Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT (the
“Agreement”), dated as of July 15, 2008, by and
between
UBID.COM HOLDINGS, INC. ,
a Delaware corporation (the “Company”), and
FUSION CAPITAL FUND II, LLC ,
an Illinois limited liability company (the “Buyer”).
Capitalized terms used herein and not otherwise defined herein are
defined in Section 10 hereof.
WHEREAS:
Subject
to the terms and conditions set forth in this Agreement, the
Company wishes to sell to the Buyer, and the Buyer wishes to
buy from the Company, up to Ten Million Dollars
($10,000,000.00) of the Company's common stock, par value
$0.001 per share (the “Common Stock”). The shares
of Common Stock to be purchased hereunder are referred to
herein as the "Purchase Shares."
NOW THEREFORE ,
the Company and the Buyer hereby agree as follows:
1.
PURCHASE OF COMMON STOCK.
Subject
to the terms and conditions set forth in this Agreement, the
Company has the right to sell to the Buyer, and the Buyer has
the obligation to purchase from the Company, Purchase Shares
as follows:
(a)
Commencement of Purchases of Common Stock .
The purchase and sale of Purchase Shares hereunder shall occur from
time to time upon written notices by the Company to the Buyer on
the terms and conditions as set forth herein following the
satisfaction of the conditions (the “Commencement”) as
set forth in Sections 6 and 7 below (the date of satisfaction of
such conditions, the "Commencement Date").
(b)
The Company’s Right to Require Purchases
.
Any time on or after the Commencement Date, the Company shall have
the right but not the obligation to direct the Buyer by its
delivery to the Buyer of Base Purchase Notices from time to time to
buy Purchase Shares (each such purchase a “Base
Purchase”) in any amount up to Sixty Thousand Dollars
($60,000.00) per Base Purchase Notice (the “Base Purchase
Amount”) at the Purchase Price on the Purchase Date. The
Company may deliver multiple Base Purchase Notices to the Buyer so
long as at least three (3) Business Days have passed since the most
recent Base Purchase was completed. Notwithstanding the forgoing,
any time on or after the Commencement Date, the Company shall also
have the right but not the obligation by its delivery to the Buyer
of Block Purchase Notices from time to time to direct the Buyer to
buy Purchase Shares (each such purchase a “Block
Purchase”) in any amount up to One Million Dollars
($1,000,000.00) per Block Purchase Notice at the Block Purchase
Price on the Purchase Date as provided herein. For a Block Purchase
Notice to be valid the following conditions must be met: (1) the
Block Purchase Amount shall not exceed One Hundred Thousand Dollars
($100,000.00) per Block Purchase Notice, (2) the Company must
deliver the Purchase Shares before 11:00 a.m. eastern time on the
Purchase Date and (3) the Sale Price of the Common Stock must not
be below $1.25 (subject to equitable adjustment for any
reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction) during the Purchase Date, the date of
the delivery of the Block Purchase Notice and during the Business
Day prior to the delivery of the Block Purchase Notice. The Block
Purchase Amount may be increased to up to Two Hundred Fifty
Thousand Dollars ($250,000.00) per Block Purchase Notice if the
Sale Price of the Common Stock is not below $2.25 (subject to
equitable adjustment for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction) during
the Purchase Date, the date of the delivery of the Block Purchase
Notice and during the Business Day prior to the delivery of the
Block Purchase Notice. The Block Purchase Amount may be increased
to up to Five Hundred Thousand Dollars ($500,000.00) per Block
Purchase Notice if the Sale Price of the Common Stock is not below
$4.50 (subject to equitable adjustment for any reorganization,
recapitalization, non-cash dividend, stock split or other similar
transaction) during the Purchase Date, the date of the delivery of
the Block Purchase Notice and during the Business Day prior to the
delivery of the Block Purchase Notice. The Block Purchase Amount
may be increased to up to One Million Dollars ($1,000,000.00) per
Block Purchase Notice if the Sale Price of the Common Stock is not
below $9.00 (subject to equitable adjustment for any
reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction) during the Purchase Date, the date of
the delivery of the Block Purchase Notice and during the Business
Day prior to the delivery of the Block Purchase Notice. As used
herein, the term “Block Purchase Price” shall mean the
lesser of (i) the lowest Sale Price of the Common Stock on the
Purchase Date or (ii) the lowest Purchase Price during the previous
ten (10) Business Days prior to the date that the valid Block
Purchase Notice was received by the Buyer. However, if at any time
during the Purchase Date, the date of the delivery of the Block
Purchase Notice or during the Business Day prior to the delivery of
the Block Purchase Notice, the Sale Price of the Common Stock is
below the applicable Block Purchase threshold price, such Block
Purchase shall be void and the Buyer’s obligations to buy
Purchase Shares in respect of that Block Purchase Notice shall be
terminated. Thereafter, the Company shall again have the right to
submit a Block Purchase Notice as set forth herein by delivery of a
new Block Purchase Notice only if the Sale Price of the Common
Stock is above the applicable Block Purchase threshold price during
the date of the delivery of the Block Purchase Notice and during
the Business Day prior to the delivery of the Block Purchase
Notice. The Company may deliver multiple Block Purchase Notices to
the Buyer so long as at least two (2) Business Days have passed
since the most recent Block Purchase was completed.
