EXHIBIT 4.5
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
THIS COMMON STOCK AND WARRANT PURCHASE AGREEMENT is dated as of June 30,
2002 (this "Purchase Agreement"), by and between XYBERNAUT CORPORATION, a
Delaware corporation, having its principal place of business located at 12701
Fair Lakes Circle, Suite 550, Fairfax, Virginia 22033 (the "Company"), and REMA
INVESTMENTS LIMITED, a company incorporated under the laws of Turks & Caicos
Islands, British West Indies, having its principal place of business located at
Gretton House, P.O. Box 65, Duke Street, Grand Turk (the "Investor").
W I T N E S S E T H
WHEREAS, the Company wishes to sell to the Investor, and the Investor is
willing to buy from the Company, subject to the terms and conditions set forth
herein, $2,000,000 of Common Stock, par value $.01 per share (the "Common
Stock"), of the Company.
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreement contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. PURCHASE AND SALE; MUTUAL DELIVERIES. (a) Upon the following terms and
conditions, the Company shall issue and sell to the Investor and the Investor
shall purchase from the Company that number of shares of Common Stock equal to
$2,000,000 (the "Aggregate Amount") divided by the Purchase Price (as
hereinafter defined), resulting in 3,333,333 shares (the "Shares") to be issued
upon the payment of the Purchase Price. Upon receipt of the Purchase Price, the
Company shall deliver to the Investor one or more certificates representing the
Shares, bearing substantially the following legend:
THE SECURITIES REPRESENTED HEREBY (THE "SECURITIES") HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN
OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO THE
CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) As used herein "Purchase Price" shall be equal to $.60 per share.
(c) The Company shall also deliver, or cause to be delivered, the
original or execution copies of this Purchase Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Investor that:
(a) The Company has the corporate power and authority to enter into this
Purchase Agreement, and to perform its obligations hereunder. The execution and
delivery by the Company of this Purchase Agreement and the consummation by the
Company of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company. This Purchase Agreement
has been duly executed and delivered by the Company and constitute the valid and
binding obligation of the Company enforceable against it in accordance with
their respective terms, subject to the effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to general equitable principles.
(b) Except as set forth in the SEC Documents (as hereinafter defined),
there is no pending, or to the knowledge of the Company, threatened, judicial,
administrative or arbitral action, claim, suit, proceeding or investigation
which might affect the validity or enforceability of this Purchase Agreement or
which involves the Company and which if adversely determined, could reasonably
be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(c) No consent or approval of, or exemption by, or filing with, any
party or governmental or public body or authority is required in connection with
the execution, delivery and performance under this Purchase Agreement or the
taking of any action contemplated hereunder or thereunder.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation.
(e) The execution, delivery and performance of this Agreement by the
Company, and the consummation of the transactions contemplated hereby, will not
(i) violate any provision of the Company's articles of incorporation or bylaws,
(ii) violate, conflict with or result in the breach of any of the terms of,
result in a material modification of the effect of, otherwise, give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which the Company or any of the
Company's assets or properties may be bound or subject, (iii) violate any order,
judgment, injunction, award or decree of any court, arbitrator or governmental
or regulatory body by which the Company, or the assets or properties of the
Company are bound and (iv) to the Company's knowledge, violate any statute, law
or regulation.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants to the Company that:
(a) The Investor has the corporate power and authority to enter into
this Purchase Agreement and to perform its obligations hereunder. The execution
and delivery by
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the Investor of this Purchase Agreement, and the consummation by the Investor of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of the Investor. This Purchase Agreement has been
duly executed and delivered by the Investor and constitute the valid and binding
obligation of the Investor, enforceable against it in accordance with their
respective terms, subject to the effects of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and to general equitable principles.
(b) The execution, delivery and performance by the Investor of this
Purchase Agreement, and the consummation of the transactions contemplated
hereby, do not and will not breach or constitute a default under any applicable
law or regulation or of any agreement, judgment, order, decree or other
instrument binding on the Investor.
(c) The Investor has such knowledge and prior substantial investment
experience in financial and business matters, including investment in non-listed
and non-registered securities, and has had the opportunity to engage the
services of an investment advisor, attorney or accountant to read the SEC
Documents and to evaluate the merits and risks of investment in the Company and
the Securities.
