Exhibit 10.3
INVESTOR PURCHASE
AGREEMENT
Investor Purchase Agreement ("
Agreement ") dated as of January 13, 2009 between Flight
Safety Technologies, Inc., a Nevada corporation (the "
Company ") and the investors listed on Exhibit A
hereto (each, a "Purchaser" and collectively, the "
Purchasers ").
W I T N E S S
E T H :
Whereas, the Company desires to
sell and issue to the Purchasers, and the Purchasers wish to
purchase from the Company, severally, and not jointly, an aggregate
of up to 5,000 shares of the Company's Series A Convertible
Preferred Stock, par value $.001 per share (" Preferred
Shares ") on the Closing Date (as such term is defined below);
and
Whereas, the Preferred Shares shall have the rights,
designations and preferences set forth in the Certificate of
Designations (the " Certificate ") in the form of Exhibit
1.1A attached hereto, and shall be convertible into shares ("
Common Shares "), of the Company's common stock, par value
$.001 par share (" Common Stock );
Now,
Therefore, in consideration of the foregoing premises and the
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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Purchase and Sale of Series A Convertible Preferred
Shares
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Issuance of Preferred Shares .
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Issuance . On the Closing Date (as
such term is defined below), and upon the following terms and
conditions, the Company shall issue and sell to the Purchasers, and
the Purchasers shall purchase from the Company, severally, and not
jointly, the number of Preferred Shares registered in the name of
the Purchasers as indicated on Exhibit A .
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Purchase Price. The purchase price for
the Preferred Shares to be acquired by each of the Purchasers (the
" Purchase Price ") shall be the aggregate purchase price
set forth opposite such Purchaser's name on Exhibit A .
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Closing .
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The closing of the purchase and sale of the
Preferred Shares (the " Closing ") shall take place at the
offices of Tobin, Carberry, O'Malley, Riley & Selinger, P.C.,
43 Broad Street, New London, CT 06320-0058 (the "Company's
Counsel" ) at 10:00 am. local time on the date on which the
last to be fulfilled or waived of the conditions set forth in
Article 4 hereof and applicable to the Closing shall be fulfilled
or waived in accordance herewith. The date on which the Closing
occurs is referred to herein as the " Closing Date ".
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On the Closing Date, the Purchasers shall
pay the purchase price set forth opposite such Purchaser's name on
Exhibit A in cash or, in the case of certain Purchasers who
are purchasing an aggregate of 1,000 Preferred Shares and are
employees of the Company, by a combination of cash and a promissory
note in substantially the form attached as Exhibit
1.1(c)(ii) (each, an " Employee Promissory Note
").
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On the Closing Date, the Company shall deliver to Pacific Stock
Transfer Company, the stock registrar and transfer agent for the
Company, irrevocable instructions to register the number of
Preferred Shares set forth opposite each Purchaser's name on
Exhibit A in the name of such Purchaser and to immediately
deliver to each Purchaser one or more certificates (as reasonably
requested by such Purchaser) representing, in the aggregate, the
number of Preferred Shares set forth opposite such Purchaser's name
on Exhibit A in the name of such Purchaser. In addition,
each party shall deliver all documents, instruments and writings
required to be delivered by such party pursuant to this Agreement
at or prior to the Closing.
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Representations and Warranties
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Representations and Warranties of the
Company . The Company hereby makes the following
representations and warranties to the Purchasers as of the date
hereof and as of the Closing Date:
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Organization and Qualification; Material
Adverse Effect. The Company is a corporation duly incorporated
and existing in good standing under the laws of the State of Nevada
and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company does not
have any direct or indirect subsidiaries (defined as any entity of
which the Company owns, directly or indirectly, 50% or more of the
equity or voting power) other than the subsidiaries listed on
Schedule 2.1(a) attached hereto. The subsidiaries listed on
Schedule 2.1(a) hereto are direct subsidiaries wholly owned by the
Company, and there are no outstanding shares, options, warrants or
other rights to subscribe for or acquire any capital stock in such
subsidiaries except outstanding common stock in such subsidiaries
held by the Company. Except where specifically indicated to the
contrary, all references in this Agreement to subsidiaries shall be
deemed to refer to all direct and indirect subsidiaries of the
Company. Except where specifically indicated to the contrary, all
references in this Article 2 to the Company shall be deemed to
refer to the Company and its consolidated subsidiaries. Except as
for Schedule 2.1(b) , 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 the
nature of the business conducted or property owned by it makes such
qualification necessary other than those in which the failure so to
qualify would not have a Material Adverse Effect. " Material
Adverse Effect " with respect to any entity means any adverse
effect on the business, operations, properties or financial
condition of the entity with respect to which such term is used and
which is (either alone or together with all other adverse effects)
material to such entity and its subsidiaries taken as a whole, and
any material adverse effect on the transactions contemplated under
Transaction Documents (as defined below).