(c)
Payment for Purchase Shares .
The Buyer shall pay to the Company an amount equal to the Purchase
Amount with respect to such Purchase Shares as full payment for
such Purchase Shares via wire transfer of immediately available
funds on the same Business Day that the Buyer receives such
Purchase Shares if they are received by the Buyer before 11:00 a.m.
eastern time or if received by the Buyer after 11:00 a.m. eastern
time, the next Business Day. The Company shall not issue any
fraction of a share of Common Stock upon any purchase. If the
issuance would result in the issuance of a fraction of a share of
Common Stock, the Company shall round such fraction of a share of
Common Stock up or down to the nearest whole share. All payments
made under this Agreement shall be made in lawful money of the
United States of America or wire transfer of immediately available
funds to such account as the Company may from time to time
designate by written notice in accordance with the provisions of
this Agreement. Whenever any amount expressed to be due by the
terms of this Agreement is due on any day that is not a Business
Day, the same shall instead be due on the next succeeding day that
is a Business Day.
(d)
Purchase Price Floor .
The Company and the Buyer shall not effect any sales under this
Agreement on any Purchase Date where the Purchase Price for any
purchases of Purchase Shares would be less than the Floor Price.
“Floor Price” means $0.75, which shall
be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar
transaction.
(e)
Records of Purchases .
The Buyer and the Company shall each maintain records showing the
remaining Available Amount at any give time and the dates and
Purchase Amounts for each purchase or shall use such other method,
reasonably satisfactory to the Buyer and the Company.
(f)
Taxes .
The Company shall pay any and all transfer, stamp or similar taxes
that may be payable with respect to the issuance and delivery of
any shares of Common Stock to the Buyer made under this
Agreement.
2.
BUYER'S REPRESENTATIONS AND WARRANTIES.
The
Buyer represents and warrants to the Company that as of the
date hereof and as of the Commencement Date:
(a)
Investment Purpose .
The Buyer is entering into this Agreement and acquiring the
Commitment Shares, (as defined in Section 4(e) hereof) and the
Purchase Shares (collectively referred to herein as the
"Securities"), for its own account for investment only and not with
a view towards, or for resale in connection with, the public sale
or distribution thereof; provided however, by making the
representations herein, the Buyer does not agree to hold any of the
Securities for any minimum or other specific term other than as set
forth in Section 4(e) with respect to the Commitment
Shares.
(b)
Accredited Investor Status .
The Buyer is an "accredited investor" as that term is defined in
Rule 501(a)(3) of Regulation D.
(c)
Reliance on Exemptions .
The Buyer understands that the Securities are being offered and
sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and
that the Company is relying in part upon the truth and accuracy of,
and the Buyer's compliance with, the representations, warranties,
agreements, acknowledgments and understandings of the Buyer set
forth herein in order to determine the availability of such
exemptions and the eligibility of the Buyer to acquire the
Securities.
(d)
Information .
The Buyer has been furnished with all materials relating to the
business, finances and operations of the Company and materials
relating to the offer and sale of the Securities that have been
reasonably requested by the Buyer, including, without limitation,
the SEC Documents (as defined in Section 3(f) hereof). The Buyer
understands that its investment in the Securities involves a high
degree of risk. The Buyer (i) is able to bear the economic risk of
an investment in the Securities including a total loss, (ii) has
such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an
opportunity to ask questions of and receive answers from the
officers of the Company concerning the financial condition and
business of the Company and others matters related to an investment
in the Securities. Neither such inquiries nor any other due
diligence investigations conducted by the Buyer or its
representatives shall modify, amend or affect the Buyer's right to
rely on the Company's representations and warranties contained in
Section 3 below. The Buyer has sought such accounting, legal and
tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the
Securities.