(d) The Investor is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as
amended (the "Securities Act").
(e) The Investor is not a "U.S. Person" as that term is defined in
Regulation S promulgated under the Securities Act.
(f) The Investor is acquiring the Shares, the Investor Warrants (as
defined in Section 4(d)) and the shares of Common Stock issuable upon exercise
of the Investor Warrants (the "Warrant Shares") solely for the Investor's own
account for investment and not with a view to or for sale in connection with a
distribution of any of the Shares or the Warrant Shares (the Shares, Warrants
and Warrant Shares collectively, the "Securities");
(g) The Investor does not have a present intention to sell the
Securities, nor a present arrangement or intention to effect any distribution of
any of the Securities to or through any person or entity for purposes of
selling, offering, distributing or otherwise disposing of any of the Securities;
(h) The Investor may be required to bear the economic risk of the
investment indefinitely because none of the Securities may be sold, hypothecated
or otherwise disposed of unless subsequently registered under the Securities Act
and applicable state securities laws or an exemption from registration is
available. Any resale of any of the Securities can be made only pursuant to (i)
a registration statement under the Securities Act which is effective and current
at the time of sale or (ii) a specific exemption from the registration
requirements of the Securities Act. In claiming any such exemption, the Investor
will, prior to any offer or sale or distribution of any Securities advise the
Company and, if requested, provide the Company with a favorable written opinion
of counsel, in form and substance satisfactory to counsel to the Company, as to
the applicability of such exemption to the proposed sale or distribution;
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(i) The Investor understands that the exemption afforded by Rule 144
promulgated by the Securities and Exchange Commission under the Securities Act
("Rule 144") will not become available for at least one year from the date of
payment for the Securities and any sales in reliance on Rule 144, if then
available, can be made only in accordance with the terms and conditions of that
rule, including, among other things, a requirement that the Company then be
subject to, and current, in its periodic filing requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, among
other things, a limitation on the amount of shares of Common Stock that may be
sold in specified time periods and the manner in which the sale can be made;
that, while the Company's Common Stock is registered under the Exchange Act and
the Company is presently subject to the periodic reporting requirements of the
Exchange Act, there can be no assurance that the Company will remain subject to
such reporting obligations or current in its filing obligations; and that, in
case Rule 144 is not applicable to a disposition of the Securities, compliance
with the registration provisions of the Securities Act or some other exemption
from such registration provisions will be required; and
(j) The Investor understands that legends shall be placed on the
certificates evidencing the Securities to the effect that the Securities have
not been registered under the Securities Act or applicable state securities laws
and appropriate notations thereof will be made in the Company's stock books.
Stop transfer instructions will be placed with the transfer agent of the
securities constituting the Common Stock.
4. COVENANTS OF THE COMPANY. (a) The Company covenants and agrees to enter
into a registration rights agreement governing the registration of the
Securities with the Investor dated as of the date hereof.
(b) Current Public Information. The Company has furnished or made
available to the Investor true and correct copies of all registration
statements, reports and documents, including proxy statements (other than
preliminary proxy statements), filed with the Securities and Exchange Commission
(the "SEC") by or with respect to the Company since December 31, 2001 and prior
to the date of this Agreement, pursuant to the Securities Act or the Exchange
Act (collectively, the "SEC Documents"). The SEC Documents are the only filings
made by or with respect to the Company since December 31, 2001 pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act or pursuant to the
Securities Act. The Company has filed all reports, schedules, forms, statements
and other documents required to be filed under Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act since December 31, 2001 and prior to the date of this
Agreement. The Company meets the "Registrant Requirement" for eligibility to use
Form S-3 under the Securities Act in order to register the Company's Common
Stock for resales.
