective Closing Dates has been
taken or will be taken prior to the Initial Closing. All action on the part of
the officers of the Company necessary for the execution and delivery of this
Letter Agreement, the performance of all obligations of the Company under this
Letter Agreement to be performed as of the Closing Date, and the issuance and
delivery of the Fully Paid Shares, the Partially Paid Shares, the Warrants and
the Warrant Shares has been taken or will be taken prior to the Closing. This Letter
Agreement when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their respective terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or
other laws of general application relating to or affecting the enforcement of
creditors’ rights generally, or (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies. As used in this Letter Agreement “Transaction Documents”
means this Letter Agreement, the Pledge Agreement and the Warrants.
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(e)
Valid Issuance of Shares. The Fully Paid Shares, when issued, sold and delivered in
accordance with the terms and for the consideration set forth in this Letter
Agreement and the Warrant Shares when the consideration therefore shall have
been paid, will be validly issued fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under this Letter Agreement,
applicable state and federal securities laws and liens or encumbrances created
by or imposed by Homeland. The Partially Paid Shares, when issued, sold and
delivered in accordance with the terms as set forth in this Letter Agreement
will be validly issued and free of restrictions on transfer other than
restrictions on transfer under this Letter Agreement, applicable state and
federal securities laws and liens or encumbrances created by or imposed by
Homeland. When the consideration therefore shall have been fully paid as set
forth in this Letter Agreement, the Partially Paid Shares will be fully paid
and.
(f)
Litigation. To
the Company’s knowledge, there is no claim, action, suit, proceeding,
arbitration, complaint, charge or investigation pending or currently threatened
in writing (i) against the Company or any officer or director of the Company
arising out of their employment or board relationship with the Company; or (ii)
that questions the validity of the Transaction Documents or the right of the
Company to enter into them, or to consummate the transactions contemplated by
the Transaction Documents. Neither the Company nor, to the Company’s
knowledge, any of its officers or directors is a party or is named as subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality (in the case of officers or
directors, such as would affect the Company). As used in this Letter Agreement
“Knowledge,” including the phrase “to the Company’s knowledge,” shall mean the
actual knowledge of Douglas P. Boyd, Ph.D.
(g)
Intellectual Property. The Company owns or possesses or believes it can acquire on
commercially reasonable terms sufficient legal rights to all Company
Intellectual Property (as defined below) without any known conflict with, or
infringement of, the rights of others. To the Company’s knowledge, no product
or service marketed or sold (or proposed to be marketed or sold) by the Company
violates or will violate any license or infringes or will infringe any
intellectual property rights of any other party. The Company has not received
any communications alleging that the Company has violated or, by conducting its
business, would violate any of the patents, trademarks, service marks, trade
names, copyrights, trade secrets, mask works or other proprietary rights or
processes of any other Person. Each employee and consultant has assigned to
the Company all intellectual property rights he or she owns that are, or are
anticipated to be, used in the Company’s business as now conducted and as
presently proposed to be conducted. As used in this Letter Agreement “Company
Intellectual Property” means all patents, patent applications, trademarks,
trademark applications, service marks, trade names, copyrights, trade secrets,
licenses, domain names, mask works, information and proprietary rights and
processes as are necessary to the conduct of the Company’s business as now
conducted and as presently proposed to be conducted.
(h)
Compliance with Other Instruments. The Company is not in violation or default (i) of any provisions
of its Third Restated Certificate or Bylaws, (ii) of any injunction, judgment,
order, writ or decree, (iii) under any note, indenture or mortgage, or (iv)
under any lease, agreement, contract or purchase order to which it is a party
or by which it is bound, or, to its knowledge, of any provision of federal or
state statute, rule or regulation applicable to the Company, the violation of
which would have a Material Adverse Effect. The execution,
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delivery,
performance, and filing of the Transaction Documents and the consummation of
the transactions contemplated by the Transaction Documents will not result in
any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either (i) a default under any such
provision, instrument, judgment, order, writ, decree, contract, agreement,
lease or purchase order, or (ii) an event which results in the creation of any
lien, charge or encumbrance upon any assets of the Company or the suspension,
revocation, forfeiture, or nonrenewal of any material permit or license
applicable to the Company.
(i)
Absence of Liens.
The property and assets that the Company owns are free and clear of all
mortgages, deeds of trust, liens, loans and encumbrances, except for statutory
liens for the payment of current taxes that are not yet delinquent and
encumbrances and liens that arise in the ordinary course of business and do not
materially impair the Company’s ownership or use of such property or assets.
With respect to the property and assets it leases, the Company is in compliance
with such leases and, to its knowledge, holds a valid leasehold interest free
of any liens, claims or encumbrances other than those of the lessors of such
property or assets.
(j)
Financial Statements. The Company has delivered to Homeland its unaudited financial
statements for the three months ended September 30, 2014 (the “Financial
Statements”). The Financial Statements fairly present in all material
respects the financial condition and operating results of the Company as of the
date, and for the period indicated therein, subject to normal year-end audit
adjustments. Except as set forth in the Financial Statements, the Company has
no material liabilities or obligations, contingent or otherwise, other than (i)
liabilities incurred in the ordinary course of business after September 30,
2014, (ii) obligations under contracts and commitments incurred in the ordinary
course of business and (iii) liabilities and obligations of a type or nature
not required under generally accepted accounting principles to be reflected in
the Financial Statements, which, in all such cases, individually and in the
aggregate would not have a Material Adverse Effect.
(k)
Changes. Since September
30, 2014 there has not been:
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(i) any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have not caused, in the aggregate, a Material Adverse Effect; |
|
(ii) any damage, destruction or loss, whether or not covered by insurance, that would have a Material Adverse Effect; |
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(iii) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets; |
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(iv) any sale, assignment or transfer of any Company Intellectual Property; |
- 6 -
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(v) any arrangement or commitment by the Company to do any of the things described in this Section 2(k). |
(l)
Tax Returns and Payments. There are no federal, state, county, local or foreign taxes due
and payable by the Company which have not been timely paid. There are no
accrued and unpaid federal, state, county, local or foreign taxes of the
Company which are due. There have been no examinations or audits of any tax
returns or reports by any applicable federal, state, county, local or foreign
governmental agency. The Company has duly and timely filed all federal, state,
county, local and foreign tax returns required to have been filed by it and
there are in effect no waivers of applicable statutes of limitations with
respect to taxes for any year.
(m)
Permits. The
Company has all franchises, permits, licenses and any similar authority
necessary for the conduct of its business, the lack of which could reasonably
be expected to have a Material Adverse Effect. The Company is not in default
in any material respect under any of such franchises, permits, licenses or
other similar authority.
3.
Representations and Warranties of Homeland.
Homeland hereby represents and warrants to the
Company that the statements in this Section 3 are true and correct as of the
date hereof and will also be true and correct as of the Closing Date and as of each
Call Date.
(a)
Organization and Qualification. Homeland is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and has the requisite
organizational power and authority and any necessary governmental authorization
to own, lease and, to the extent applicable, operate its properties and to
carry on its business as it is now being conducted. Homeland is duly qualified
or licensed to do business, and is in good standing, in each jurisdiction where
the character of the properties owned, operated or leased by it or the nature
of its business makes such qualification, licensing or good standing necessary,
except for such failures to be so qualified, licensed or in good standing that,
individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect.
(b)
Organizational Documents. Homeland has made available to the Company complete and correct
copies of Homeland’s charter and bylaws, as amended to date.
(c)
Capital Structure.
The authorized and issued capital stock of Homeland as of the date hereof is as
set forth in the Homeland SEC Filings (as hereinafter defined). All issued and
outstanding shares of the capital stock of Homeland are duly authorized,
validly issued, fully paid and non-assessable.
(d)
Subsidiaries. Except
as set forth in the Homeland SEC Filings, Homeland does not currently own or
control, directly or indirectly, any interest in any other corporation, partnership,
trust, joint venture, limited liability company, association, or other business
entity and Homeland is not a participant in any joint venture, partnership or
similar arrangement.
- 7 -
(e)
Authority. Homeland
has the requisite power and authority to execute and deliver this Letter
Agreement, and to perform its obligations hereunder. All corporate action
required to be taken by Homeland’s Board of Directors and stockholders in order
to authorize Homeland to enter into this Letter Agreement, and to purchase the
Shares at the Respective Closings has been taken or will be taken prior to the
Initial Closing. All action on the part of the officers of Homeland necessary
for the execution and delivery of this Letter Agreement, the performance of all
obligations of Homeland under this Letter Agreement has been taken. This
Letter Agreement when executed and delivered by Homeland, shall constitute
valid and legally binding obligations of Homeland, enforceable against Homeland
in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of
general application relating to or affecting the enforcement of creditors’
rights generally, or (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
(f)
Compliance with Other Instruments. Homeland is not in violation or default (i) of any provisions of
the Homeland Charter or Homeland Bylaws, (ii) of any instrument, judgment,
order, writ or decree, (iii) under any note, indenture or mortgage, or (iv)
under any lease, agreement, contract or purchase order to which it is a party
or by which it is bound, or, to its knowledge, of any provision of federal or
state statute, rule or regulation applicable to Homeland, the violation of
which would have a Material Adverse Effect. The execution, delivery,
performance, and filing of the Transaction Documents and the consummation of
the transactions contemplated by the Transaction Documents will not result in
any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either (i) a default under any such
provision, instrument, judgment, order, writ, decree, contract, agreement,
lease or purchase order, or (ii) an event which results in the creation of any
lien, charge or encumbrance upon any assets of Homeland or the suspension,
revocation, forfeiture, or nonrenewal of any material permit or license
applicable to Homeland.
(g)
Compliance With Law. Homeland is not or has not been in conflict with, or in default
or violation of any law applicable to Homeland or by which any property or
asset of Homeland or is bound, except in each case for any such conflicts,
defaults or violations that, individually or in the aggregate, have not had and
would not reasonably be expected to have a Material Adverse Effect.
(h)
SEC Filings; Financial Statements.
|
(i) Homeland has filed with, or furnished (on a publicly available basis) to, the SEC all forms, reports, schedules, statements and documents required to be filed or furnished by it under the Securities Act or the Exchange Act, as the case may be, including any amendments or supplements thereto, for the two (2) years preceding the date hereof (collectively, the “Homeland SEC Filings”). Except as disclosed in Homeland’s Form 8-K filed November 20, 2014, each Homeland SEC Filing, as amended or supplemented, if applicable, (i) as of its date, or, if amended or supplemented, as of the date of the most recent amendment or supplement thereto, complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the applicable rules and regulations of the SEC promulgated thereunder and (ii) did not, at the time it was filed (or became effective |
- 8 -
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in the case of registration statements), and, if amended or supplemented, as of the date of the most recent amendment or supplement thereto, 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 made therein, in the light of the circumstances under which they were made, not misleading. |
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(ii) Except as disclosed in Homeland’s Form 8-K filed November 20, 2014, each of the consolidated financial statements contained or incorporated by reference in the Homeland SEC Filings (as amended, supplemented or restated, if applicable), including the related notes and schedules, was prepared (except as indicated in the notes thereto) in accordance with GAAP applied on a consistent basis throughout the periods indicated, and each such consolidated financial statement presented fairly, in all material respects, the consolidated financial position, results of operations, stockholders’ equity and cash flows of Homeland and its consolidated subsidiaries as of the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments). |
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(iii) Since the date of the latest audited financial statements included within the Homeland SEC Filings, except as specifically disclosed in a subsequent Homeland SEC Filing filed prior to the date hereof, there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect. |
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(iv) Homeland’s common stock trades on the OTC Pink marketplace under the symbol HMLA. |
(i)
Absence of Liens.
The property and assets that Homeland owns are free and clear of all mortgages,
deeds of trust, liens, loans and encumbrances, except for statutory liens for
the payment of current taxes that are not yet delinquent and encumbrances and
liens that arise in the ordinary course of business and do not materially
impair Homeland’s ownership or use of such property or assets. With respect to
the property and assets it leases, Homeland is in compliance with such leases
and, to its knowledge, holds a valid leasehold interest free of any liens,
claims or encumbrances other than those of the lessors of such property or
assets.
(j)
Tax Returns and Payments. There are no federal, state, county, local or foreign taxes due
and payable by Homeland which have not been timely paid. There are no accrued
and unpaid federal, state, county, local or foreign taxes of Homeland which are
due. There have been no examinations or audits of any tax returns or reports
by any applicable federal, state, county, local or foreign governmental
agency. There are in effect no waivers of applicable statutes of limitations
with respect to taxes for any year.
(k)
Litigation. There
is no claim, action, suit, proceeding, arbitration, complaint, charge or
investigation pending or, to Homeland’s knowledge, currently threatened in
writing against Homeland or any subsidiary, including without limitation, (i)
against Homeland or any officer or director of the Company arising out of their
employment or board relationship with Homeland; (ii) that questions the
validity of the Transaction Documents or the right of
- 9 -
Homeland to enter into
them, or to consummate the transactions contemplated by the Transaction
Documents. Neither Homeland nor, to Homeland’s knowledge, any of its officers
or directors is a party or is named as subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality (in the case of officers or directors, such as would affect Homeland).
(l)
Brokers. No
broker or finder is entitled to any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Homeland.
4.
Investment Representations of Homeland. Homeland represents and warrants to the Company:
(a)
Homeland has received and is generally familiar
with the Company’s Financial Statements, the Company’s executive personnel and
the medical and security markets for scanning equipment and software in which
the Company operates and proposes to operate.
(b)
Homeland has had an opportunity to review and
ask questions of duly authorized officers or other representatives of the
Company concerning the Company in general; has received any additional
information which Homeland has requested; and desires no further information in
connection with Homeland’s purchase of the Fully Paid Shares, the Partially
Paid Shares, the Warrants and the securities issuable upon exercise of the
Warrants (collectively, the “Securities”).
(c)
Homeland realizes that a purchase of the Securities
represents a speculative investment involving a high degree of risk.
(d)
Homeland can bear the economic risk of an
investment in the Shares for an indefinite period of time, can afford to
sustain a complete loss of such Securities, has no need for liquidity in
connection with such investment, and can afford to hold the Securities
indefinitely.
(e)
Homeland acknowledges and agrees that the
Partially Paid Shares shall be subject to the provisions of Sections 156, 163
and 164 of the Delaware General Corporations Law, copies of which are attached
hereto as Exhibit E.