(e)
No Governmental Review .
The Buyer understands that no United States federal or state agency
or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Securities or the
fairness or suitability of the investment in the Securities nor
have such authorities passed upon or endorsed the merits of the
offering of the Securities.
(f)
Transfer or Sale .
The Buyer understands that except as provided in the Registration
Rights Agreement (as defined in Section 4(a) hereof): (i) the
Securities have not been and are not being registered under the
1933 Act or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (A) subsequently
registered thereunder or (B) an exemption exists permitting such
Securities to be sold, assigned or transferred without such
registration; (ii) any sale of the Securities made in reliance on
Rule 144 may be made only in accordance with the terms of Rule 144
and further, if Rule 144 is not applicable, any resale of the
Securities under circumstances in which the seller (or the person
through whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the 1933 Act) may require compliance
with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder; and (iii) neither the Company
nor any other person is under any obligation to register the
Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption
thereunder.
(g)
Validity; Enforcement .
This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable against the Buyer in accordance
with its terms, subject as to enforceability to general principles
of equity and to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors'
rights and remedies.
(h)
Residency .
The Buyer is a resident of the State of Illinois.
(i)
No Prior Short Selling .
The Buyer represents and warrants to the Company that at no time
prior to the date of this Agreement has any of the Buyer, its
agents, representatives or affiliates engaged in or effected, in
any manner whatsoever, directly or indirectly, any (i) "short sale"
(as such term is defined in Section 242.200 of Regulation SHO of
the Securities Exchange Act of 1934, as amended (the "1934 Act"))
of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
The
Company represents and warrants to the Buyer that as of the
date hereof and as of the Commencement Date:
(a)
Organization and Qualification .
The Company and its "Subsidiaries" (which for purposes of this
Agreement means any entity in which the Company, directly or
indirectly, owns 50% or more of the voting stock or capital stock
or other similar equity interests) are corporations duly organized
and validly existing in good standing under the laws of the
jurisdiction in which they are incorporated, and have the requisite
corporate power and authority to own their properties and to carry
on their business as now being conducted. Each of the Company and
its Subsidiaries is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which its
ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing could not
reasonably be expected to have a Material Adverse Effect. As used
in this Agreement, "Material Adverse Effect" means any material
adverse effect on any of: (i) the business, properties, assets,
operations, results of operations or financial condition of the
Company and its Subsidiaries, if any, taken as a whole, or (ii) the
authority or ability of the Company to perform its obligations
under the Transaction Documents (as defined in Section 3(b)
hereof). The Company has no Subsidiaries except as set forth on
Schedule 3(a).
(b)
Authorization; Enforcement; Validity .
(i) The Company has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement, the
Registration Rights Agreement and each of the other agreements
entered into by the parties on the Commencement Date and attached
hereto as exhibits to this Agreement (collectively, the
"Transaction Documents"), and to issue the Securities in accordance
with the terms hereof and thereof, (ii) the execution and delivery
of the Transaction Documents by the Company and the consummation by
it of the transactions contemplated hereby and thereby, including
without limitation, the issuance of the Commitment Shares and the
reservation for issuance and the issuance of the Purchase Shares
issuable under this Agreement, have been duly authorized by the
Company's Board of Directors and no further consent or
authorization is required by the Company, its Board of Directors or
its shareholders, (iii) this Agreement has been, and each other
Transaction Document shall be on the Commencement Date, duly
executed and delivered by the Company and (iv) this Agreement
constitutes, and each other Transaction Document upon its execution
on behalf of the Company, shall constitute, the valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors'
rights and remedies. The Board of Directors of the Company has
approved the resolutions (the “Signing Resolutions”)
substantially in the form as set forth as
Exhibit C-1 attached
hereto to authorize this Agreement and the transactions
contemplated hereby. The Signing Resolutions are valid, in full
force and effect and have not been modified or supplemented in any
respect other than by the resolutions set forth in
Exhibit C-2 attached
hereto regarding the registration statement referred to in Section
4 hereof. The Company has delivered to the Buyer a true and correct
copy of a unanimous written consent adopting the Signing
Resolutions executed by all of the members of the Board of
Directors of the Company. No other approvals or consents of the
Company’s Board of Directors and/or shareholders is necessary
under applicable laws and the Company’s Certificate of
Incorporation and/or Bylaws to authorize the execution and delivery
of this Agreement or any of the transactions contemplated hereby,
including, but not limited to, the issuance of the Commitment
Shares and the issuance of the Purchase Shares.