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Authorization; Enforcement. (i) The
Company has all requisite corporate power and authority to enter
into and perform this Agreement and the Certificate (the "
Transaction Documents ") and to issue the Preferred Shares
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 the issuance of the Preferred Shares and Common
Shares, have been duly authorized by all necessary corporate
action, and no further consent or authorization of the Company or
its Board of Directors (or any committee or subcommittee thereof)
is necessary, (iii) the Transaction Documents have been duly
executed and delivered by the Company and (iv) the Transaction
Documents constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of
creditors' rights and remedies or by other equitable principles of
general application.
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Capitalization. The authorized
capital stock of the Company consists of 50 million shares of
Common Stock and 5 million shares of preferred stock; as of October
17, 2008 there were 8,684,646 shares of Common Stock issued and
outstanding; prior to giving effect to the transactions completed
by this Agreement, there are no shares of preferred stock issued or
outstanding; and, except as set forth on Schedule 2.1(c) or
in the Pre-Agreement SEC Documents (as such term is defined below),
no shares of Common Stock and no shares of preferred stock were
reserved for issuance to persons other than the Purchasers or
Cummins Family Limited Partnership (as such term is defined below).
All of the outstanding shares of the Company's Common Stock have
been validly issued and are fully paid and nonassessable. No shares
of capital stock are entitled to preemptive rights and, except as
set forth in the Pre-Agreement SEC Documents, there are no
outstanding options and outstanding warrants for shares of Common
Stock. Except as set forth on Schedule 2.1(c)(i) or in the
Pre-Agreement SEC Documents, there are no other scrip, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights exchangeable for or
convertible into, any shares of capital stock of the Company, or
contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of
capital stock of the Company or options, warrants, scrip, rights to
subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible or exchangeable into shares, of
capital stock of the Company. There are no scrip, rights to
subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights exchangeable for or
convertible into, any shares of capital stock of the subsidiaries
of the Company, or contracts, commitments, understandings, or
arrangements by which the subsidiaries of the Company is or may
become bound to issue additional shares of capital stock of the
subsidiaries of the Company or options, warrants, scrip, rights to
subscribe to, or commitments to purchase or acquire, any shares, or
securities or rights convertible or exchangeable into shares, of
capital stock of the subsidiaries of the Company. Attached hereto
as Exhibit 2.1(c)(ii) is a true and correct copy of the
Company's Articles of Incorporation (the " Charter "), as in
effect on the date hereof, and attached hereto as Exhibit
2.1(c)(iii) is a true and correct copy of the Company's
By-Laws, as in effect on the date hereof (the " By-Laws ").
Attached hereto as Exhibit 2.1(c)(iv) is a true and correct
copy of the Articles of Incorporation of Advanced Plasma Products,
Inc. (the " Subsidiary Charter "), as in effect on
the date hereof, and attached hereto as Exhibit 2.1(c)(v) is
a true and correct copy of the By-Laws of Advanced Plasma Products,
Inc., as in effect on the date hereof (the "Subsidiary
By-Laws "). All corporate minute books and records of the
Company and its subsidiaries have been made available for
inspection by the Purchasers. The corporate minute books and
records of the Company and its subsidiaries contain all material
resolutions adopted by the stockholders or the board of directors
of the Company and its subsidiaries. The Company and its
subsidiaries' books, accounts and records are, and have been,
maintained in the Company and its subsidiaries' usual, regular and
ordinary manner, in accordance with generally accepted accounting
principles and all material transactions to which either the
Company or its subsidiaries is or has been a party are properly
reflected therein.