(f)
Homeland realizes that the Securities have not
been and will not be registered for sale under the U.S. Securities Act of 1933,
as amended and the rules and regulations promulgated thereunder (the “U.S. Securities
Act”) or applicable U.S. State securities laws (the “U.S. State Laws”),
and may sold only in the U.S. following registration under the U.S. Securities
Act and U.S. state laws, or pursuant to an opinion of counsel acceptable to the
Company that such registration is not required.
(g)
Homeland is experienced and knowledgeable in
financial and business matters, and capable of evaluating the merits and risks
of investing in the Securities, and does not need or desire the assistance of a
knowledgeable representative to aid in the evaluation of such risks.
- 10 -
(h)
Homeland has not received, and is not purchasing
any of the Securities as a result of, any general solicitation or advertisement
regarding the offer of the Securities.
(i)
The address set forth on the signature page to
this Letter Agreement is the true and correct address of Homeland’s principal
office.
(j)
No guarantees or warranties have been made to
Homeland by the Company and its agents or employees or any other person,
expressly or by implication, with respect to the profit or return, if any, to
be realized as a result of this investment.
(k)
Homeland has been advised that the Securities
have not been registered under the U.S. Securities Act or the relevant U.S.
State Laws, but are being offered and will be sold in the U.S. pursuant to
exemptions from the U.S. Securities Act and U.S. State Laws, and that the
Company’s reliance upon such exemptions is predicated in part on Homeland’s
representations contained herein. Homeland represents and warrants that the Securities
are being purchased for Homeland’s own account and for long-term investment and
without the intention of reselling or redistributing the Securities. Homeland
acknowledges and agrees that the following (or a substantially similar) legend
will be placed on the Certificate for the Securities:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
(l)
Homeland further represents and agrees that if,
contrary to Homeland’s foregoing intentions, Homeland should later desire to
dispose of or transfer any of the Securities in the U.S. in any manner,
Homeland shall not do so without first obtaining an opinion of counsel
reasonably satisfactory to the Company that such proposed disposition or
transfer may be made lawfully without the registration of such Securities
pursuant to the U.S. Securities Act and applicable U.S. State Laws (it being
expressly understood that the Company shall not have any obligation to register
such Securities).
(m)
Homeland is a legal entity organized under the
laws of Nevada and has mailing addresses in the States of Nevada and New Mexico.
It is not domiciled in any other jurisdiction.
The foregoing representations and
warranties are true and accurate as of the date hereof and shall be true and
correct as of the Closing and each subsequent purchase of Securities, and the
representations, warranties and agreements herein shall survive each such Closing.
5.
Conditions to Each Party’s Obligations. No party is obligated to close the transactions contemplated by
this Letter Agreement unless the following conditions are satisfied on or
before the Closing Date:
- 11 -
(a)
Consents and Approvals. All consents, approvals and permits required to consummate the
transactions provided for in this Letter Agreement must have been obtained
without the imposition of any burdensome conditions.
(b)
Proceedings. No
Order enjoining or prohibiting the consummation of the transactions
contemplated by this Letter Agreement is in effect, and neither party has received
any notice threatening to enjoin or prohibit the consummation of the transactions
contemplated by this Letter Agreement.
6.
Conditions to Homeland’s Obligations. Each and every obligation of Homeland to be performed on each
Respective Closing Date shall be subject to the satisfaction prior to or on
such date of the following express conditions precedent (any or all of which
Homeland may expressly waive):
(a)
Performance of Obligations and Delivery of
Documents. The Company shall have performed all
covenants, agreements, and obligations required of it by this Letter Agreement
and shall have executed and delivered to Homeland all documents required to be
delivered at or prior to the Closing, including this Letter Agreement.
(b)
Proceedings and Instruments Satisfactory. All proceedings, corporate or other, to be taken in connection
with the transactions contemplated by this Letter Agreement, and all documents
incident thereto, shall be reasonably satisfactory in form and substance to
Homeland and the Company shall have made available to Homeland for examination
the originals or true and correct copies of all documents which Homeland may
reasonably.
(c)
No Litigation.
No investigation, suit, action, or other proceeding shall be threatened or
pending before any court or governmental agency that seeks the restraint or
prohibition of, or damages or other relief in connection with, this Letter
Agreement or the consummation of the transactions contemplated by this Letter
Agreement.
(d)
Accuracy of Representations and Warranties. The representations and warranties of the Company in this Letter
Agreement shall be true and correct, in all respects (in the case of any
representation or warranty containing any materiality qualification) or in all
material respects (in the case of any representation or warranty without any
materiality qualification), both when made and on the Closing.
(e)
No Material Adverse Effect. From the date of this Letter Agreement to each Respective Closing
Date there shall not have occurred and there shall not exist on the Respective
Closing Date, any Material Adverse Effect with respect to the Company.
(f)
Closing Deliveries. The Company shall have delivered, or caused to be delivered, to
Homeland at or prior to the Closing such documents, certificates and agreements
as Homeland and its counsel may reasonably require.
(g)
Board Resolutions.
The Company shall have delivered to Homeland resolutions adopted by its Board
of Directors certified by the Company’s secretary authorizing the Company’s
officers to execute and deliver this Letter Agreement and to perform its
obligations hereunder.
- 12 -
(h)
Certificates. The
Company shall have delivered to Homeland a certificate, in form and substance
reasonably satisfactory to Homeland, certifying that the conditions stated in
this Section 6 have been fulfilled, and to the incumbency of the officers of
the Company executing this Letter Agreement on behalf of the Company.
7.
Conditions to The Company’s Obligations. Each and every obligation of the Company to be performed on each
Respective the Closing Date shall be subject to the satisfaction prior to or on
such date of the following express conditions precedent (any or all of which
the Company may expressly waive):
(a)
Performance of Obligations and Delivery of
Documents. Homeland shall have performed all
covenants, agreements, and obligations required of it by this Letter Agreement
and shall have paid the respective purchase prices executed and delivered to
the Company all documents required to be delivered at or prior to the Closing,
including this Letter Agreement.
(b)
Proceedings and Instruments Satisfactory. All proceedings, corporate or other, to be taken in connection
with the transactions contemplated by this Letter Agreement, and all documents
incident thereto, shall be reasonably satisfactory in form and substance to the
Company shall have made available to the Company for examination the originals
or true and correct copies of all documents which the Company may reasonably
request.
(c)
No Litigation.
No investigation, suit, action, or other proceeding shall be threatened or pending
before any court or governmental agency that seeks the restraint or prohibition
of, or damages or other relief in connection with, this Letter Agreement or the
consummation of the transactions contemplated by this Letter Agreement.
(d)
Accuracy of Representations and Warranties. The representations and warranties of Homeland in this Letter
Agreement shall be true and correct, in all respects (in the case of any
representation or warranty containing any materiality qualification), or in all
material respects (in the case of any representation or warranty without any
materiality qualification), both when made and on each Respective Closing.
(e)
No Material Adverse Change. From the date of this Letter Agreement to each Respective Closing
Date there shall not have occurred and there shall not exist on the Respective
Closing Date, any Material Adverse Effect with respect to the Company.
(f)
Closing Deliveries. Homeland shall have delivered, or caused to be delivered, to the
Company such documents, certificates and agreements as the Company and its
counsel may reasonably require.
(g)
Board Resolutions.
Homeland shall have delivered to the Company resolutions adopted by its Board
of Directors certified by Homeland’s secretary authorizing Homeland’s officers
to execute and deliver this Letter Agreement and to perform its obligations
hereunder.
(h)
Certificate.
Homeland shall have delivered to the Company a certificate, in form and
substance reasonably satisfactory to the Company, certifying that the
conditions
- 13 -
stated in this Section 7 have been fulfilled, and to the incumbency
of the officers of Homeland executing this Letter Agreement on behalf of
Homeland.
8.
Covenants of the Company. The Company agrees and covenants with
Homeland as follows:
(a)
Covenant Regarding Use of Proceeds. The proceeds from the sale of the Shares shall be used for the development of medical applications of its products, including but not limited to its proposed TumorTrak, Low Dose CT and EBCT Scanners. Proceeds shall be used in accordance with medical budgets agreed upon by the Company and Homeland which medical budgets shall include reasonable allocations for Company general overhead. The Company may use the proceeds from the sale of the Shares for the development of security or other applications with Homeland’s approval, which approval will not be unreasonably withheld.
(b)
Options, Warrants and Other Securities. Stock Plan. Without Homeland’s approval, which shall not
be unreasonably withheld, the Company shall not increase the number of shares
available for grant pursuant to the Stock Plan.
(c)
Issuance of Shares of Capital Stock and
Warrants to Purchase Capital Stock. Without the
prior approval of Homeland, which approval shall not be unreasonably withheld,
the Company shall not issue any additional shares of capital stock (other than
shares required to be issued pursuant to the exercise of outstanding warrants,
outstanding stock options and stock options to be issued pursuant to the Stock
Plan).
(d)
Other Funding. Subject
to Homeland being in good standing under this Letter Agreement, the Company
will not, without the prior written consent of Homeland, solicit or entertain
offers of financing from any other person and shall refer any financing offers
or inquiries to Homeland; provided however, for greater clarity, this covenant
is intended to apply to the issuance of equity and equity-related securities
and is not intended to apply to solicitation, entertaining or accepting offers
to fund software and other development activities of the Company not involving
equity or equity-related securities (including for example private and public
grants).
9.
Covenants of Homeland. Homeland agrees and covenants with the Company as follows:
(a)
Homeland shall not amend or propose to amend its
certificate of incorporation or by-laws (or other comparable organizational
documents);
(b)
Homeland shall not, nor shall it permit any
subsidiary to, engage in any operating business other than those currently
conducted as of the date hereof;
(c)
Homeland shall continue to operate its business
in compliance with all applicable laws;
(d)
Homeland shall file with, or furnish (on a
publicly available basis) to, the SEC all forms, reports, schedules, statements
and documents required to be filed or furnished by it under the Securities Act
or the Exchange Act, as the case may be, including any
- 14 -
amendments or
supplements thereto, on a timely basis. Each such filing, shall not 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 made therein,
in the light of the circumstances under which they were made, not misleading.
Homeland agrees promptly upon execution of this Letter Agreement to file with
the U.S. Securities and Exchange Commission a Current Report on Form 8-K
disclosing this Letter Agreement and attaching a copy thereof, including
exhibits, as an exhibit;
(e)
Homeland shall use commercially reasonable
efforts to maintain the trading of its common stock on the OTC Markets Quality
Board.
(f)
Homeland shall promptly provide to the Company a
copy of any comment letters or other notifications received by the SEC;
(g)
Homeland shall not, nor shall it permit any
subsidiary to, offer or sell any securities (i) other than pursuant to an
effective registration statement filed with the SEC, pursuant to Regulation D
or Regulation S under the Securities Act or (ii) in violation of U.S. federal,
state or Canadian securities laws;
(h)
Homeland shall not, nor shall it permit any
subsidiary to, pay and broker or finder a commission in connection with the
sale of its securities in violation of federal, state or Canadian securities
laws, including without limitation paying any unregistered brokers a commission
where such registration may be required under U.S. federal, state of Canadian
securities laws;
(i)
Homeland shall not, nor shall it permit any
subsidiary to, without the consent of the Company, which shall not be
unreasonably withheld, incur any indebtedness for borrowed money or guarantee
any such indebtedness of another person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of Homeland
or any subsidiary in excess of $200,000;
(j)
Homeland shall promptly, but no later than 5
business days, after such change, provide written notice of any material
adverse changes to its business, operations or assets;
(k)
Homeland shall promptly, but no later than 5
business days, after such threatened or filed claim or lawsuit, provide written
notice of any threatened, or filed claim or lawsuit against Homeland, its
directors, officers or any of its assets;
(l)
Homeland shall not, nor shall it permit any
subsidiary to, enter into any material agreements, without the prior written
consent of the Company which consent shall not be unreasonably withheld;
(m)
Homeland shall not, nor shall it permit any
subsidiary to, enter into any agreement in principle, letter of intent,
memorandum of understanding or similar contract, agreement or understanding, with
respect to any merger, joint venture, strategic partnership or alliance, other
than the business combination contemplated by this Letter Agreement, without
the prior written consent of the Company which consent shall not be
unreasonably withheld;
- 15 -
(n)
Homeland will not make any disclosures or
communications about, or concerning, the Company, the Company business, or this
Letter Agreement without the Company’s prior written consent, including,
without limitation, make any such disclosures in any securities law filings, in
any press-releases, or make any other media disclosures, or in connection with any
formal or informal conversations with potential investors, or investment
bankers. The Company will promptly, based on Homeland’s disclosure
requirements, review any such disclosures or communications
(o)
Homeland shall not, without the prior, written consent
of the Company, institute, settle or compromise any legal actions pending or
threatened before any arbitrator, court or other any other governmental entity
other than any legal action brought against the Company arising out of a breach
or alleged breach of this Letter Agreement, or the Business Combination by
Homeland;
(p)
Homeland shall not, without the prior written
consent of the Company, settle or compromise any material tax claim, audit or
assessment, (ii) make or change any material tax election, change any annual tax
accounting period, adopt or change any method of tax accounting, (iii) amend
any material tax returns, or (iv) enter into any material closing agreement,
surrender in writing any right to claim a material tax refund, offset or other
reduction in tax liability or consent to any extension or waiver of the
limitation period applicable to any material tax claim or assessment relating
to Homeland or its subsidiaries;
(q)
Homeland shall not, and shall not permit any of its
respective subsidiaries to, take, or agree or commit to take, any action that
would reasonably be expected to, individually or in the aggregate, prevent,
materially delay or materially impede the consummation of the Business
Combination or the other transactions contemplated by this Letter Agreement.
10.
Grant of Security Interest.
(a)
Protective Security Interest. The security interest granted herein is protective or cautionary
and does not and is not intended to negate, limit or otherwise modify the
Company’s rights pursuant to the Delaware General Corporation Law with respect
to partially paid shares, including but not limited to those rights pursuant to
Del. Gen. Corp. Law Sections 156, 163 and 164.