(c)
Capitalization .
As of the date hereof, the authorized capital stock of the Company
consists of (i) 200,000,000 shares of Common Stock, of which as of
the date hereof, 18,197,783 shares are issued and outstanding,
2,135,550 are held as treasury shares, 2,500,000 shares are
reserved for issuance pursuant to the Company's stock option plans
of which only approximately 1,402,000 shares remain available for
future grants and 3,232,939 shares are issuable and reserved for
issuance pursuant to securities (other than stock options issued
pursuant to the Company's stock option plans) exercisable or
exchangeable for, or convertible into, shares of Common Stock and
(ii) 25,000,000 shares of Preferred Stock, $0.001 par value, of
which as of the date hereof no shares are issued and outstanding.
All of such outstanding shares have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Except as
disclosed in Schedule 3(c), (i) no shares of the Company's capital
stock are subject to preemptive rights or any other similar rights
or any liens or encumbrances suffered or permitted by the Company,
(ii) there are no outstanding debt securities, (iii) there are no
outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock
of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional
shares of capital stock of the Company or any of its Subsidiaries
or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities
or rights convertible into, any shares of capital stock of the
Company or any of its Subsidiaries, (iv) there are no agreements or
arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the
1933 Act (except the Registration Rights Agreement), (v) there are
no outstanding securities or instruments of the Company or any of
its Subsidiaries which contain any redemption or similar
provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is
or may become bound to redeem a security of the Company or any of
its Subsidiaries, (vi) there are no securities or instruments
containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities as described in this
Agreement and (vii) the Company does not have any stock
appreciation rights or "phantom stock" plans or agreements or any
similar plan or agreement. The Company has furnished to the Buyer
true and correct copies of the Company's Certificate of
Incorporation, as amended and as in effect on the date hereof (the
"Certificate of Incorporation"), and the Company's By-laws, as
amended and as in effect on the date hereof (the "By-laws"), and
summaries of the terms of all securities convertible into or
exercisable for Common Stock, if any, and copies of any documents
containing the material rights of the holders thereof in respect
thereto.
(d)
Issuance of Securities .
The Commitment Shares have been duly authorized and, upon issuance
in accordance with the terms hereof, the Commitment Shares shall be
(i) validly issued, fully paid and non-assessable and (ii) free
from all taxes, liens and charges with respect to the issue
thereof. 2,000,000 shares of Common Stock have been duly authorized
and reserved for issuance upon purchase under this Agreement.
230,074 shares of Common Stock (subject to equitable adjustment for
any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction) have been duly authorized and
reserved for issuance as Additional Commitment Shares in accordance
with Section 4(e) this Agreement.
Upon
issuance and payment therefor in accordance with the terms and
conditions of this Agreement, the Purchase Shares shall be validly
issued, fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common
Stock.
(e)
No Conflicts .
Except as disclosed in Schedule 3(e), the execution, delivery and
performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby (including, without limitation, the reservation for
issuance and issuance of the Purchase Shares) will not (i) result
in a violation of the Certificate of Incorporation, any Certificate
of Designations, Preferences and Rights of any outstanding series
of preferred stock of the Company or the By-laws or (ii) conflict
with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree
(including federal and state securities laws and regulations and
the rules and regulations of the Principal Market applicable to the
Company or any of its Subsidiaries) or by which any property or
asset of the Company or any of its Subsidiaries is bound or
affected, except in the case of conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations under
clause (ii), which could not reasonably be expected to result in a
Material Adverse Effect. Except as disclosed in Schedule 3(e),
neither the Company nor its Subsidiaries is in violation of any
term of or in default under its Certificate of Incorporation, any
Certificate of Designation, Preferences and Rights of any
outstanding series of preferred stock of the Company or By-laws or
their organizational charter or by-laws, respectively. Except as
disclosed in Schedule 3(e), neither the Company nor any of its
Subsidiaries is in violation of any term of or is in default under
any material contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its Subsidiaries,
except for possible conflicts, defaults, terminations or amendments
which could not reasonably be expected to have a Material Adverse
Effect. The business of the Company and its Subsidiaries is not
being conducted, and shall not be conducted, in violation of any
law, ordinance, regulation of any governmental entity, except for
possible violations, the sanctions for which either individually or
in the aggregate could not reasonably be expected to have a
Material Adverse Effect. Except as specifically contemplated by
this Agreement and as required under the 1933 Act or applicable
state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or
registration with, any court or governmental agency or any
regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under or contemplated by
the Transaction Documents in accordance with the terms hereof or
thereof. Except as disclosed in Schedule 3(e), all consents,
authorizations, orders, filings and registrations which the Company
is required to obtain pursuant to the preceding sentence shall be
obtained or effected on or prior to the Commencement Date. Except
as listed in Schedule 3(e), since January 1, 2007, the Company has
not received nor delivered any notices or correspondence from or to
the Principal Market. The Principal Market has not commenced any
delisting proceedings against the Company.