(c) SEC Documents. The Company has not provided to the Investor any
information which according to applicable law, rule or regulation, should have
been disclosed publicly prior to the date hereof by the Company but which has
not been so disclosed. As of their respective dates, the SEC Documents complied,
and all similar documents filed with the SEC prior to the Closing Date will
comply, in all material respects with the requirements of the
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Securities Act or the Exchange Act, as the case may be, and rules and
regulations of the SEC promulgated thereunder and other federal, state and local
laws, rules and regulations applicable to such SEC Documents, and none of the
SEC Documents contained, nor will any similar document filed with the SEC prior
to the Closing Date contain, 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 financial statements of the Company included in the
SEC Documents, as of the dates thereof, complied, and all similar documents
filed with the SEC prior to the Closing Date will comply, as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC and other applicable rules and regulations with
respect thereto. Such financial statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis 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 not include footnotes or may be condensed or
summary statements as permitted by Form 10-Q of the SEC) and fairly present in
all material respects the financial position of the Company and its consolidated
subsidiaries as of the dates thereof and the consolidated results of operations
and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments).
(d) Warrants. The Company agrees to issue to the Investor at the
Closing, transferable divisible warrants (the "Investor Warrants") to purchase
up to 833,333 shares of Common Stock. Such Investor Warrants shall bear an
exercise price per share of Common Stock equal to $1.50 and shall be
exercisable, immediately upon issuance, and for a period of five (5) years
thereafter. Subject to the terms and conditions of the Investor Warrants, the
Company, at its option, may, upon written notice to the Investor, call up to
fifty percent (50%) of the Investor Warrants if the Common Stock trades at a
price equal to or greater than $3.00 per share for five (5) consecutive trading
days prior to the date the Company calls the Investor Warrants.
(e) Reimbursement. If (i) the Investor, other than by reason of its
gross negligence or willful misconduct, becomes involved in any capacity in any
action, proceeding or investigation brought by any stockholder of the Company,
in connection with or as a result of the consummation of the transactions
contemplated by this Purchase Agreement, or if such Investor impleaded in any
such action, proceeding or investigation by any Person, or (ii) the Investor,
other than by reason of its gross negligence or willful misconduct or by reason
of its trading of the Common Stock in a manner that is illegal under the federal
securities laws or other actions, becomes involved in any capacity in any
action, proceeding or investigation brought by the Commission against or
involving the Company or in connection with or as a result of the consummation
of the transactions contemplated by this Purchase Agreement, or if the Investor
is impleaded in any such action, proceeding or investigation by any Person, then
in any such case, the Company will reimburse the Investor for its reasonable
legal and other expenses (including the cost of any investigation and
preparation) incurred in connection therewith, as such expenses are incurred. In
addition, other than with respect to any such matter in which the Investor is a
named party, the Company will pay the Investor the charges, as reasonably
determined by the Investor, for the time of any officers or employees of the
Investor devoted to appearing and preparing to appear as witnesses, assisting in
preparation for hearings, trials or pretrial matters, or otherwise with respect
to inquiries, hearing, trials, and other proceedings relating to the
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subject matter of this Agreement. The reimbursement obligations of the Company
under this paragraph shall be in addition to any liability which the Company may
otherwise have, shall extend upon the same terms and conditions to any
Affiliates of the Investors who are actually named in such action, proceeding or
investigation, and partners, directors, agents, employees and controlling
persons (if any), as the case may be, of the Investors and any such Affiliate,
and shall be binding upon and inure to the benefit of any successors, assigns,
heirs and personal representatives of the Company, the Investors and any such
Affiliate and any such Person. The Company also agrees that neither the Investor
nor any such Affiliate, partners, directors, agents, employees or controlling
persons shall have any liability to the Company or any person asserting claims
on behalf of or in right of the Company in connection with or as a result of the
consummation of the transactions contemplated by this Purchase Agreement except
to the extent that any losses, claims, damages, liabilities or expenses incurred
by the Company result from the gross negligence or willful misconduct of the
Investor or any such Affiliate. The Company further agrees to reimburse the
Investor for its reasonable attorney's and other professional fees in connection
with the negotiation and execution of this Purchase Agreement.
5. DELIVERY OF SHARES. (a) Promptly following the delivery by the Investor
of the Total Purchase Price for the Shares in accordance with Section 1 hereof,
the Company will irrevocably instruct its transfer agent to issue to the
Investor legended certificates representing the Shares.