(b)
Grant of Security Interest; Collateral. Homeland hereby pledges and grants to the Company a first
priority lien on and security interest in the Collateral, as hereinafter
defined. The term “Collateral” means, collectively: (i) all of Homeland’s
rights in respect of Partially Paid Shares which have not been fully paid
for in cash; and (ii) all products, proceeds and revenues of and from the
personal property described in clause (i) above, together with all
substitutions therefore and additions thereto including without limitation
stock rights, rights to subscribe, liquidating dividends, stock dividends, cash
dividends, interest, new securities and other property to which Homeland is or
may hereafter become entitled to receive on account of such personal property.
- 16 -
(c)
Security for Obligations. This Letter Agreement secures the payment and/or performance of
all obligations of Homeland to the Company, now or hereafter existing under
this Letter Agreement, including but not limited to the obligation to fully pay
the unpaid purchase price of the Partially Paid Shares, and all obligations of
Homeland now or hereafter existing under this Letter Agreement (all such
obligations of Homeland to the Company hereinafter referred to as the “Obligations”).
(d)
Delivery of Collateral. All certificates or instruments representing the Collateral shall
be delivered to and held by or on behalf of the Company pursuant hereto and
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer, indoresement or assignment in blank, all
in form and substance satisfactory to the Company. The Company shall have the
right, in the event of a default under this Letter Agreement, in its sole
discretion and without notice to Homeland, to transfer to or to register in the
name of the Company or any of its nominees any or all of the Collateral.
(e)
Representations and Warranties. Homeland represents and warrants as follows:
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(i) Upon Closing Homeland is the legal and beneficial owner of Collateral free and clear of any lien, security interest, option or other charges or encumbrance except for the security interest created by this Letter Agreement; and |
|
(ii) The pledge of the Partially Paid Shares pursuant to this Letter Agreement creates a valid and perfected first priority security interest in such shares, securing the payment and/or performance of the Obligations. |
(f)
Dividends; Voting Rights; Etc.
|
(i) So long as no Event of Default (as hereinafter defined) or event which, with the giving of notice or the lapse of time, or both, would become an Event of Default, shall have occurred and be continuing, Homeland shall be entitled to receive, subject to the provisions of Del. Gen. Corp. Law Section 156, and retain any and all dividends paid in respect of the Collateral; provided, however that any and all (A) dividends paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral, (B) dividends and other distributions paid or payable in cash in respect of any Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus, and (C) cash paid, payable or otherwise distributed in respect of principal of, or in redemption of, or in exchange for, any Collateral, shall forthwith be delivered to the Company to hold as Collateral, or as may otherwise be agreed between Homeland and the Company, and shall, if received by Homeland, be received in trust for the benefit of the Company, be segregated from the other property or funds of Homeland, and be forthwith delivered to the Company as Collateral in the same form as so received (with any necessary indorsement). |
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(ii) Homeland, by this Letter Agreement, hereby constitutes and appoints Company, with full power of substitution, from the date hereof until termination of this Letter Agreement in accordance with the provisions of Section 13 below (the “Unpaid Shares Proxy Term”), as Homeland’s true and lawful attorney and irrevocable proxy, for and in Homeland’s name, place and stead, to vote each of the Partially Paid Shares which as of the time of the taking of a vote or giving of consent are not fully-paid for (the “Unpaid Proxy Shares”) as Homeland’s proxy, including, without limitation, the right to vote at any election of directors and in favor of or in opposition to any resolution for a proposed dissolution and liquidation, merger, or consolidation of Company, or a sale of all or substantially all of its assets, or the issuance or creation of additional classes of its securities, or any action which may properly be presented at any stockholders’ meeting or which requires the consent of the stockholders of Company. Homeland shall not have any voting rights in respect of the Unpaid Proxy Shares during the Unpaid Shares Proxy Term. Homeland intends the foregoing proxy to be, and it shall be, irrevocable and coupled with an interest during the Unpaid Shares Proxy Term and hereby revokes any proxies previously granted by Homeland with respect to the Unpaid Proxy Shares. Homeland agrees that it will not enter into any agreement or understanding with any person or entity or take any action during the Unpaid Shares Proxy Term which will permit any person or entity to vote or give instructions to vote the Unpaid Proxy Shares in any manner inconsistent with the terms of this Section 10(f)(ii). Homeland further agrees to take such further action and execute and deliver, and cause others to execute and deliver such other instruments as may be necessary to effectuate the intent of this Letter Agreement, including without limitation, proxies and other documents permitting Company or any of its officers to vote the Unpaid Proxy Shares or to direct the record owners thereof to vote the Unpaid Proxy Shares in accordance with this Letter Agreement. This Section 10(f)(ii) is deemed to be an irrevocable proxy enforceable in accordance with the provisions of Section 218 of the Delaware General Corporations Law. |
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(iii) Company and Homeland acknowledge and agree that it is the intention of the parties that, until the consummation of a Business Combination, Homeland exercise voting control over a maximum of 25% of Company’s outstanding shares of Common Stock (with any shares of in excess of such amount referred to as “Excess Shares”). Accordingly, Homeland, by this Letter Agreement, hereby constitutes and appoints Company, with full power of substitution, from the date hereof until the consummation of a Business Combination (the “Excess Shares Proxy Term”), as Homeland’s true and lawful attorney and irrevocable proxy, for and in Homeland’s name, place and stead, to vote any shares of the Company’s Common Stock which as of the time of the taking of a vote or giving of consent are Excess Shares as Homeland’s proxy, including, without limitation, the right to vote at any election of directors and in favor of or in opposition to any resolution for a proposed dissolution and liquidation, merger, or consolidation of Company, or a sale of all or substantially all of its assets, or the issuance or creation of additional classes of its securities, or any action which may properly be presented at any stockholders’ meeting or which requires the consent of the stockholders of Company. Homeland shall not have any voting rights in respect of the Excess Shares during the Excess Shares Proxy Term. Homeland intends the foregoing proxy to be, and it shall be, irrevocable and coupled with an interest during the Excess Shares Proxy Term |
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and hereby revokes any proxies previously granted by Homeland with respect to the Excess Shares. Homeland agrees that it will not enter into any agreement or understanding with any person or entity or take any action during the Excess Shares Proxy Term which will permit any person or entity to vote or give instructions to vote the Excess Shares in any manner inconsistent with the terms of this Section 10(f)(iii). Homeland further agrees to take such further action and execute and deliver, and cause others to execute and deliver such other instruments as may be necessary to effectuate the intent of this Letter Agreement, including without limitation, proxies and other documents permitting Company or any of its officers to vote the Excess Shares or to direct the record owners thereof to vote the Excess Shares in accordance with this Letter Agreement. This Section 10(f)(iii) is deemed to be an irrevocable proxy enforceable in accordance with the provisions of Section 218 of the Delaware General Corporations Law. |
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(iv) Each certificate representing any Proxy Shares shall be endorsed by the Company with a legend reading substantially as follows: |
THE RIGHT TO
VOTE THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN A LETTER AGREEMENT, A COPY OF WHICH IS ON FILE AT THE
CORPORATION’S PRINCIPAL PLACE OF BUSINESS.
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(v) Upon the occurrence and during the continuance of an Event of Default under this Letter Agreement: (i) All rights of Homeland to receive the dividend payments which Homeland would otherwise be authorized to receive and retain pursuant to Section 10(f)(i) of this Letter Agreement shall cease, and the Company shall thereupon have the sole right to receive and hold as Collateral such dividend payments. |
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(vi) All dividend payments which are received by Homeland contrary to the provisions of paragraph (i) of this Section 10(f) shall be received in trust for the benefit of the Company, shall be segregated from other funds of Homeland and shall be forthwith paid over to the Company as Collateral in the same form as so received (with any necessary endorsement). |
(g)
Company Appointed Attorney-in-Fact. Upon an Event of Default (as defined in Section 11 of this Letter
Agreement) and the Company having given Homeland five (5) days’ prior written
notice thereof, Homeland hereby appoints the Company as Homeland’s
attorney-in-fact, with full authority in the place and stead of Homeland and in
the name of Homeland or otherwise, from time to time in the Company’s
discretion, to take any action and to execute any instrument, which the Company
may deem necessary or advisable to accomplish the purposes of this Letter Agreement,
including, without limitation, to receive, endorse and collect all instruments
made payable to Homeland representing any dividend or other distribution in
respect of the Collateral or any part thereof and to give full discharge for
the same.
(h)
Remedies upon Default. If any Event of Default shall have occurred and continues uncured
for five (5) consecutive days, the Company may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to
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them, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the “Code”) in effect in the
State of Delaware at that time, and the Company may also, without notice except
as specified below, sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker’s board or at any of
the Company’s offices or elsewhere, for cash, on credit for future delivery,
and at such price or prices and upon such other terms as the Company may deem
commercially reasonable.
(i)
Expenses.
Homeland will, upon demand, pay, to the Company, the amount of any and all
reasonable expenses, including the reasonable fees and expenses of the Company’s
counsel and of any experts and agents, which the Company may reasonably incur
in connection with (a) the administration of this Agreement, (b) the custody or
preservation of, or the sale of, collection from or other realization upon, any
of Collateral, (c) the exercise of enforcement of any of the rights of the
Company hereunder, or (d) the failure by Homeland to perform or observe any of
the provisions hereof.
11.
Event of Default.
The term “Event of Default” shall mean (1) failure of Homeland to pay the
unpaid amount due under the Partially Paid Shares within fifteen (15) days
after the date when due; or (2) any breach by Homeland of any other obligations
under this Letter Agreement or in any other document entered into in connection
therewith including, but not limited to, the Warrants, the Note and the Pledge
Agreement, (3) the insolvency, bankruptcy (which is not stayed within 60 days
after the commencement of such bankruptcy case) or dissolution of Homeland.
12.
Business Combination of the Company with
Homeland. Within thirty (30) days following
completion of the purchase and sale of Shares as provided in Paragraph 1 above
and payment by Homeland of the Aggregate Purchase Price, Homeland and the
Company agree to use best efforts to enter into and cause their respective
shareholders to approve a business combination (the “Business Combination”)
on the following terms and conditions:
(a)
The issued and outstanding capital stock (without
taking into account shares issuable upon the exercise or conversion of stock
options and warrants) of the resulting entity (the “Resulting Entity”)
shall be owned 50% by Homeland’s shareholders and 50% by the Company’s
shareholders;
(b)
The Resulting Entity shall be duly organized
under the laws of the State of Nevada;
(c)
The board of the Resulting Entity shall consist
of five (5) members a majority of which for one year following the Business
Combination shall be nominated by the Company’s current directors exclusively;
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(d)
The capital stock of the Resulting Entity shall
consist solely of common stock or shares convertible into common stock;
(e)
Douglas P. Boyd shall be the Chairman of the
Board and Chief Executive Officer of the Resulting Entity;
(f)
The Business Combination shall be approved by
the respective boards of directors and shareholders of the Company and
Homeland, as may be required by applicable law, provided however, that the
respective boards of directors shall not be obligated to approve the transaction,
if there is a material development, change or circumstance that was not known before
the date of this Letter Agreement and the board of directors determines in good
faith that the approval of the transaction would be inconsistent with its
fiduciary duties under applicable law.
(g)
Unless otherwise exempted from such
registration, the offer and sale of the shares to be issued to the Company’s
shareholders pursuant to the Business Combination shall be issued pursuant to
an effective registration statement filed with the Securities and Exchange
Commission and be freely tradable by the Company’s shareholders upon receipt.
Homeland agrees to promptly following the consummation of the Business
Combination, Homeland will file and appropriate registration statement with the
Securities Exchange Commission covering the offer, sale and resale of shares of
Common Stock issued and issuable pursuant to the Company’s stock plans.
(h)
The agreement governing the Business Combination
shall contain such representations, warranties, covenants, conditions to
closing, and indemnification provisions that are mutually acceptable to the
parties
13.
Termination. This
Letter Agreement may be terminated at any time:
(a)
by mutual written consent of Homeland and the
Company;
(b)
by the Company if an Event of Default, as
defined herein, shall have occurred and be continuing;
(c)
by either Homeland or the Company if the other
party shall have failed to comply in any material respect with any of its
covenants or agreements contained in this Letter Agreement required to be
complied with prior to the date of such termination, which failure to comply
has not been cured within ten (10) business days following receipt by such
other party of written notice of such failure to comply;
(d)
by Homeland if (i) there has been a breach of a
representation, warranty or covenant of the Company that gives rise to a
failure of the fulfillment of a condition of Homeland’s obligations to purchase
the Shares pursuant to Section 1 or to effect the Business Combination pursuant
to Section 12, or by Company if (ii) there has been a breach of a
representation, warranty or covenant by Homeland that gives rise to a failure
of the fulfillment of a condition of the Company’s obligations to sell the
Shares pursuant to Section 1 or to effect the Business Combination pursuant to
Section 12, in each case which breach has not been cured within ten (10)
business days following receipt by the breaching party of written notice of the
breach;
(e)
by either Homeland or the Company if:
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(i) the Business Combination has not been effected on or prior to the close of business on of March 31, 2019; provided, however, that the right to terminate |
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this Letter Agreement pursuant to this Section 10 shall not be available to any party whose failure to fulfill any of its obligations contained in this Letter Agreement has been the cause of, or resulted in, the failure of the Business Combination to have occurred on or prior to the aforesaid date; or |
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(ii) any court or other Governmental Entity having jurisdiction over a party hereto shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties shall have used their reasonable efforts to resist, resolve or lift, as applicable permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Letter Agreement and such order, decree, ruling or other action shall have become final and nonappealable. |
The right of any party hereto to terminate this
Letter Agreement pursuant to this Section 13 shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
party hereto, any person controlling any such party or any of their respective
officers or directors, whether prior to or after the execution of this Letter
Agreement.
14.
Effect of Termination. In the event of termination of this Letter Agreement by either
Homeland or the Company, as provided in Section 13, this Letter Agreement shall
forthwith become void and there shall be no liability hereunder on the part of
the Company, Homeland, or their respective officers or directors except:
(a)
Sections 9(n), 10(g), 10(h), 10(i), 14 and 15,
which shall survive the termination);
(b)
Homeland shall be entitled to ownership any
Common Stock which has been fully paid for;
(c)
Homeland’s rights under the Warrants if not yet
exercised shall be terminated;
(d)
The Company shall have all of the rights under
Del. Gen. Corp. Law. to seek from Homeland full payment of that portion of the purchase
price for any Partially Paid Shares, to exercise its rights pursuant to Section
12 of this Letter Agreement, to cancel any Partially Paid Shares, and such
other rights as may exist under the Del. Gen Corp. Law., all of such rights are
additive and are not exclusive;
(e)
provided, however, that nothing contained in
this Section 14 shall relieve any party hereto from any liability for any
willful breach of a representation or warranty contained in this Letter
Agreement or the breach of any covenant contained in this Letter Agreement.