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Issuance of Common Shares. The
Preferred Shares and Common Shares are duly authorized and reserved
for issuance and, upon issuance in accordance with terms of this
Agreement, the Certificate, and the Preferred Shares, respectively,
such Preferred Shares and Common Shares, as the case may be, will
be validly issued, fully paid and non-assessable, free and clear of
any and all liens and claims and the holders of such Preferred
Shares and Common Shares shall be entitled to all rights and
preferences accorded to a holder of Preferred Shares and Common
Stock, as the case may be. The Common Stock
is currently traded on the Over-the-Counter
market.
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No Conflicts. The execution, delivery
and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby
and thereby, the issuance of the Preferred Shares and the issuance
of Common Shares do not and will not (i) result in a violation of
the Company's Charter or By-Laws or (ii) except as set forth on
Schedule 2.1(e) , 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, patent, patent license or material instrument to which
the Company or any of its subsidiaries is a party (collectively, "
Company Agreements ") except for such conflicts, defaults or
rights of termination, amendment, acceleration or cancellation
which would not have a Material Adverse Effect, or (iii) result in
a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state
securities laws and regulations) 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
(other than in the case of clause (i) above) where such violation
would not reasonably be expected to have a Material Adverse Effect.
The business of the Company and its direct and indirect
subsidiaries is being conducted in compliance with (i) its Charter
and By-Laws, (ii) the Subsidiary Charter and Subsidiary By-Laws (as
applicable), (iii) all Company Agreements (except where such
violation would not reasonably be expected to have a Material
Adverse Effect) and (iv) all applicable laws, ordinances or
regulations of any governmental entity (except as
disclosed in the reports or documents filed at least 5 business
days prior to the Closing Date by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act (the "Pre-Agreement SEC
Documents" ) or where such violation would not reasonably be
expected to have a Material Adverse Effect) . Except for
filings, consents and approvals required under applicable state and
federal securities laws or as specifically contemplated by this
Agreement, the Company is not required under federal, state, local
or foreign law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or
the Certificate or to issue and sell the Preferred Shares or the
Common Shares issuable upon conversion thereof.
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SEC Documents; No Non-Public Information;
Financial Statements. The Common Stock is registered pursuant
to Section 12(b) of the Exchange Act and the Company and its
subsidiaries have filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Securities
and Exchange Commission (" SEC ") pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended
(the " Exchange Act "), including all such proxy
information, solicitation statements and registration statements,
and any amendments thereto required to have been filed (all of the
foregoing including filings incorporated by reference therein being
referred to herein as the " SEC Documents ") except where
the failure to make such filings (i) would not have a Material
Adverse Effect on the Company and (ii) would not now or in the
future negatively impact the ability of shareholders of the Company
to sell shares of Common Stock pursuant to Rule 144 under the
Exchange Act. As of their respective dates,
the SEC Documents complied in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the SEC promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such SEC Documents and,
as of the date they were filed, none of the SEC Documents 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. The SEC Documents contain all
material information concerning the Company and its subsidiaries
required to be filed, and no event or circumstance has occurred
prior to the date hereof which would require the Company to
disclose such event or circumstance in order to make the statements
in the SEC Documents not misleading or which, under applicable law,
rule or regulation, requires public disclosure by the Company, but
which has not, or will have not, been so disclosed.
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Financial Statements. The financial
statements of the Company and its subsidiaries included in the SEC
Documents comply in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (except in the
case of unaudited interim statements, to the extent they may not
include footnotes, may be condensed or summary statements) and
fairly present in all material respects the financial position of
the Company and its subsidiaries as of the dates thereof and the
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments). The audited financial statements of each of the
Company and its subsidiaries for the fiscal year ending May 31,
2008 have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during
the periods involved (except in the case of unaudited interim
statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material
respects the financial position of the Company and its
subsidiaries, as the case may be, as of the dates thereof and the
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments).
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Principal Exchange/Market. The Common
Stock is currently traded on the over-the-counter market.
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No Material Adverse Change. Since
August 31, 2008 (other than as set forth in the Pre-Agreement SEC
Documents or on Schedule 2.1(i) ), no Material Adverse
Effect has occurred or exists, and no event or circumstance has
occurred, to the Company's knowledge, that with notice or the
passage of time or both the Company believes is reasonably likely to result in a
Material Adverse Effect with respect to the Company or its
subsidiaries.
