EXHIBIT
10.3
COMMON STOCK PURCHASE
AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT
(“Agreement”) is entered into and effective as of
November 28, 2008 (the “Effective Date”), by and
between YA GLOBAL INVESTMENTS, L.P. (the “Seller”) and
HOMELAND SECURITY CAPITAL CORPORATION (the
“Buyer”).
RECITALS
A. Seller owns and wishes to sell,
1,526,937 shares of issued and outstanding Buyer common stock, par
value, $.001 per share (the “Shares”).
B. Buyer desires to purchase the
Shares from Seller, and Seller desires to sell the Shares to Buyer,
on the terms and conditions specified herein.
NOW, THEREFORE , in consideration of the covenants,
representations and warranties contained herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I.
PURCHASE AND
SALE
1.1. Recitals. The recitals to
this Agreement are hereby incorporated into and made a part of this
Agreement.
1.2. Purchase and Sale .
Seller shall sell, transfer and deliver to Buyer all of
Seller’s right, title, and interest in the Shares. Except as
stated herein, Buyer’s obligation to purchase the Shares and
Seller’s obligation to sell the Shares shall be irrevocable,
absolute and unconditional, subject only to the terms and
conditions of this Agreement.
1.3. Purchase Terms . In full
consideration for the sale, transfer, and delivery of the Shares,
Buyer shall pay to Seller an amount equal to $71,344.75 (the
“Purchase Price”). On the Closing Date (as defined
below), Buyer shall pay Seller the amount of the Purchase Price in
the form of a Promissory Note in substantially the form attached as
Exhibit A hereto.
ARTICLE II.
CLOSING AND CLOSING DATE
2.1. Closing Date . The
closing of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of the
Company on November 28, 2008, or such earlier date as to which the
parties may agree (the “Closing Date”).
2.2. Closing Documents . The
following documents, duly executed and (where appropriate)
acknowledged, shall be delivered by the applicable party on the
Closing Date:
(a) a stock power to transfer the
Shares, and a certificate confirming, as of the Closing Date, all
of the Seller’s representations and warranties under this
Agreement, both executed by Seller;
(b) an Escrow Agreement in the form
attached as Exhibit B hereto executed by both parties;
(c) the Stock Pledge Agreement;
(d) the Note; and
(e) Any and all other instruments or
documents necessary to comply with and carry out the terms and
provisions of this Agreement; provided, however, that no such
documents shall expand any obligations or liabilities of Seller
beyond that set forth in this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; SELLER COVENANTS
3.1. Seller’s
Representations and Warranties . The Seller hereby represents
and warrants to Buyer on the date of this Agreement and as of the
Closing Date as follows:
(a) This Agreement constitutes and,
upon execution, the documents executed by Seller at Closing will
constitute, valid and legally binding obligations of Seller,
enforceable in accordance with its respective terms except as may
be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or
affecting the enforcement of creditors’ rights generally and
(ii) the effect of rules of law governing the availability of
equitable remedies.
(b) Seller has good and valid title to
all of the Shares, free and clear of any and all Encumbrances
whatsoever, and none of such Shares is subject to any outstanding
option, warrant, call, or similar right of any other Person to
acquire the same, and none of such Shares is subject to any
restriction on transfer thereof except for restrictions under
applicable federal and state securities Laws. Upon consummation of
the transactions contemplated hereby in accordance with the terms
hereof, the Seller will convey good and valid title to the Buyer of
all of the Shares, free and clear of any and all Encumbrances
whatsoever, except for restrictions on transfer under applicable
federal and state securities Laws.
(c) Neither the execution of this
Agreement nor the consummation of the transactions contemplated by
this Agreement does or will constitute a breach or default (or with
the lapse of time and/or the receipt of notice would constitute a
breach or default) under any contract or commitment to which the
Seller or any of its properties or assets are bound.
(d) Seller has obtained all approvals
and consents which may be necessary or desirable to consummate the
transactions contemplated in this Agreement. No other consent,
approval, or waiver of any Person is required to be made in
connection with the execution, delivery or performance of this
Agreement by Seller.
(e) There are no (i) outstanding calls
or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to
the sale or issuance of the Shares, or (ii) Encumbrances, rights of
first refusal, rights of first offer, proxies, voting trusts, or
voting agreements with respect to the Shares or obligations to
repurchase or otherwise acquire the Shares pursuant to any
agreement to which the Seller is or may be bound.
3.2. Buyer’s Representations
and Warranties . The Buyer hereby represents and warrants to,
and agrees with, the Seller that:
(a) This Agreement constitutes and,
upon execution, the documents executed by the Buyer at Closing will
constitute, valid and legally binding obligations of the Buyer that
is a party thereto, enforceable in accordance with their respective
terms except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights
generally and (ii) the effect of rules of law governing the
availability of equitable remedies.
(b) Neither the execution of this
Agreement nor the consummation of the transactions contemplated by
this Agreement does or will constitute a breach or default (or with
the lapse of time and/or the receipt of notice would constitute a
breach or default) under any contract or commitment to which the
Buyer is a party or by which the Buyer and/or any of its property
is bound.
(c) Buyer has obtained all approvals
and consents which may be necessary or desirable to consummate the
transactions contemplated in this Agreement. No other consent,
approval, waiver or authorization of, or registration,
qualification or filing with or notice to any federal, state or
local governmental or regulatory authority, or an