15.
Miscellaneous.
(a)
Survival of Warranties. Unless otherwise set forth in this Letter Agreement, the
representations and warranties of the Company and the Purchaser contained in or
made pursuant to this Letter Agreement shall survive the execution and delivery
of this Letter Agreement and the Respective Closings.
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(b)
Successors and Assigns. The terms and conditions of this Letter Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Letter Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Letter Agreement, except as expressly provided in this
Agreement.
(c)
Applicable Law; Venue. Except for Section 10(f)(ii) and (iii) which shall be governed by
the laws of the State of Delaware as set forth therein, this Letter Agreement
shall be governed by, interpreted under, and construed and enforced in
accordance with the internal laws, and not the laws pertaining to conflicts or
choice of laws, of the State of Nevada applicable to agreements made and to be
performed wholly within the State of Nevada. The sole forum for resolving
disputes arising under or relating to this Letter Agreement shall be the District
Court for Clark County, Nevada, or the Federal District Court for the District
of Nevada – Las Vegas and all related appellate courts, and the parties hereby
consent to the jurisdiction of such courts and agree that venue shall be in Clark
County, Nevada.
(d)
Counterparts; Facsimile. This Letter Agreement may be executed and delivered by facsimile,
or any other electronic transmission devise pursuant to which the signature to
be delivered can be seen, and in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
(e)
Titles and Subtitles. The titles and subtitles used in this Letter Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Letter Agreement.
(f)
Notices. All
notices, requests, demands and other communications under this Letter Agreement
shall be in writing and shall be deemed to have been duly given (i) on the date
of service if served personally on the party to whom notice is to be given,
(ii) on the day of transmission if sent via facsimile transmission to the
facsimile number given below, and telephonic confirmation of receipt is
obtained promptly after completion of transmission, (iii) on the day after
delivery to FedEx or similar overnight courier or the Express Mail service
maintained by the United States Postal Service, or (iv) on the fifth day after
mailing, if mailed to the party to whom notice is to be given, by first-class
mail, registered or certified, return receipt requested, postage prepaid and
properly addressed, to the party as follows:
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Homeland Resources Ltd. 3395 S. Jones Blvd. #169 Las Vegas, NV 89146 Attn: President Tel: (702) 994-7056 Fax: (702) 221-9341 Email: info@homelandresources.com |
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With a copy to (which shall not be deemed notice): |
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O’Neill Law Corporation Suite 704, 595 Howe Street Vancouver, BC V6C2T5 Attn: Stephen F.X. O’Neill |
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Tel: (604) 687-5792 Fax: (604) 687-6650 Email: son@stockslaw.com |
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(ii)
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if to the Company, to:
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Telesecurity Sciences, Inc. 7391 Prairie Falcon Road, Suite 150B Las Vegas, NV 89128 Attn: Douglas P. Boyd, Chairman and Chief Executive Officer |
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Tel: (702) 227-7327 Fax: (702) 549-3020 Email: doug@telesecuritysciences.com |
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With a copy to (which shall not be deemed notice): |
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Allen Matkins Leck Gable Mallory & Natsis LLP Three Embarcadero Center, 12th Floor San Francisco, CA 94111 Attn: Roger S. Mertz, Esq. |
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Tel: (415) 837-1515 Fax: (415) 837-1516 Email: rmertz@allenmatkins.com |
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Any party may, by notice given in accordance with this Section to the other party, designate another address or person for receipt of notices hereunder. |
(g)
Attorneys’ Fees.
If any action at law or in equity (including arbitration) is necessary to
enforce or interpret the terms of any of the Transaction Documents, the
prevailing party shall be entitled to reasonable attorneys’ fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(h)
Amendments and Waivers. Any term of this Letter Agreement may be amended, terminated or
waived only with the written consent of the Company and Purchaser. Any
amendment or waiver effected in accordance with this Section 13(h) shall be
binding upon Homeland and each transferee of the Shares, each future holder of
all such securities, and the Company.
(i)
Severability.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
- 24 -
(j)
Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any party under this Letter Agreement, upon any breach or default
of any other party under this Letter Agreement, shall impair any such right,
power or remedy of such non-breaching or non-defaulting party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence therein,
or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach
or default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Letter Agreement, or any waiver on the part of any party of
any provisions or conditions of this Letter Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing.
All remedies, either under this Letter Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
__________________________
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(k)
Entire Agreement.
The Transaction Documents constitute the full and entire understanding and
agreement between the parties with respect to the subject matter hereof, and
any other written or oral agreements relating to the subject matter hereof
existing between the parties are expressly canceled.
IN WITNESS WHEREOF, the parties have executed
this Letter Agreement as of the date first written above.
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HOMELAND
RESOURCES LTD. |
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By: |
/s/ Thomas Campbell
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Its: |
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TELESECURITY SCIENCES, INC. |
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By: |
/s/ Douglas P. Boyd |
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Douglas P. Boyd |
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Its: Chairman and Chief Executive Officer |
- 26 -
Exhibit
A
Warrant A
EXECUTION COPY
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE
“SECURITIES ACT”), OR
ANY STATE SECURITIES LAW, AND MAY
NOT BE OFFERED
FOR
SALE, SOLD OR TRANSFERRED
UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN
EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS IS AVAILABLE IN CONNECTION WITH
SUCH OFFER, SALE OR TRANSFER.
WARRANT
TO PURCHASE COMMON STOCK
OF
TELESECURITY SCIENCES, INC.
Issue Date: January 15, 2015 (“Issue Date”) |
Warrant No. 2015-1 |
THIS CERTIFIES that HOMELAND RESOURCES LTD., a Nevada corporation (the
“Holder”), the
holder of this Warrant (this “Warrant”), has the right to purchase from
TELESECURITY SCIENCES, INC., a
Delaware
corporation (the “Company”), 743,373
shares fully-paid and nonassessable
shares of
the Company’s Common
Stock, par value $0.0001 per share (the “Common Stock”), subject to adjustment as provided herein, at a price equal to the
Exercise Price (as defined below), at any time (i) following
Holder’s (A) purchase of all of the 644,257
“Partially
Paid
Shares” being sold
to Holder under that certain
Letter
Agreement
between the Company and Holder dated as of January 15, 2015 (the “Letter Agreement”) and (B) Holder’s payment of the full purchase price for such shares in cash and ending at the earlier of (ii) (A) termination of the Letter Agreement by Holder or the Company pursuant to Section
13 of the Letter Agreement or (B) 5:00 p.m., New York City time, on January 15, 2017 (the
“Expiration Date”).
This Warrant is issued pursuant to and subject to the terms of the Letter Agreement. For purposes of this Warrant, a “Business Day” shall mean any
day other than Saturday, a Sunday or a day on which the New York Stock Exchange is closed or on which
banks in the City of New York
are required or authorized
by
law to be closed.
1. Exercise.
(a) Right to Exercise; Exercise Price.
Subject to the terms and conditions set forth herein, the Holder shall have the right to exercise this Warrant at any time and from time
to time during the period commencing on the Issue Date and ending on the Expiration Date as to
all, but not less than all, of the shares of Common Stock covered hereby (the “Warrant Shares”). The “Exercise
Price”
shall be equal
to $7,500,000.
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(1) Exercise Notice. In order to exercise this Warrant, the Holder shall deliver, at any time prior to 5:00 p.m. New York City time on the Business Day on which the Holder wishes to effect such exercise (the “Exercise Date”), to the Company an |
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executed copy of the notice of exercise in the form attached hereto as Exhibit A (the “Exercise Notice”) and the Exercise Price payable in the form of $2,000,000 in cash upon exercise and by delivery of the executed Secured Promissory Note and Pledge Agreement in the forms attached to the Letter Agreement. The Exercise Notice shall also state the name or names (with address) in which the shares of Common Stock that are issuable on such exercise shall be issued. After delivery of the Exercise Notice, the Holder shall promptly deliver the original warrant to the Company for cancellation. In the case of a dispute as to the calculation of the Exercise Price or the number of Warrant Shares issuable hereunder (including, without limitation, the calculation of any adjustment pursuant to Section 3 of this Warrant), the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed and shall submit the disputed calculations to a certified public accounting firm of national recognition (other than the Company’s independent accountants) promptly following the date on which the Exercise Notice is delivered to the Company. The Company shall cause such accountant to calculate the Exercise Price or the number of Warrant Shares issuable hereunder and to notify the Company and the Holder of the results in writing no later than ten (10) business days following the day on which such accountant received the disputed calculations (the “Dispute Procedure”). Such accountant’s calculation shall be deemed conclusive absent manifest error. The fees of any such accountant shall be borne by the party whose calculations were most at variance with those of such accountant. |
(b) Holder of Record.
The Holder shall for all purposes be deemed to have
become the holder of
record
of the
Warrant
Shares specified
in an Exercise Notice
as
of 5:00
p.m. New York City time on the Exercise Date, irrespective of the date of delivery of such Warrant Shares. Except as specifically
provided herein, nothing in this Warrant shall be
construed as conferring upon the Holder hereof any rights as a stockholder of the Company prior
to the Exercise Date.
(c) Cancellation
of Warrant. This Warrant shall be
canceled
upon its exercise.
2.
Delivery of Warrant Shares Upon Exercise. Upon exercise pursuant to Section
1 of this Warrant,
the Company
shall issue and deliver or caused to be delivered to the Holder the
number of Warrant
Shares
as shall be determined as provided herein within
a reasonable time not to
exceed two Business Days if the Company has appointed a transfer agent to administer its
securities and five Business Days if it has not (the “Delivery Date”). The Company
shall effect
delivery of Warrant Shares to the Holder by delivering to the Holder or its nominee physical certificates
representing
such
Warrant
Shares, no
later than the
close
of business on such
Delivery Date. The certificates representing the Warrant Shares may bear legends in accordance with the legend set
forth on the
face of this Warrant or
applicable law.
3.
Adjustments. The Warrant Shares and the Warrant Exercise Price are subject to
adjustment as follows:
(a) Adjustment for Change in Capital
Stock.
If the Company:
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(1) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock or other shares of its capital stock, |
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(2) subdivides or reclassifies its outstanding shares of Common Stock into a greater number of shares; or |
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(3) combines or reclassifies its outstanding shares of Common Stock into a smaller number of shares; |
then the
number of Warrant Shares issuable
upon exercise of the Warrant and the corresponding
Warrant Exercise Price immediately prior to such action shall be proportionately adjusted so that the Holder may receive the aggregate number and kind of shares of capital stock of the Company
that the Holder would have owned immediately
following such action if the Warrant had been exercised immediately prior to such
action.
The adjustment shall become effective immediately after the record date in the case of a
dividend or distribution and immediately after the effective date in the case of a subdivision, combination or reclassification.
(b) Adjustment for
Recapitalization, Reclassification,
Exchange, Substitution, Reorganization, Merger, Consolidation or Sale
of Assets. If a Reorganization occurs or the
Common Stock issuable
upon exercise of the Warrant
is otherwise changed into the same or a different number of shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a liquidation or subdivision or combination of
shares or stock dividend or any other event otherwise provided for in this Section 3), then and in such event Holder shall have
the right to purchase and receive
the kind and amount of stock and other securities and property receivable upon such Reorganization or other change in an amount equal
to the amount that the
holder would have been entitled to had it exercised such Warrant
immediately prior to such Reorganization, recapitalization, reclassification or other change, all
subject to further adjustment as provided herein. As a part of such Reorganization, recapitalization, reclassification or
other change,
provision
shall be made by the Company so
that the Holder shall
thereafter be entitled
to receive such stock,
securities
and property.
(c) Notice of Adjustment. Upon any adjustment required by this Section 3, the Company shall give written notice thereof, by
national overnight delivery service with
tracking capability, addressed to Holder at the address shown on the books of the Company, which notice
shall state the increase or decrease, if any, in the
Warrant Shares and Warrant
Exercise
Price, setting forth in reasonable detail the
method of calculation and the facts upon
which such calculation is based.
(d) Other Notices. In case at anytime:
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(1) the Company shall declare any dividend upon Common Stock or make any other distribution to the holders of its Common Stock, |
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(2) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or other securities or rights; |
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(3) there shall be any capital reorganization or reclassification of the capital stock of the Company, or any sale of substantially all of the Company’s assets or merger (collectively, a “Reorganization”); or |
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(4) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company (collectively, “Dissolution”); |
then the Company
shall give, by national overnight delivery service with tracking capability,
addressed to the Holder at the address shown on the books of the Company (i) at least 20 days’ prior written notice of the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining
rights to vote in respect of any such Reorganization or Dissolution, and (ii) in the case of any Reorganization or
Dissolution, at least 20 days’ prior written notice of the date when the same shall take place. Such notice in accordance with the foregoing clause (i) shall also specify, in the case of any such dividend, distribution
or subscription rights, the date on which the holders of Common Stock
shall be entitled thereto,
and
such notice in accordance with the foregoing clause (ii) shall also specify the date on which the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property
deliverable upon such Reorganization or Dissolution, as the case may be.
4.
Distributions. If the Company distributes to any or all holders of its Common Stock any
of its assets (including
but not limited to cash), securities (other than capital stock), or
any
rights or warrants to purchase securities (including
but not limited to Common Stock) of the
Company, the Company shall, upon exercise by the Holder of this Warrant, make the same
distribution to the Holder as though, immediately
prior to the record date with respect to such distribution, the Holder owned the number
of shares of Common Stock the
Holder could have purchased
upon the exercise
of the Warrant; provided, that
the Company shall
irrevocably deposit or cause
to be deposited in a
trust account for the benefit of
the Holder an amount of
money sufficient to pay such distribution,
such distribution
to be distributed by
the trust to the Holder at the
time this Warrant
is exercised.
5.
Fractional Interests. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of this Warrant.
If, on exercise of this Warrant, the Holder hereof would be entitled to a fractional share of Common Stock the Company
shall, in lieu of
issuing any such fractional share, pay to the Holder an amount in cash equal to the product
resulting from multiplying such fraction by
the fair market value of one share of the Company’s
Common Stock as of the Exercise Date, as determined in good faith by the Company’s Board of Directors.