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No Undisclosed Liabilities . The
Company and its subsidiaries have no liabilities or obligations not
disclosed in the Pre-Agreement SEC Documents (as defined below),
other than those liabilities incurred in the ordinary course of the
Company's or its subsidiaries' respective businesses since August
31, 2008, which liabilities, individually or in the aggregate, do
not or would not have a Material Adverse Effect on the Company or
its direct or indirect subsidiaries.
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Sarbanes-Oxley Act . The Company is in compliance with
any and all applicable requirements of the Sarbanes-Oxley Act of
2002 and any and all applicable rules and regulations, promulgated
by the SEC thereunder, except where such non-compliance would not
have, individually or in the aggregate, a Material Adverse
Effect.
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No General Solicitation. Neither the
Company, nor any of its affiliates, or, to its knowledge, 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 Securities Act) in connection with the offer
or sale of the Preferred Shares and Common Shares.
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No Integrated Offering. Neither the
Company, nor any of its affiliates, nor to its knowledge any person
acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of
the Preferred Shares and the Common Shares under the Act.
The issuance of
the Preferred Shares and Common Shares to the Purchasers will not
be integrated with any other issuance of the Company's securities
(past, current or future) which requires stockholder approval
(except where such approval is obtained).
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[Intentionally omitted].
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Intellectual Property. The Company
and/or its wholly-owned subsidiaries owns or has licenses to use
certain patents, copyrights and trademarks (" intellectual
property ") necessary for the conduct of its business , except as set forth on in the Pre-Agreement SEC
Documents . The Company and its
subsidiaries have all intellectual property rights which it
believes are needed to conduct the business of the Company and its
subsidiaries as it is now being conducted or as proposed to be
conducted as disclosed in the Pre-Agreement SEC Documents. The
Company and its subsidiaries have no reason to believe that the
material intellectual property rights which it owns are invalid or
unenforceable. To the Company's knowledge, except as set forth in the Pre-Agreement SEC Documents , the use of such intellectual property by the
Company or its subsidiaries does not infringe upon or conflict with
any right of any third party, and neither the Company nor any of
its subsidiaries has received notice of any such infringement or
conflict, which individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect. Except as set forth
in the Pre-Agreement SEC Documents , the Company and its subsidiaries have no knowledge
of any infringement of its intellectual property by any third party
that is expected to have a Material Adverse Effect.
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No Litigation. Except as set forth on
Schedule 2.1(p) , no litigation or claim (including those
for unpaid taxes) against the Company or any of its subsidiaries
which could reasonably be expected to have a Material Adverse
Effect on the Company or could reasonably be expected to materially
and adversely affect the transactions contemplated by the
Transaction Documents is pending or, to the Company's knowledge,
threatened, and to the Company's knowledge, no other event has
occurred, which could reasonably be expected to have a Material
Adverse Effect on the Company or could reasonably be expected to
materially and adversely affect the transactions contemplated
hereby. There is no legal proceeding described in the Pre-Agreement
SEC Documents that could reasonably be expected to have a Material
Adverse Effect on the Company.
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Brokers. Except as set forth on
Schedule 2.1(q) , the Company has taken no action which
would give rise to any claim by any person for brokerage
commissions, finder's fees or similar payments by the Company or
any Purchaser relating to this Agreement or the transactions
contemplated hereby.
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Other Purchasers. Except as set forth
on Schedule 2.1(r)(i) (or in the Pre-Agreement SEC
Documents), there are no outstanding securities issued or issuable
by the Company that are entitled to registration rights under the
Act. Other than the Preferred Shares and except as set forth on
Schedule 2.1(r)(ii) (or the Pre-Agreement SEC Documents
solely with respect to clause (i)) there are no outstanding
securities issued by the Company (i) that are directly or
indirectly convertible into, exercisable into, or exchangeable for,
shares of Common Stock of the Company, or (ii) that have
anti-dilution or similar rights that would be affected by the
issuance of the Preferred Shares or the Common Shares .
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Certain Transactions . Other than in connection with this
Agreement and the CFP Purchase Agreement (as such term is defined
below), and except as disclosed in the Pre-Agreement SEC Documents
and Schedule 2.1(s) , none of the officers, directors, or
key employees of the Company is presently a party to any
transaction with the Company or any of its subsidiaries (other than
for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or
from any officer, director or such employee or, to the knowledge of
the Company, any corporation, partnership, trust or other entity in
which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner.