(f)
SEC Documents; Financial Statements .
Except as disclosed in Schedule 3(f), since January 1, 2007, the
Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the 1934 Act (all of the
foregoing filed prior to the date hereof and all exhibits included
therein and financial statements and schedules thereto and
documents incorporated by reference therein being hereinafter
referred to as the "SEC Documents"). As of their respective dates
(except as they have been correctly amended), the SEC Documents
complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC (except as they may have been
properly amended), contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. As of their respective dates (except as they have been
properly amended), the financial statements of the Company included
in the SEC Documents complied as to form in all material respects
with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of
unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments). Except
as listed in Schedule 3(f), the Company has received no notices or
correspondence from the SEC since January 1, 2007. The SEC has not
commenced any enforcement proceedings against the Company or any of
its subsidiaries.
(g)
Absence of Certain Changes .
Except as disclosed in Schedule 3(g), since March 31, 2008, there
has been no material adverse change in the business, properties,
operations, financial condition or results of operations of the
Company or its Subsidiaries. The Company has not taken any steps,
and does not currently expect to take any steps, to seek protection
pursuant to any Bankruptcy Law nor does the Company or any of its
Subsidiaries have any knowledge or reason to believe that its
creditors intend to initiate involuntary bankruptcy
or
insolvency proceedings. The Company is financially solvent and is
generally able to pay its debts as they become due
.
(h)
Absence of Litigation .
Except as disclosed on Schedule 3(h), there is no action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against or affecting the Company, the
Common Stock or any of the Company's Subsidiaries or any of the
Company's or the Company's Subsidiaries' officers or directors in
their capacities as such, which could reasonably be expected to
have a Material Adverse Effect. A description of each action, suit,
proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body
which, as of the date of this Agreement, is pending or threatened
in writing against or affecting the Company, the Common Stock or
any of the Company's Subsidiaries or any of the Company's or the
Company's Subsidiaries' officers or directors in their capacities
as such, is set forth in Schedule 3(h).
(i)
Acknowledgment Regarding Buyer's Status .
The Company acknowledges and agrees that the Buyer is acting solely
in the capacity of arm's length purchaser with respect to the
Transaction Documents and the transactions contemplated hereby and
thereby. The Company further acknowledges that the Buyer is not
acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to the Transaction Documents and
the transactions contemplated hereby and thereby and any advice
given by the Buyer or any of its representatives or agents in
connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to the Buyer's
purchase of the Securities. The Company further represents to the
Buyer that the Company's decision to enter into the Transaction
Documents has been based solely on the independent evaluation by
the Company and its representatives and advisors.
(j)
No General Solicitation .
Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of
Regulation D under the 1933 Act) in connection with the offer or
sale of the Securities.
(k)
Intellectual Property Rights .
To the knowledge of the Company and its Subsidiaries, the Company
and its Subsidiaries own or possess adequate rights or licenses to
use all material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights necessary to conduct their
respective businesses as now conducted. Except as set forth on
Schedule 3(k), none of the Company's material trademarks, trade
names, service marks, service mark registrations, service names,
patents, patent rights, copyrights, inventions, licenses,
approvals, government authorizations, trade secrets or other
intellectual property rights have expired or terminated, or, by the
terms and conditions thereof, could expire or terminate within two
years from the date of this Agreement. The Company and its
Subsidiaries do not have any knowledge of any infringement by the
Company or its Subsidiaries of any material trademark, trade name
rights, patents, patent rights, copyrights, inventions, licenses,
service names, service marks, service mark registrations, trade
secret or other similar rights of others, or of any such
development of similar or identical trade secrets or technical
information by others and, except as set forth on
Sched
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