6. Compliance With
Securities Act; Transfers.
(a) The Holder, by acceptance of this Warrant, agrees that this Warrant and the Warrant Shares are
being acquired for investment and that the
Holder will not offer, sell, or otherwise dispose of this Warrant or any
Warrant Shares except under circumstances which will
not result in a violation of the Securities Act.
In addition, this Warrant may not be transferred by
Holder except
with the prior written consent
of
the Company. Upon exercise of this Warrant, the
- 4 -
holder hereof shall, if requested by the Company, confirm in writing its investment purpose and acceptance of the restrictions
on transfer of the Warrant Shares.
(b) Subject to such restrictions, the Company shall transfer this Warrant from
time to time upon the books to be maintained by
the Company
for
that purpose, upon surrender thereof for transfer properly endorsed or accompanied by appropriate instructions for transfer and such other documents as may
be reasonably required by
the Company to establish that such
transfer is being made in accordance with the terms hereof, and a new Warrant shall be issued to
the transferee and
the surrendered Warrant shall
be canceled by the Company.
7.
Benefits of this Warrant. This Warrant shall be for the sole and exclusive benefit of the Holder of this Warrant and nothing in this Warrant shall be construed to confer upon any
person other than the Holder of this Warrant any
legal or equitable right, remedy or claim
hereunder.
8.
Legends. The shares of Common Stock issuable upon exercise of this Warrant
and
the shares of Common Stock issuable upon conversion of the Common Stock will
be subject to agreements between the initial Holder hereof and the Company
relating to voting and certain matters. Holder by accepting this warrant acknowledges and agrees that the following
(or a substantially similar) legends will be placed on the certificates
evidencing the Common Stock:
“THE SECURITIES REPRESENTED
HEREBY
HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE “SECURITIES ACT”)
OR ANY
APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED
FOR
SALE, PLEDGED
OR HYPOTHECATED EXCEPT PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT
OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT
REQUIRED.”
9.
Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company
of evidence of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of indemnity
reasonably
satisfactory
to the Company, and upon surrender of
this Warrant, if mutilated, the Company shall execute and deliver a new Warrant
of like tenor and date.
10.
Notice or Demands. Any notice, demand or request required or permitted to be
given by the Company or the Holder pursuant to the terms of this Warrant shall be in writing
and shall be deemed delivered (i) when delivered personally
or by
verifiable facsimile transmission,
unless such delivery is made on a day that is not a Business Day, in which case such delivery
will be deemed to be
made on the next succeeding Business Day, (ii) on the next Business Day
after timely delivery to a reputable overnight courier, and (iii) on the Business Day actually received if deposited in the
U.S.
mail (certified or registered mail, return receipt requested,
postage prepaid), addressed
as follows:
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If to the Company:
Telesecurity Sciences, Inc. |
- 5 -
|
7391 Prairie Falcon Road, Suite 150B
Las Vegas, NV 89128 |
|
Attn: Chief Executive Officer
Tel: (702) 227-7327
Fax: (702) 549-3020 |
and if to the Holder, to such address as shall be designated by the Holder in writing to the Company.
11.
Applicable Law. This Warrant is issued under and shall for all purposes be governed by and construed in accordance with the laws of the State of Nevada applicable to contracts made and
to be performed entirely within the State of Nevada.
12.
Amendments. No amendment, modification or other change to, or waiver of any provision of, this Warrant may be made unless such amendment, modification or change is set
forth
in writing and is signed
by
the Company and the Holder.
13.
Entire Agreement. This Warrant constitutes the entire agreement and supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
14.
Headings. The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise
affect the
meaning hereof.
15.
Restrictions. The Holder
acknowledges
that
the shares of Common Stock
acquired upon exercise of this
Warrant, if not
registered, will have restrictions upon resale
imposed by state and federal
securities
laws.
16.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the Holder.
IN WITNESS WHEREOF, the
Company has
duly
executed and delivered this
Warrant
as of the Issue Date.
|
TELESECURITY
SCIENCES, INC.
a Delaware corporation |
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By: |
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Name:
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Its: |
- 6 -
EXHIBIT
A to WARRANT
EXERCISE
NOTICE
The undersigned
Holder hereby irrevocably
exercises
the right to
purchase 743,373
shares of Common Stock (“Warrant Shares”) of TELESECURITY SCIENCES, INC. evidenced
by the attached Warrant (the “Warrant”), and tenders herewith payment of the purchase price in full in the
manner set forth in the Warrant,
together with all applicable transfer taxes, if any.
Capitalized terms used herein and not otherwise defined shall have the respective
meanings set forth in the Warrant.
Date:
___________________________________
Name of Registered
Holder
By:
Name:
Title:
EXHIBIT A
Exhibit
B
Secured
Promissory Note
EXECUTION COPY
SECURED PROMISSORY NOTE
$5,500,000.00 |
January , 2017 |
FOR VALUE
RECEIVED, and
upon the terms and conditions
set forth herein, HOMELAND RESOURCES LTD., a
Nevada corporation
(“Borrower”),
promises to pay to the order of TELESECURITY
SCIENCES, INC.,
a Nevada corporation (“Lender”), at Lender’s
office located at
7391 Prairie Falcon Road, Suite 150B, Las Vegas, Nevada 89128,
or at such other place as Lender may designate to
Borrower in writing from time
to time, the principal sum of
Five Million Five Hundred
Thousand Dollars ($5,500,000.00), or so much thereof as
is outstanding and
unpaid, together with
interest thereon at
the Interest
Rate (as such
term is defined below), in lawful money of the United
States of America which,
at
the time of payment,
shall be legal tender in
payment
of all debts and dues,
public and private.
This
Secured Promissory Note (the “Note”) is executed
and delivered pursuant
to and concurrent with the exercise by Borrower of a Common
Stock
Purchase Warrant
1. COMPUTATION
OF INTEREST.
1.01 Computation of Interest.
Interest
under this Note shall be
calculated based upon a
365-day year and for the actual number of days elapsed
for
any whole or partial
month in which interest is being calculated.
1.02 Interest Rate.
Interest
shall
accrue daily and compound
quarterly on the outstanding principal balance due under this
Note at a rate (“Interest
Rate”) equal to five percent (5.0%) per annum.
2. PAYMENTS
OF PRINCIPAL AND INTEREST.
2.01 Payment
of Principal
and
Interest. The principal hereunder shall
be dueand payable in eleven (11) consecutive
equal monthly installments
commencing ,20 . Interest accrued on
the principal amount
shall
be payable at the
same time as each principal payment.
2.03 Prepayment. The principal balance of this
Note and any unpaid
interest due under this Note may be prepaid
by
Borrower at
any time whatsoever, without prepayment
penalty or premium.
3. SECURITY; LOAN DOCUMENTS.
The indebtedness evidenced by this Note (the “Loan”) and
the
obligations created hereby are secured
by
a security interest in certain
“Collateral” (the “Collateral Interest”) as
such
term
is defined in a Pledge Agreement of even date herewith between
Borrower and Lender (“Pledge Agreement”) and a UCC-1
Financing
Statement
(“UCC-1”) to be filed with the Nevada Secretary of State concurrently with the execution of this Note and the Pledge Agreement. The Pledge Agreement together with
this Note and the UCC-1 are collectively referred
to herein
as the “Loan Documents.”
4. DEFAULT.
4.01 Event of
Default. The occurrence of any one or more of the following events shall
constitute an event
of default (“Event of Default”) under this
Note:
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(a) Payment. If Borrower fails to pay, when due, any payment of principal and/or interest or any other payment required under this Note and such failure is not cured within ten (10) days of Lender’s delivery of written notice thereof to Borrower; |
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(b) Obligations. If Borrower breaches and/or defaults with respect to any obligation, term, covenant, condition, agreement, representation and/or warranty undertaken under any of the Loan Documents (other than a default referenced in Section 4.01(a)) and such breach and/or default is not fully cured within thirty (30) days of Lender’s delivery of written notice thereof to Borrower or is not fully cured prior to the expiration of any applicable grace or cure period set forth in the Loan Documents, as the case may be; |
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(c) Transfer of Collateral. If Borrower sells or otherwise disposes of the Collateral Interest; |
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(d) Bankruptcy. The application by Borrower for, or the consent or acquiescence by Borrower to, the appointment of any trustee, receiver and/or liquidator for Borrower or for any portion of Borrower’s assets; or the appointment (without the consent or acquiescence of Lender) of any trustee, receiver and/or liquidator or trustee for Borrower or any portion of Borrower’s assets; or the making by Borrower of any assignment for the benefit of creditors; or the admission by Borrower in writing of Borrower’s inability to pay Borrower’s debts as they become due; or if Borrower becomes insolvent; or the filing by Borrower of a voluntary petition in bankruptcy or of any petition or answer seeking for Borrower any reorganization, arrangement, composition, readjustment, liquidation, dissolution and/or similar relief pursuant to any of the provisions of the United States Bankruptcy Code, as amended, or any similar present, successor or future statute, law and/or regulation; or the filing of such a petition against Borrower or the commencement of an action against Borrower seeking any such relief, provided that such action shall not have been dismissed (or that all orders or proceedings thereunder affecting Borrower shall not have been stayed); or the subsequent setting aside of the stay of any such order or proceeding. |
Upon
the occurrence of an
Event of Default, at Lender’s
option, the outstanding
principal balance of this Note, together with
all unpaid interest accrued thereon and all
other sums
due hereunder, shall immediately become due and payable, without notice or prior demand.
4.02 Default Rate.
Notwithstanding the provisions of Section 1 of this Note, upon the occurrence of an
Event of Default, the entire outstanding,
unpaid principal
balance of
this Note, and all unpaid interest
accrued
under this
Note, shall, at Lender’s option,
thereafter bear interest
at the Interest Rate plus
five (5) percentage points (the “Default Rate”) until
the default giving rise to
such Event of Default
shall have been
cured in full.
- 2 -
4.03 Cumulative Remedies; Attorney Fees. The remedies
of Lender in this Note or at law or in equity, shall be cumulative and
concurrent, and
may
be pursued singly,
successively or together in Lender’s
discretion
and
as often as occasion therefor shall
arise. If Borrower’s obligations under this
Note are enforced by Lender through
an
attorney, or
any payment
due under this Note collected
by
or through
an
attorney or collection agency, Borrower
agrees
to pay all
costs incurred by Lender in
connection therewith,
including, but not limited to, reasonable fees and
disbursements
of legal counsel
and collection agency costs, whether or not suit be brought. No provision
of this Section 4 shall
be construed as
a waiver of any other right or
remedy accruing to Lender by reason
of the occurrence of an Event
of Default. The payments
required under this
Section
4 shall be in addition to, and shall
in no way limit, any other rights
and remedies provided
for in this Note nor any other remedies provided by law or in
equity, and shall
be added to the principal
evidenced by this Note.
5. GENERAL CONDITIONS.
5.01 Borrower’s
Waivers. Borrower, for itself and
all others who may become liable for payment of all or
any part of the indebtedness
evidenced by this Note,
hereby waives
presentment for payment, demand, protest, and
notice of dishonor, protest, nonpayment,
demand,
intent to accelerate, and
acceleration.
5.02 Authority. Borrower represents
that Borrower has full power,
authority and legal
right to execute, deliver and
perform its obligations
pursuant to this Note, that the execution,
delivery and
performance of this Note has been duly authorized, that the
person executing
this Note on Borrower’s
behalf has authority to
do so, and that this Note, once
executed
by
Borrower, constitutes the
valid and binding obligation of
Borrower, enforceable in accordance with its terms.
6. MISCELLANEOUS.
6.01 Notices. All notices, requests,
demands
and other communications
under this Note shall
be in writing and shall be
deemed to have been
duly
given (i) on
the date of service if served personally on
the party to
whom notice is to be given, (ii) on
the day of transmission if sent via facsimile transmission to the facsimile number given
below, and telephonic
confirmation of
receipt is obtained promptly after completion of
transmission, (iii) on
the day after delivery to FedEx or similar overnight courier or the Express Mail
service maintained
by
the United States
Postal
Service, or (iv) on
the fifth day after mailing,
if mailed to the party to
whom notice is to be given,
by
first-class mail,
registered
or
certified, return receipt requested,
postage prepaid and
properly addressed,
to the party as
follows:
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To Borrower: |
Homeland
Resources Ltd.
3395 S. Jones Blvd.
#169
Las Vegas, NV 89146 |
|
|
|
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To Lender: |
Telsecurity Sciences, Inc.
7391 Prairie Falcon Road, Suite 150B
Las Vegas, Nevada 89128 |
- 3 -
6.02 Modification.
This Note may not be changed, waived,
supplemented, discharged or terminated orally or by any act or failure to
act on the part of Borrower or Lender, but only by an
agreement
in writing signed
by
the party against
whom enforcement
thereof is sought
and then only to the extent expressly set
forth in such
writing. No person other than a duly authorized officer or agent
of Lender shall be
deemed an agent of Lender nor have any authority to waive,
modify, supplement or
terminate in any manner whatsoever any of the terms of
this Note.
6.03 Binding Effect.
The terms and provisions
of this Note and the other Loan
Documents shall be binding
upon and inure to the
benefit of Borrower and Lender and their
respective heirs, executors,
legal representatives,
successors, successors and assigns, whether by
voluntary action of
the parties or by operation
of law.
6.04 Unenforceable Provisions.
Any
provision of this Note or the other Loan
Documents which may be determined by competent
authority to be
prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be
ineffective only to the
extent of such prohibition
or unenforceability without
invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other jurisdiction.
6.05 Ambiguity and
Construction of
Certain Terms. All personal pronouns
used herein, whether used in the
masculine, feminine or neuter gender, shall
be deemed to include
all other genders; the singular shall
include the plural and
vice
versa. Titles of
articles and sections are for convenience only and
in no way define, limit, amplify or describe the scope
or intent of any provisions
hereof. “Herein,” “hereof” and
“hereunder” and other words
of similar import refer to
this Note as a whole and not
to any particular section, paragraph
or other subdivision; “Section” refers to the entire section and
not to any particular subsection,
paragraph of
other subdivision. Reference to days for performance shall
mean calendar days
unless business days are expressly indicated.
6.06 Governing
Law.
This Note shall be interpreted, construed
and enforced
according to the
laws of the State of Nevada.