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Taxes. Since May 31, 2008, all
federal, state, city and other tax returns, reports and
declarations required to be filed or extended by or on behalf of
the Company and each of its subsidiaries have been filed or
extended and all such filed returns are complete and accurate in
all material respects, and disclose all taxes required to be paid
in the periods covered thereby. All taxes required to be withheld
by or on behalf of the Company or any such subsidiary in connection
with amounts paid or owing to any employees, independent
contractor, creditor or other party have been withheld, and such
withheld taxes have either been duly and timely paid to the proper
governmental authorities or set aside in accounts for such
purposes.
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No Reliance on Purchasers. The
Company acknowledges and agrees that Purchasers are acting solely
in the capacity of an arm's length purchaser with respect to this
Agreement, the Certificate and the transactions contemplated hereby
and thereby. The Company further acknowledges that none of the
Purchasers nor any of their partners, members, directors, officers,
agents, employees or any other person acting on their behalf is
acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to this
Agreement, the Certificate and the transactions contemplated hereby
and thereby. The Company further represents to the Purchasers that
the Company's decision to enter into this Agreement and file the
Certificate has been based solely on the independent evaluation by
the Company and its representatives.
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Foreign Corrupt Practices Act .
Neither the Company, nor any director, officer, agent, employee or
other person acting on behalf of the Company or any subsidiary of
the Company has, in the course of acting for, or on behalf of, the
Company, directly or indirectly used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expenses relating to political activity; directly or indirectly
made any direct or indirect unlawful payment to any foreign or
domestic government or party official or employee from corporate
funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended, or any similar
treaties of the United States; or directly or indirectly made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government or party
official or employee.
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MFN and Variable Rate Transactions .
Except as set on Schedule 2.1(w) , the Company has not
entered into any MFN Transaction or Variable Rate Transaction
(other than the sale of Preferred Shares under this Agreement and
the CFP Purchase Agreement (as such term is defined below)),
pursuant to which: (1) securities or potential obligations to issue
securities are still outstanding or (2) the issuance, conversion,
or exercise, as the case may be, of the Preferred Shares trigger,
or may in the future trigger, an adjustment.
The term "
MFN Transaction " shall mean a transaction in which the
Company issues or sells any securities in a capital raising
transaction or series of related capital raising transactions (the
" MFN Offering ") which grants to a purchaser (the " MFN
Purchaser ") the right to receive additional shares (including
without limitation as a result of a lower conversion, exchange or
exercise price but excluding customary antidilution protections)
based upon subsequent transactions of the Company on terms more
favorable than those granted to such MFN Purchaser in such MFN
Offering. As used herein, term " Variable Rate Transaction "
shall mean a transaction in which the Company issues or sells (i)
any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include (pursuant to the terms
of the securities or the transaction documents pursuant to which
such securities were issued) the right to receive additional shares
of, Common Stock either (x) at a conversion, exercise or exchange
rate or other price that is based upon and/or varies with the
trading prices of or quotations for the Common Stock at any time
after the initial issuance of such debt or equity securities, or
(y) with a fixed conversion, exercise or exchange price that is
subject to being reset at some future date after the initial
issuance of such debt or equity security or upon the occurrence of
specified or contingent events directly or indirectly related to
the business of the Company or the market for the Common Stock (but
excluding standard stock split anti-dilution provisions), or (ii)
any securities of the Company pursuant to an "equity line"
structure which provides for the sale, from time to time, of
securities of the Company which are registered for resale under the
Act.
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Acknowledgement of Dilution. The
number of shares of Common Stock issuable upon conversion of the
Preferred Shares may increase substantially in certain
circumstances. The Company acknowledges that its obligation to
issue shares of Common Stock in accordance with the Transaction
Documents is absolute and unconditional, regardless of the dilution
that such issuance may have on other shareholders of the
Company.
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Insurance . The Company and each of
its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
reasonably prudent and customary in the businesses in which the
Company and its direct and indirect subsidiaries are engaged.
Neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
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Application of Takeover Protections .
The Company and its board of directors have taken all necessary
action, if any, in order to render inapplicable any anti-takeover
or control share provisions contained in the Company's Charter or
By-Laws or arising under Nevada law, including without limitation
Nevada Revised Statute Section 78-378, et. seq., which is
or could become applicable to the Purchasers as a result of the
transactions contemplated by the Transaction Documents, including,
without limitation, the issuance of the Preferred Shares, Common
Shares
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