(b) Within five (5) business days (such third business day, the
"Delivery Date") after the business day on which the Company has received both
the notice of sale (by facsimile or other delivery) and the original Common
Stock certificate (and if the same are not delivered to the Company on the same
date, the date of delivery of the second of such items), the Company (i) shall
deliver, and shall cause legal counsel selected by the Company to deliver, to
its transfer agent (with copies to Investor) an appropriate instruction and
opinion of such counsel, for the delivery of unlegended Shares issuable upon the
sale of the Shares pursuant to the registration statement for the Shares;
provided that such registration statement at the time of sale has been declared
effective by the Commission and is current (the "Unlegended Shares"); and (ii)
transmit the certificates representing the Unlegended Shares (together, unless
otherwise instructed by the Investor, with Common Stock not sold), to the
Investor at the address specified in a notice of sale (which address may be the
Investor's address for notices as contemplated by Section 6 hereof or a
different address) via express courier, by electronic transfer or otherwise.
(c) In lieu of delivering physical certificates representing the
Unlegended Shares, if the Company's transfer agent is participating in the
Depository Trust Company ("DTC") Fast Automated Securities Transfer program,
upon request of the Investor and its compliance with the provisions contained in
this paragraph, so long as the certificates therefor do not bear a legend and
the Investor thereof is not obligated to return such certificate for the
placement of a legend thereon, the Company shall use its best efforts to cause
its transfer agent to electronically transmit the Unlegended Shares by crediting
the account of Investor's Prime Broker with DTC through its Deposit Withdrawal
Agent Commission system.
6. NOTICES. Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed effectively
given upon personal delivery
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or seven (7) business days after deposit in the United States Postal Service, by
(a) advance copy by fax, and (b) mailing by express courier or registered or
certified mail with postage and fees prepaid, addressed to each of the other
parties thereunto entitled at the following addresses, or at such other
addresses as a party may designate by ten days advance written notice to each of
the other parties hereto.
Company: Xybernaut Corporation
12701 Fair Lakes Circle, Suite 550
Fairfax, Virginia 22033
ATTN: John F. Moynahan, Chief Financial Officer
Telephone No.: (703) 631-6925
Facsimile No.: (703) 631-3903
with a copy to: Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
ATTN: Martin Eric Weisberg, Esq.
Telephone No.: (212) 704-6000
Facsimile No.: (212) 704-6288
Investor: Rema Investments, Limited
Gretton House
P.O. Box 65
Duke Street, Grand Turk
ATTN: __________________
Telephone No.: ____________
Facsimile No.: _____________
with a copy to: Krieger & Prager, LLP
39 Broadway, Suite 1440
New York, New York 10006
ATTN: Samuel Krieger, Esq.
Telephone No.: (212) 363-2900
Facsimile No.: (212) 363-2999
7. SEVERABILITY. If a court of competent jurisdiction determines that any
provision of this Purchase Agreement is invalid, unenforceable or illegal for
any reason, such determination shall not affect or impair the validity, legality
and enforceability of the other provisions of this Purchase Agreement. If any
such invalidity, unenforceability or illegality of a provision of this Purchase
Agreement becomes known or apparent to any of the parties hereto, the parties
shall negotiate promptly and in good faith in an attempt to make appropriate
changes and adjustments to such provision specifically and this Purchase
Agreement generally to achieve as closely as possible, consistent with
applicable law, the intent and spirit of such provision specifically and this
Purchase Agreement generally.
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8. EXECUTION IN COUNTERPARTS. This Purchase Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same Purchase Agreement.
9. CONSENT TO JURISDICTION. Each of the Company and the Investor (i) hereby
irrevocably submits to the jurisdiction of the United States District Court
sitting in the Southern District of New York and the courts of the State of New
York located in New York county for the purposes of any suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby and (ii) hereby waives, and agrees not to assert in any such
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of such court, that the suit, action or proceeding is brought in an
inconvenient forum or that the venue of the suit, action or proceeding is
improper. Each of the Company and the Investor consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 9 shall affect or limit any right to serve
process in any other manner permitted by law.
10. GOVERNING LAW. This Purchase Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without giving
effect to choice of law provisions.
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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of
the date first written above.
XYBERNAUT CORPORATION
By:
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Name:
Title:
REMA INVESTMENTS LIMITED
By:
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Name:
Title:
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