IN WITNESS WHEREOF, Borrower has executed this Note as of the date first above
written.
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HOMELAND
RESOURCES LTD. |
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By: |
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Name: |
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Title |
- 4 -
Exhibit
C
Pledge
Agreement
EXECUTION
COPY
PLEDGE AGREEMENT
This
PLEDGE
AGREEMENT,
is entered into effective as of ___________,
20__, by and between HOMELAND
RESOURCES LTD.,
a Nevada corporation
(the “Debtor”), and
TELESECURITY
SCIENCES, INC, a Delaware corporation (the “Secured Party”).
R E C I T A L S :
A. Pursuant to that
certain Letter Agreement
dated
January 15, 2015, between Secured Party and Debtor (the “Letter
Agreement”) the Secured Party agreed
to sell and the Debtor agreed to purchase certain
securities of Secured Party including a
Warrant to Purchase Common
Stock
entitling Debtor to purchase an
aggregate of 743,373 shares
of the Secured
Party’s common stock (the “Warrant”) and
paying therefore, in part,
by
the delivery by Debtor of
Debtor’s Secured Promissory Note (the “Note”) in the
form of Exhibit
A hereto in the original principal
amount of $5,500,000 (the “Loan”).
B. The Secured Party was
unwilling to enter into
the Letter Agreement
and
accept the Note in
partial payment
of the shares of common
stock to be purchase and
sold pursuant to the Warrant
(the “Warrant Shares”) unless
the Debtor in the manner hereinafter set forth
assigned to the Secured
Party all of
Debtor’s interest
in the Warrant Shares as
security for the payment of
the Note and the observance and performance by the Debtor of the terms,
covenants
and conditions of the Note.
NOW THEREFORE,
in consideration of the foregoing Recitals,
and
for other good and
valuable consideration,
the receipt and sufficiency of which are hereby acknowledged
and in order to induce the Secured Party to accept the
Note in payment of
the purchase price of the
Warrant
Shares,
the Debtor agrees
as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. The following terms
shall
have the meanings
herein specified unless
the context otherwise
requires. Such
definitions
shall be equally applicable to
the singular and
plural forms of the terms defined. Unless
otherwise defined herein, terms used
herein and defined in the
Note shall be used
herein as
so defined.
“Agreement” means this Pledge Agreement, as
modified, supplemented
or amended
from
time to time.
“Collateral” has the meaning assigned
to that term in Section
2.1(a).
“Company” has
the meaning assigned
to that term in Recital A.
“Debtor” has the meaning assigned
to that term in the first
paragraph of
this Agreement.
“Event
of Default” has the
meaning assigned
to that
term in Section 4 of the Note.
“Letter
Agreement” has
the
meaning assigned
to that term in Recital A.
“Lien” means any mortgage,
pledge,
hypothecation, assignment,
deposit arrangement, encumbrance,
lien (statutory or other),
preference, priority or other security agreement of
any kind or nature whatsoever (including, without
limitation, any conditional
sale or other title
retention
agreement, any financing or similar statement or
notice filed under the Uniform Commercial
Code
or any other similar recording or notice statute, and any lease having
substantially the same effect as
any of the foregoing).
“Loan” has the
meaning assigned
to that term in Recital B.
“Loan Documents” has the meaning assigned
to that term
in Section
3 of the Note.
“Note” has the
meaning assigned
to that term in Recital B.
“Obligations” means:
(i)
all indebtedness, obligations, and liabilities
(including, without limitation, guarantees and other contingent
liabilities) of the Debtor to
the Secured Party or any other holder of the Note arising
under or in connection with the Note or this Agreement; (ii) any and
all sums advanced
by the Secured
Party in
order to preserve the Collateral
or preserve its security interest
in the Collateral; and
(iii) in the event
of any proceeding for the collection or enforcement
of any indebtedness,
obligations, or liabilities
of the Company and/or
the Debtor referred to in clauses
(i)
and (ii), after an Event of Default shall
have occurred
and be continuing, the
expenses of re-taking,
holding, preparing for sale or lease,
selling, or otherwise
disposing or realizing on
the Collateral, or of any exercise by the Secured
Party of its rights
hereunder, together with reasonable attorneys’ fees and expenses and
court costs.
“Proceeds” has
the meaning assigned
that term under the Uniform Commercial
Code
or under other relevant law and,
in any event,
shall include, but not be limited to, (i) any and all
proceeds
of
any insurance, indemnity,
warranty,
or
guaranty payable to the
Secured Party and/or
the Debtor from time to time with respect to any of the Collateral,
(ii) any and
all payments
(in any form whatsoever) made or due and
payable to the Company and/or the Debtor from
time to time in connection with any requisition, confiscation,
condemnation, seizure, or
forfeiture of all or
any part of the Collateral by any governmental authority (or any Person acting under color of
governmental authority), and
(iii) any and all
other amounts from time
to time paid or payable under or in
connection with
any of the Collateral.
“Proxy Shares” has
the meaning assigned to that term
in Section
3.5.
“Proxy Term” has the
meaning assigned to that
term
in Section
3.5.
“Secured Party” has
the meaning assigned to that term
in the first paragraph of this Agreement.
“Warrant Shares” has
the meaning assigned to that term
in Recital B.
- 2 -
ARTICLE 2
SECURITY INTERESTS
2.1 Grant of
Security
Interest.
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(a) As security for the prompt and complete payment and performance when due of all of its Obligations, the Debtor does hereby assign and transfer unto the Secured Party a continuing security interest of first priority in all of the right, title, and interest of the Debtor in, to and under all of the following, whether now existing or hereafter from time to time acquired: (i) until fully-paid for by Debtor in cash, the Warrant Shares, (ii) all Proceeds and products of any and all of the foregoing described in clause (i) above, together with all substitutions therefore and additions thereto including without limitation stock rights, rights to subscribe, liquidating dividends, stock dividends, cash dividends, interest, new securities and other property to which Debtor is or may hereafter become entitled to receive on account of such personal property (all of the above, collectively, the “Collateral”). For purposes of determining the Collateral, a Warrant Share shall be deemed fully paid for with each $10.09 payment made by Debtor to Secured Party. With the initial $2,000,000 cash payment made by Debtor upon exercise of Warrant A, 198,216 shares will be deemed fully paid for and not part of the Collateral. |
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(b) The security interest of the Secured Party under this Agreement extends to all Collateral of the kind described in preceding clause (a) which the Debtor may acquire at any time during the continuation of this Agreement. |
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(c) Warrant Shares shall be released and not deemed part of the Collateral as payments are made by Debtor on the Loan. For each $10.09 payment received by Secured Party, one Share shall be released and not deemed Collateral. |
2.2 Power of Attorney. The Debtor hereby irrevocably constitutes
and
appoints the Secured Party its true and lawful attorney with full power of substitution
after the occurrence of an
Event of Default (in
the
name of the Debtor or otherwise) to act, require,
demand,
receive,
compound, and give acquittance for any and all monies
and claims for monies
due or to become due to
the Debtor under or arising out of the Collateral, to endorse any checks
or other instruments or
orders in connection therewith
and to file any claims or
take any action
or institute any proceedings
which the Secured Party may deem to be
necessary or advisable in
the circumstances,
which appointment as
attorney is coupled with an
interest; provided, however, that nothing herein
contained shall be
construed as requiring or obligating the Secured Party to make any commitment or
to make any inquiry as
to the nature or sufficiency of any payment received
by
it or to present
or file any claim or
notice, or to take any action with respect to the Collateral or
any part thereof or the moneys due
or to become due in respect
thereof or any
property covered
thereby,
and no action taken by the Secured
Parry or omitted to be
taken with respect to the Collateral
or any part thereof shall
give
rise to any defense, counterclaim, or
offset in favor of the Debtor or to any claim
or action against the Secured
Party.
- 3 -
ARTICLE 3
PROVISIONS CONCERNING
COLLATERAL
3.1 Protection of
Secured Party’s Security.
The Debtor will do nothing to impair the rights of
the Secured Party in
the Collateral.
3.2 Further Actions. The Debtor will,
at its expense, make, execute, endorse, acknowledge, file, and
deliver to
the Secured
Party from
time to time such lists, descriptions
and designations of
its Collateral,
schedules,
confirmatory assignments, conveyances, financing
statements, continuation
statements, transfer endorsements,
powers of attorney, certificates, reports, and
other assurances
or instruments and take such further steps relating to
the Collateral and
other property or rights
covered
by
the security interest
hereby granted, to perfect,
preserve or protect its security interest in the Collateral.
3.3 Financing Statements. The Debtor agrees
to sign and deliver to the
Secured
Party such
financing statements and
continuation statements
as may be required,
to establish and
maintain a valid, enforceable,
first
priority security interest
in the Collateral
as provided herein and
the other rights
and security contemplated herein, all
in accordance with the
Uniform Commercial
Code
as enacted
in any and all relevant
jurisdictions or any other relevant
law. The Debtor will pay any applicable filing fees
and related expenses. The
Debtor authorizes the Secured
Party to
file any such financing statements
without the signature of the Debtor.
3.4 Distributions.
Debtor shall have the right to collect
and receive all distributions,
whether capital or income, or both,
in whatever form, whether consisting of cash or
property,
or both, from the Collateral which
Debtor is entitled to
receive or in which
Debtor has
an interest.
3.5 Proxy.
Debtor, by this Agreement, hereby constitutes and
appoints Secured
Party,
with full power of substitution, from the date hereof until
termination of this Pledge Agreement
(the “Proxy Term”),
as
Debtor’s true and lawful attorney and irrevocable proxy,
for and in Debtor’s name,
place and stead,
to vote each of the Warrant Shares which as of the time of the
taking of a vote or giving of consent are not
fully-paid for (the “Proxy Shares”) as Debtor’s proxy, including,
without limitation, the right to vote at any election of
directors and
in favor of or in opposition to any resolution for a proposed
dissolution and liquidation, merger, or consolidation of
Secured Party, or a sale of all or
substantially all of
its assets, or
the issuance or creation
of additional classes
of its securities, or
any action
which may properly be presented at
any stockholders’ meeting or which
requires the consent of
the stockholders of Secured Party. Debtor shall
not have any voting rights in respect
of the Proxy Shares
during the Proxy Term. Debtor intends
the foregoing proxy to
be,
and it shall be,
irrevocable and
coupled with an interest during the Proxy Term
and hereby revokes any proxies previously granted by Debtor with respect
to the Proxy Shares.
Debtor agrees that it will not enter into any agreement or understanding with
any person or
entity or take any action during the Proxy Term
which will permit any person
or entity to
vote or give instructions
to vote the Proxy Shares in any manner inconsistent with the terms of this Section 3.5. Debtor further agrees to take such
further action
and execute
and deliver, and
cause others to execute and
deliver such
other instruments as
may be necessary to effectuate the intent
of this Pledge Agreement,
including without limitation, proxies and
other documents permitting Secured Party or any of its officers to vote
the Proxy Shares or
to direct the record
owners
thereof to vote the Proxy Shares
in accordance with this
- 4 -
Pledge Agreement.
This Section 3.5 is deemed to be
an irrevocable proxy enforceable in
accordance with the
provisions of Section
218 of the Delaware General Corporations Law.
3.4 Legend. Each certificate representing
any Proxy Shares shall
be endorsed by Secured Party with a
legend reading substantially as follows:
THE RIGHT
TO VOTE THE SHARES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT
TO CERTAIN RESTRICTIONS SET
FORTH IN A PLEDGE AGREEMENT,
A COPY
OF WHICH IS ON
FILE AT THE
CORPORATION’S PRINCIPAL PLACE OF BUSINESS.
ARTICLE 4
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
4.1 Remedies;
Obtaining the Collateral
Upon Default. The Debtor agrees that, if
any Event of Default shall
have
occurred, then and in every such case,
subject
to any mandatory
requirements of applicable law
then in effect, the
Secured Party,
in addition to any rights
now or hereafter existing under applicable law,
shall have all
rights
as a secured creditor under the
Uniform Commercial
Code
in all relevant jurisdictions
and all other rights or
remedies at law
or equity available to secured creditors, and
may
sell, assign, or otherwise liquidate,
or direct the Debtor to sell,
assign, or otherwise liquidate, any or all of
the Collateral or any part thereof, and
take possession of the proceeds
of any such sale or liquidation. If any Event
of Default shall have occurred, in the event Secured Party wishes
to retain the
Collateral in satisfaction of Debtor’s obligations hereunder and so notifies Debtor, Debtor hereby waives,
to the fullest extent
allowed by law, any rights it might
have to cause the Secured Party to sell, offer for sale
or otherwise liquidate the Collateral.
4.2 Remedies;
Disposition of the Collateral.
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(a) Any Collateral may be sold, assigned, leased, or otherwise disposed of under one or more contracts or as an entirety, and without the necessity of gathering at the place of sale the property to be sold, and in general in such manner, at such time or times, at such place or places and on such terms as the Secured Party may, in compliance with any mandatory requirements of applicable law, determine to be commercially reasonable. Any such disposition which shall be a private sale or other private proceeding permitted by such requirements shall be made upon not less than three (3) days’ written notice to the Debtor (which Debtor agrees is reasonable notification within the meaning of Section 9-504(3) of the Uniform Commercial Code) specifying the time at which such disposition is to be made and the intended sale price or other consideration therefor, and shall be subject, for the three (3) days after the giving of such notice, to the right of the Debtor or any nominee of the Debtor to acquire the Collateral involved at a price at least equal to the intended sale price. Any such disposition which shall be a public sale permitted by such requirements shall be made upon not less than three (3) days’ written notice to the Debtor (which Debtor agrees is reasonable notification within the meaning of Section 9-504(3) of the Uniform Commercial Code) specifying the time and place of such sale and, in the absence of applicable requirements of law, shall be by public auction (which may, at the Secured Party’s option, be subject to reserve), after |
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publication of notice of such auction not less than ten (10) days prior thereto in a newspaper in general circulation in Las Vegas, Nevada. To the extent permitted by any such requirement of law, the Secured Party may bid for and become the purchaser of the Collateral or any item thereof, offered for sale in accordance with this Section 4.2 without accountability to the Debtor (except to the extent of surplus money received as provided in Section 4.3). If, under mandatory requirements of applicable law, the Secured Party shall be required to make disposition of the Collateral within a period of time which does not permit the giving of notice to the Debtor as hereinabove specified, the Secured Party need give the Debtor only such notice of disposition as shall be reasonably practicable in view of such mandatory requirements of applicable law. |
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(b) Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. Any such public or private sale or other disposition may be as a unit or in one or more parcels and by way of one or more contracts (it being agreed that the sale of any part of the Collateral shall not exhaust the power of sale granted hereunder, but sales may be made from time to time until all of the Collateral has been sold or until the Obligations have been paid in full), and at any such sale it shall not be necessary to exhibit the Collateral. Secured Party shall have the right upon any public sale or sales and, to the extent permitted by law, upon any private sale or sales, to purchase the whole or any part of the Collateral so sold. Upon the consummation of any public or private sale, Secured Party will have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, and Debtor hereby waives, to the extent permitted by law, all rights of redemption, stay or appraisal which it has or may at any time in the future have under any law or statute now existing or hereafter enacted. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the purchaser thereof, but the Secured Party will not incur any liability in the case of failure of such purchaser to take up and pay for the Collateral so sold, and in the case of any such failure, such Collateral may again be sold upon like notice. Secured Party may also, at its discretion, proceed by a suit or suits at law or in equity to foreclose its security interest and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. Debtor covenants and agrees that it will execute and deliver such documents and take such actions as Secured Party deems reasonably necessary or advisable in order that any such sale shall be valid and binding and made in compliance with law. If any consent, approval, or authorization of any state, municipal or other governmental department, agency or authority should be necessary to effectuate any sale or other disposition of the Collateral, or any part thereof, Debtor shall execute all such applications and other instruments and take such action as Secured Party reasonably deems necessary or advisable in order to secure any such consent, approval or authorization, and will otherwise use its reasonable efforts to secure the same. Debtor recognizes that in the event that Secured Party is unable to effect a public sale of any or all of the Collateral by reason of certain prohibitions contained in the federal securities laws of the United States and applicable state or foreign securities laws, and may be |
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compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Debtor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to Secured Party than if such sale were a public sale and agrees that such circumstances shall not in and of themselves result in a determination that such sale was not made in a commercially reasonable matter. Proceeds of any sale or other disposition of the Collateral may be applied to the Obligations in whatever order or priority Secured Party may subjectively determine. Notwithstanding any other provision herein to the contrary, Secured Party shall not be deemed to have accepted any property in satisfaction of any obligation of Debtor to Secured Party unless Secured Party shall have made an express written election of said remedy under Section 9505 of the Uniform Commercial Code of the State. |
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(c) Secured Party acknowledges that it has extensive and sophisticated knowledge with regard to any market concerning the Collateral. Secured Party further acknowledges that the sale of the Collateral is reasonable if done at a private sale and that the notice requirements provided above afforded a commercially reasonable opportunity to see that the Collateral is liquidated at a commercially reasonable price. To the fullest extent allowed by law, Debtor waives any rights it might have to object to the commercially reasonableness of Secured Party’s proceedings in accordance with the above. |
4.3 Application of
Proceeds.
The proceeds of any Collateral
obtained pursuant to Section 4.1 or disposed of pursuant to Section 4.2 shall be applied first to the reasonable expenses of the Secured Party incurred with
third parties in realizing upon the Collateral,
second to the Obligations until they are paid
in full, and the remainder,
if any, shall
be paid to the Debtor.
4.4 Remedies
Cumulative. No failure or delay on the part
of the Secured
Party in
exercising
any right,
power or privilege hereunder and no course of dealing
between the Debtor and
the Secured
Party shall
operate as a waiver thereof;
nor shall any single or partial exercise
of any right,
power,
or
privilege hereunder or under the Note preclude
any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein expressly provided are cumulative
and not exclusive of any rights, powers,
or remedies which the
Secured Party would
otherwise have. No
notice to or
demand on the Debtor in
any case shall
entitle the Debtor to
any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of the Secured
Party to any other or
further action
in any circumstances without notice or demand.
ARTICLE 5
MISCELLANEOUS
5.1 Notices. All notices or other communications
required or
permitted hereunder shall
be in writing and shall be
delivered in person or by nationally recognized
overnight courier, telegraph,
telex, telecopy, facsimile, fax, cable or mailed
certified mail, postage prepaid, return receipt
requested, as
follows:
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To
the Debtor: |
Homeland
Resources Ltd.
3395 S. Jones Blvd.
#169
Las Vegas, NV 89146 |
|
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To Secured Party: |
Telesecurity Sciences, Inc.
7391 Prarie Falcon
Road, Suite 150B
Las Vegas, Nevada 89128 |
Any such
notice or other communication
shall be deemed received and
effective upon the
earlier of (i) if personally delivered,
the date of delivery to the
address of the person to receive such notice;
(ii) if delivered
by overnight
courier, the business day following its deposit with the overnight courier; (iii) if mailed,
four (4) business days after the date of posting by the United States
post office; (iv) if given
by
telegraph
or
cable, when delivered
to the telegraph company with charges
prepaid; or (v) if given by telex,
telecopy, facsimile
or fax, when sent.
Any reference herein
to the date of receipt, delivery, or giving,
as the case may be,
of any notice or other communication
shall refer to the date such communication
becomes effective
under the terms of
this Section 5.1. Any notice or other communication sent
by
cable, telex,
telecopy,
facsimile or fax must be
confirmed within forty-eight (48) hours by letter mailed
or delivered in accordance with the
foregoing.
Notice of change of address
shall
be given by written
notice in the manner detailed in this Section 5.1. Rejection or
other refusal
to accept or the inability to
deliver because of changed address of which
no notice was given
shall be deemed to constitute
receipt of the notice or other communication
sent.
5.2 Entire Agreement.
This Agreement constitutes
the entire agreement between
the parties hereto
with respect to the subject
matter hereof, and may not be
modified, amended, or
otherwise changed
in any manner, except
by
a writing signed
by
all the parties
hereto. Neither
this Agreement
nor any of the rights or
obligations hereunder may be assigned
by either the Debtor or the Secured
Party without
the prior written consent of
the other party.
5.3 Obligations
Absolute. The Obligations of
the Debtor under this
Agreement
shall be absolute and unconditional and
shall remain in full
force and
effect without
regard
to, and shall not be released, suspended, discharged,
terminated,
or otherwise affected by, any
circumstance or occurrence whatsoever,
including, without limitation: (i) any renewal, extension,
amendment, or
modification of, or addition
or supplement to or deletion from,
the Note or any other instrument or
agreement referred
to therein, or any assignment
or transfer of any thereof;
(ii) any waiver,
consent, extension, indulgence,
or other action
or inaction under or in respect
of any such instrument
or agreement or
this Agreement
or any exercise
or non-exercise
of any right, remedy, power or privilege under or in respect of
this Agreement or
the Note; (iii)
any furnishing
of any additional security to
the Secured Party or any acceptance thereof or
any sale,
exchange, release, surrender,
or realization
of or upon any security by the Secured Party; or (iv) any invalidity, irregularity,
or unenforceability of all
or part of the Obligations or
of any security therefor.
5.4 Debtor’s
Duties. It is expressly agreed,
anything
herein contained
to the contrary notwithstanding, that the Debtor shall remain liable to
perform all of
the obligations, if any, assumed by it with respect to the
Collateral and the Secured
Party shall not have any obligations
or liabilities with respect
to any Collateral by reason of or arising out of
this Agreement, nor
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shall the
Secured Party be required
or obligated in any manner to
perform or fulfill
any of the obligations of
the Debtor under or with
respect to any Collateral.
5.5 Termination;
Release.
When all
Obligations have been
paid
in full, this Agreement
shall
terminate, and the
Secured Party, at the
request and
expense of the Debtor, will execute and deliver to
the
Debtor the proper instruments
(including Uniform Commercial
Code termination statements on form UCC-2 or UCC-3, as
the case may be) acknowledging the
termination of this Agreement, and
will duly assign, transfer and deliver to the Debtor
(without recourse and without any representation
or warranty) such of the Collateral as may be in possession
of the Secured Party and
has not theretofore been sold or otherwise applied or released pursuant to this Agreement.
5.6 Counterparts. This Agreement
may
be executed in
any number of counterparts and
by
the different
parties hereto
on separate counterparts, each of which when so executed and
delivered shall be an
original, but all
of which shall together constitute one and the
same instrument.
5.7 Severability. Every provision of
this Agreement
is intended to be severable.
If
any term or
provision hereof is
declared by a court of competent jurisdiction to be illegal
or invalid, such illegal
or invalid term or
provision shall not affect
the other terms
and provisions hereof, which terms
and
provisions shall remain binding and enforceable.
5.8 Warranties and Representations.
Debtor warrants and
represents
to Secured
Party that:
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(a) Debtor owns the Collateral free and clear of all liens, security interests, adverse claims and encumbrances other than the security interest created or permitted hereby; |
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(b) No financing statement covering any of the Collateral is on file in any public office, other than the financing statement evidencing the security interest created or permitted hereby; and |
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(c) The execution and delivery of this Agreement will not violate any law, agreement or document governing Debtor or to which Debtor is a party. |
5.9 Covenants Of
Debtor. Except as
may
otherwise be set forth in or
allowed under the
terms of any of the other Loan
Documents, Debtor represents,
warrants and covenants and
agrees
that:
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(a) Debtor shall not sell, pledge, hypothecate, transfer, lease, assign, abandon or otherwise dispose of any of the Collateral or any interest therein; |
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(b) Debtor shall keep the Collateral free of liens, security interests and encumbrances other than the security interest created or permitted hereby; |
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(c) Debtor shall promptly notify Secured Party of any Event of Default; |
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(d) Debtor shall not use the Collateral in violation of any applicable statute, ordinance or insurance policy; and |
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(e) Debtor shall defend the Collateral against the claims and demands of all third parties. |
5.10 Waivers by Debtor.
To the extent permitted by law,
Debtor hereby waives and
agrees
not to take advantage of:
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(a) Any right to require Secured Party to proceed against any other person or to proceed against or exhaust any security held by Secured Party at any time or to pursue any other remedy in Secured Party’s power or under any other agreement before proceeding against Debtor or the Collateral hereunder; |
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(b) Any defense that may arise by reason of (i) the incapacity, lack of authority, death or disability of any other person or persons or the failure of Secured Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person or persons (ii) any manner in which Secured Party has exercised its rights and remedies under the Loan Documents, or (iii) any cessation from any cause whatsoever of the liability of Debtor, or any other person or persons; |
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(c) Demand (but not in derogation of the specific notice of default and cure periods provided for herein), presentment for payment, notice of nonpayment, protest, notice of protest and, except as provided in the Loan Documents or as required by applicable law, all other notices of any kind, or the lack of any thereof, including, without limiting the generality of the foregoing, notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or nonaction on the part of Debtor, Secured Party, any endorser or creditor of Debtor or on the part of any other person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by Secured Party; |
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(d) Any defense based upon an election of remedies by Secured Party, including an election to proceed by nonjudicial or judicial foreclosure of any security, whether real property or personal property security, or by transfer in lieu thereof, or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of Debtor; |
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(e) Any right or claim of right to cause a marshalling of the assets of Debtor; (f) Any principle or provision of law, statutory or otherwise, which is or might be in conflict with the terms and provisions of this Agreement; |
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(g) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents; |
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(h) Any assertion or claim that the automatic stay provided by 11 U.S.C. § 362 (arising upon the voluntary or involuntary bankruptcy proceeding of Debtor) or any other stay provided under any other debtor relief law (whether statutory, common law, |
- 10 -
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case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Secured Party to enforce any of its rights, whether now existing or hereafter acquired, which Secured Party may have against Debtor or the Collateral; |
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(i) Any modifications of the Loan Documents or any obligation of Debtor relating to the Note by operation of law or by action of any court, whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise; |
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(j) The defense of the statute of limitations in any action hereunder or in any action for the collection or performance of any of the Obligations; |
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(k) Until all Obligations owing to Secured Party have been fully paid, any rights of subrogation, reimbursement, exoneration, contribution or indemnity, or any right to enforce any remedy which Secured Party now has or may hereafter have against Debtor or any benefit of, or any right to participate in, any security now or hereafter held by Secured Party; |
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(l) Any defense based upon Secured Party’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; and |
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(m) Any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code. |
5.11 Waiver by Debtor.
Debtor covenants and agrees that, upon the commencement
of a voluntary or involuntary bankruptcy proceeding
by
or against Debtor, Debtor shall not seek
or cause any other person
or entity to
seek a supplemental
stay
or other relief, whether injunctive or otherwise, pursuant to 11
U.S.C. § 105 or any other provision of the Bankruptcy Reform Act
of 1978,
as amended,
or
any other debtor relief law, (whether statutory, common law,
case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which
may
be or become
applicable, to stay,
interdict, condition, reduce or inhibit the ability of Secured
Party to enforce any rights
of
Secured Party against
Debtor or the Collateral by virtue of this Agreement or
otherwise.
5.12 WAIVER OF JURY
TRIAL.
EACH
OF DEBTOR AND SECURED
PARTY
HEREBY
WAIVES,
TO THE FULLEST
EXTENT
PERMITTED BY LAW,
ANY RIGHT SUCH
PARTY
MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION,
PROCEEDING, OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY
OR INDIRECTLY TO THE INDEBTEDNESS EVIDENCED BY
THE NOTE; THE INTERPRETATION,
CONSTRUCTION, VALIDITY, ENFORCEMENT OR
PERFORMANCE
OF THE
NOTE OR ANY OF THE OTHER
LOAN DOCUMENTS;
OR ANY ACTS OR OMISSION OF EITHER PARTY, ITS OFFICERS,
- 11 -
EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION WITH ANY
OF THE
FOREGOING.
5.13 Sale or Encumbrance
of Company Assets. Nothing contained
in this Agreement shall
prohibit, limit or restrict
the encumbrance,
sale, lease or transfer of any or all
of the assets of the Company and/or
the Debtor other than
the Collateral.
5.14 Miscellaneous. The Section headings used in this Agreement are for reference purposes only, and are not intended to be
used in construing this Agreement.
This Agreement shall
be binding upon and shall
inure to the benefit of the successors,
assigns, personal representatives,
heirs and legatees
of the respective parties
hereto
(provided,
however, nothing contained in the
foregoing shall modify or amend the restrictions
on Debtor’s rights
to assign or otherwise
transfer the Collateral
as herein provided). As used
in this Agreement, where the
context so requires,
the use of the neuter gender shall include the masculine and
the feminine genders,
the masculine gender shall
include the feminine and neuter, and
the
singular number shall
include the plural, and
vice versa.
Time is of the essence of this
Agreement. Except for
Section
3.5 which shall be governed
by
the laws of the State of Delaware as
set forth therein,
the provisions of this Agreement
shall be construed and
enforced in accordance with the
laws of the State of Nevada. Each party hereto acknowledges,
represents
and warrants that
(i)
each party hereto
is of equal bargaining strength; (ii) each such
party has actively participated
in the drafting, preparation and negotiation
of this Agreement;
and (iii) any rule of construction
to the effect that ambiguities are to
be resolved against the
drafting party shall
not apply in the interpretation of
this Agreement,
any portion
hereof or any amendments hereto.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the
parties hereto have caused
this Agreement
to be executed
and delivered by their duly authorized officers as of the date first
written above.
“Debtor” |
HOMELAND
RESOURCES LTD. |
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By: |
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Name: |
|
|
Title |
“Secured
Party” |
TELESECURITY
SCIENCES, INC. |
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By: |
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Name: |
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Title |
- 13 -
Exhibit
D
Warrant B
EXECUTION COPY
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE
“SECURITIES ACT”), OR
ANY STATE SECURITIES LAW, AND MAY
NOT BE OFFERED
FOR
SALE, SOLD OR TRANSFERRED
UNLESS A REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN
EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS IS AVAILABLE IN CONNECTION WITH
SUCH OFFER, SALE OR TRANSFER.
WARRANT
TO PURCHASE COMMON STOCK
OF
TELESECURITY SCIENCES, INC.
Issue Date: January 15, 2015 (“Issue Date”) |
Warrant No. 2015-2 |
THIS CERTIFIES that HOMELAND RESOURCES LTD., a Nevada corporation (the
“Holder”), the
holder of this Warrant (this “Warrant”), has the right to purchase from
TELESECURITY SCIENCES, INC., a Delaware
corporation (the “Company”), the Warrant
Shares (as defined below)
at
a price equal to the Exercise
Price (as defined below), immediately prior
to the consummation of
a Business Combination as such term is defined under
that certain Letter Agreement between the Company and Holder dated as of January 15, 2015 (the “Letter Agreement”), and ending at the earlier of (ii) (A) termination of the Letter Agreement by
Holder or the Company pursuant to Section 13 of the Letter Agreement
or (B) 5:00 p.m.,
New
York City time, on March 31, 2019 (the “Expiration Date”).
In all events, exercise of this
Warrant shall be subject to Holder’s prior payment in full for all 644,257 Partially
Paid Shares and Holder’s prior exercise of Warrant
A and payment in full for all shares thereunder (including the payment in full
of the Secured Promissory Note).
This Warrant is issued pursuant to and subject
to the terms of the Letter Agreement.
All
capitalized terms not defined herein shall have the meanings set forth in the Letter Agreement. For purposes of this Warrant, a “Business Day” shall mean any
day
other than Saturday, a Sunday or a day
on which the New York Stock Exchange is closed or
on which banks in the City of New
York are required
or authorized by law to be closed.
1. Exercise.
(a) Right to Exercise; Exercise Price.
Subject to the terms and conditions set
forth herein, the Holder shall have the right to exercise
this
Warrant at any time and from time
to time during the period commencing
on the Issue Date and ending
on the Expiration Date a
number (the “Warrant
Shares”)
of fully-paid and nonassessable shares
of the Company’s Common
Stock,
par
value $0.0001 per share (the “Common
Stock”), equal to ½ of the amount
of any shares of Common Stock issued by
the Company to persons or entities upon the exercise of
stock options or warrants (other
than shares issued to Holder under Warrant A
or this Warrant) following
the Issue Date and prior to the consummation of a Business Combination (the “Third
Party Warrant Shares”). This Warrant
shall be exercisable for all, but not less than all, of the Warrant Shares. The “Exercise Price” shall be equal ½ of the aggregate exercise price paid to
the Company for all the
Third Party Warrant
Shares.
|
(1) Exercise Notice. In order to exercise this Warrant, the Holder shall deliver, at any time prior to 5:00 p.m. New York City time on the Business Day on which the Holder wishes to effect such exercise (the “Exercise Date”), to the Company an executed copy of the notice of exercise in the form attached hereto as Exhibit A (the “Exercise Notice”) and the Exercise Price payable in in cash upon exercise. The Exercise Notice shall also state the name or names (with address) in which the shares of Common Stock that are issuable on such exercise shall be issued. After delivery of the Exercise Notice, the Holder shall promptly deliver the original warrant to the Company for cancellation. In the case of a dispute as to the calculation of the Exercise Price or the number of Warrant Shares issuable hereunder, the Company shall promptly issue to the Holder the number of Warrant Shares that are not disputed and shall submit the disputed calculations to a certified public accounting firm of national recognition (other than the Company’s independent accountants) promptly following the date on which the Exercise Notice is delivered to the Company. The Company shall cause such accountant to calculate the Exercise Price or the number of Warrant Shares issuable hereunder and to notify the Company and the Holder of the results in writing no later than ten (10) business days following the day on which such accountant received the disputed calculations (the “Dispute Procedure”). Such accountant’s calculation shall be deemed conclusive absent manifest error. The fees of any such accountant shall be borne by the party whose calculations were most at variance with those of such accountant. |
(b) Holder of Record.
The Holder shall for all purposes be deemed to have
become the holder of
record
of the
Warrant
Shares specified
in an Exercise Notice
as
of 5:00
p.m. New York City time on the Exercise Date, irrespective of the date of delivery of such Warrant Shares. Except as specifically
provided herein, nothing in this Warrant shall be
construed as conferring upon the Holder hereof any rights as a stockholder of the Company prior
to the Exercise Date.
(c) Cancellation
of Warrant. This Warrant shall be
canceled
upon its exercise.
2.
Delivery of Warrant Shares Upon Exercise. Upon exercise pursuant to Section
1 of this Warrant,
the Company
shall issue and deliver or caused to be delivered to the Holder the
number of Warrant
Shares
as shall be determined as provided herein within
a reasonable time not to
exceed two Business Days if the Company has appointed a transfer agent to administer its
securities and five Business Days if it has not (the “Delivery Date”). The Company
shall effect
delivery of Warrant Shares to the Holder by delivering to the Holder or its nominee physical certificates representing such Warrant Shares,
no later
than
the close of business
on such Delivery
Date. The certificates representing the Warrant Shares may bear legends in accordance with the legend set
forth on the
face of this Warrant or
applicable law.
3.
Fractional Interests. No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of this Warrant.
If, on exercise of this Warrant, the Holder
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hereof would be entitled to a fractional share of Common Stock the Company shall, in lieu of
issuing any such fractional share, pay to the Holder an amount in cash equal to the product
resulting from multiplying such fraction by
the fair market value of one share of the Company’s
Common Stock as of the Exercise Date, as determined in good faith by the Company’s Board of Directors.
4. Compliance With
Securities Act; Transfers.
(a) The Holder, by acceptance of this Warrant, agrees that this Warrant and the Warrant Shares are
being acquired for investment and that the Holder will not offer, sell, or otherwise dispose of this Warrant or any
Warrant Shares except under circumstances which will
not result in a violation of the Securities Act.
In addition, this Warrant may not be transferred by
Holder except
with the prior written consent
of
the Company. Upon exercise of this Warrant, the holder hereof shall, if requested by
the Company, confirm in writing its investment purpose and
acceptance of the restrictions on transfer of the Warrant Shares.
(b) Subject to such restrictions, the Company shall transfer this Warrant from
time to time upon the books to be maintained by
the Company
for
that purpose, upon surrender thereof for transfer properly endorsed or accompanied by appropriate instructions for transfer and such other documents as may
be reasonably required by
the Company to establish that such
transfer is being made in accordance with the terms hereof, and a new Warrant shall be issued to
the transferee and
the surrendered Warrant shall
be canceled by the Company.
5.
Benefits of this Warrant. This Warrant shall be for the sole and exclusive benefit of the Holder of this Warrant and nothing in this Warrant shall be construed to confer upon any
person other than the Holder of this Warrant any
legal or equitable right, remedy or claim
hereunder.
6.
Legends. The shares of Common Stock issuable upon exercise of this Warrant
and
the shares of Common Stock issuable upon conversion of the Common Stock will
be subject to agreements between the initial Holder hereof and the Company
relating to voting and certain matters. Holder by accepting this warrant acknowledges and agrees that the following
(or a substantially similar) legends will be placed on the certificates
evidencing the Common Stock:
“THE SECURITIES REPRESENTED
HEREBY
HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (THE “SECURITIES ACT”)
OR ANY
APPLICABLE
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED
FOR
SALE, PLEDGED
OR HYPOTHECATED EXCEPT PURSUANT TO REGISTRATION UNDER THE
SECURITIES ACT
OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT
REQUIRED.”
7.
Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the Company
of evidence of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of indemnity
reasonably
satisfactory
to the Company, and upon surrender of
- 3 -
this Warrant,
if mutilated, the Company shall execute and deliver a new Warrant
of like tenor and date.
8.
Notice or Demands. Any notice, demand or request required or permitted to be
given by the Company or the Holder pursuant to the terms of this Warrant shall be in writing
and shall be deemed delivered (i) when delivered personally
or by
verifiable facsimile transmission,
unless such delivery is made on a day that is not a Business Day, in which case such delivery
will be deemed to be
made on the next succeeding Business Day, (ii) on the next Business Day
after timely delivery to a reputable overnight courier, and (iii) on the Business Day actually received if deposited in the
U.S.
mail (certified or registered mail, return receipt requested,
postage prepaid), addressed
as follows:
|
If to the Company:
Telesecurity Sciences, Inc.
7391 Prairie Falcon Road, Suite 150B
Las Vegas, NV 89128 |
|
Attn: Chief Executive Officer
Tel: (702) 227-7327
Fax: (702) 549-3020 |
and if to the Holder, to such address as shall be designated by the Holder in writing to the Company.
9.
Applicable Law. This Warrant is issued under and shall for all purposes be governed by and construed in accordance with the laws of the State of Nevada applicable to contracts made and
to be performed entirely within the State of Nevada.
10.
Amendments. No amendment, modification or other change to, or waiver of any provision of, this Warrant may be made unless such amendment, modification or change is set
forth
in writing and is signed
by
the Company and the Holder.
11.
Entire Agreement. This Warrant constitutes the entire agreement and supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
12.
Headings. The headings in this Warrant are for convenience of reference only and
shall not limit or otherwise
affect the
meaning hereof.
13.
Restrictions. The Holder
acknowledges
that
the shares of Common Stock
acquired upon exercise of this
Warrant, if not
registered, will have restrictions upon resale
imposed by state and federal
securities
laws.
14.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the Holder.
- 4 -
IN WITNESS WHEREOF,
the Company has duly executed and delivered this
Warrant
as of the Issue Date.
|
TELESECURITY
SCIENCES, INC.
a Delaware corporation |
- 5 -
EXHIBIT
A to WARRANT
EXERCISE
NOTICE
The undersigned Holder hereby irrevocably exercises the right to purchase _______ shares of
Common Stock (“Warrant Shares”) of TELESECURITY SCIENCES, INC. evidenced
by the attached Warrant (the “Warrant”), and tenders herewith payment of the purchase price in
full, together
with all applicable transfer
taxes, if
any. Capitalized terms used herein and not otherwise defined
shall have the respective
meanings set
forth in the Warrant.
Date:
______________________________
Name of Registered
Holder
By:
Name:
Title:
EXHIBIT A
Exhibit
E
Delaware
General Corporation Law
§ 156. Partly
paid shares
Any corporation may issue the whole or any
part of its shares as partly paid and subject to call for the remainder of the
consideration to be paid therefor. Upon the face or back of each stock
certificate issued to represent any such partly paid shares, or upon the books
and records of the corporation in the case of uncertified partly paid shares,
the total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated. Upon the declaration of any dividend on fully paid
shares, the corporation shall declare a dividend upon partly paid shares of the
same class, but only upon the basis of the percentage of the consideration
actually paid thereon. (8 Del. C. 1953, § 156; 56 Del. Laws, c. 50; 64 Del.
Laws, c. 112, § 12.)
§ 163. Payment
for stock not paid in full
The capital stock of a corporation shall
be paid for in such amounts and at such times as the directors may require.
The directors may, from time to time, demand payment, in respect of each share
of stock not fully paid, of such sum of money as the necessities of the
business may, in the judgment of the board of directors, require, not exceeding
in the whole the balance remaining unpaid on said stock, and such sum so
demanded shall be paid to the corporation at such times and by such
installments as the directors shall direct. The directors shall give written
notice of the time and place of such payments, which notice shall be mailed at
least 30 days before the time for such payment, to each holder of or subscriber
for stock which is not fully paid at such holder’s or subscriber’s last known
post-office address. (8 Del. C. 1953, § 163; 56 Del. Laws, c. 50; 71 Del.
Laws, c. 339, § 21.)
§ 164. Failure
to pay for stock; remedies
When any stockholder fails to pay any
installment or call upon such stockholder’s stock which may have been properly
demanded by the directors, at the time when such payment is due, the directors
may collect the amount of any such installment or call or any balance thereof
remaining unpaid, from the said stockholder by an action at law, or they shall
sell at public sale such part of the shares of such delinquent stockholder as
will pay all demands then due from such stockholder with interest and all
incidental expenses, and shall transfer the shares so sold to the purchaser,
who shall be entitled to a certificate therefor.
Notice of the time and place of such sale
and of the sum due on each share shall be given by advertisement at least 1
week before the sale, in a newspaper of the county in this State where such
corporation’s registered office is located, and such notice shall be mailed by
the corporation to such delinquent stockholder at such stockholder’s last known
post-office address, at least 20 days before such sale.
If no bidder can be had to pay the amount
due on the stock, and if the amount is not collected by an action at law, which
may be brought within the county where the corporation has its registered
office, within 1 year from the date of the bringing of such action at law, the
said stock and the amount previously paid in by the delinquent stockholder on
the stock shall be forfeited to the corporation. (8 Del. C. 1953, § 164; 56
Del. Laws, c. 50; 59 Del. Laws, c. 106, § 4; 71 Del. Laws, c. 339, § 22.)
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