Exhibit 10(j)
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of
April 19, 2000, by and among Capita Research Group, Inc., a Nevada corporation,
with headquarters located at 591 Skippack Pike, Suite 300, Blue Bell,
Pennsylvania 19422 (the "Company"), and the investors listed on the Schedule of
Buyers attached hereto (individually, a "Buyer" and collectively, the "Buyers").
WHEREAS:
A. The Company and the Buyers are executing and delivering
this Agreement in reliance upon the exemption from securities registration
afforded by Rule 506 of Regulation D ("Regulation D") as promulgated by the
United States Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act");
B. The Company has authorized the issuance of up to 394,447 of
the Company's units (the "Units"), each unit consisting of (i) one share of the
Company's common stock, $.001 par value per share (the "Common Stock"), and (ii)
one of the Company's Common Stock Purchase Warrants to purchase one share of the
Company's Common Stock exercisable at a purchase price of $1.35 per share of
Common Stock (the "Warrants") (such shares of Common Stock issued upon exercise
of the Warrants are hereinafter referred to as the "Warrant Shares", and
together with the Units, Common Stock and Warrants, the "Securities");
C. The Buyers wish to purchase, upon the terms and conditions
stated in this Agreement, an aggregate of up to $355,000 of Units in the
respective amounts set forth opposite each Buyer's name on the Schedule of
Buyers; and
D. Contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement dated as of the date hereof (the "Registration Rights Agreement")
pursuant to which the Company has agreed to provide certain registration rights
under the 1933 Act and the rules and regulations promulgated thereunder, and
applicable state securities laws.
NOW, THEREFORE, the Company and the Buyers hereby agree as
follows:
1. PURCHASE AND SALE OF UNITS
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a. Purchase of Units. Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 5 and 6 below,
the Company shall issue and sell to the Buyers and the Buyers shall purchase
from the Company an aggregate of up to 394,447 Units in the respective amounts
set forth opposite each Buyer's name on the Schedule of Buyers at the Closing
(the "Closing"). The per unit purchase price (the "Purchase Price") of the Units
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shall be $.90 or an aggregate purchase price of up to $355,000. On the Closing
Date (as defined below), the Company shall issue and deliver to each Buyer (i) a
stock certificate(s) representing such number of the shares of Common Stock and
(ii) certificates representing such number of Warrants, which such Buyer is then
purchasing (as indicated opposite such Buyer's name on the Schedule of Buyers),
duly executed on behalf of the Company and registered in the name of such Buyer
or his designee (the "Stock Certificates").
b. Closing Date. The date and time of the
Closing (the "Closing Date") shall be 5:00 p.m., Eastern Standard Time on April
19, 2000, subject to notification of satisfaction (or waiver) of the conditions
to the Closing set forth in Sections 5 and 6 below (or such later date as is
mutually agreed to by the Company and the Buyers). The Closing shall occur on
the Closing Date at the offices of Torys, 237 Park Avenue, New York, New York
10017.
c. Form of Payment. On or before the Closing
Date, each Buyer shall pay the Purchase Price to the Company for the Units to be
issued and sold to such Buyer at the Closing, by check or by wire transfer of
immediately available funds in accordance with the Company's written wire
instructions provided to the Buyers prior to the Closing Date.
2. BUYER'S REPRESENTATIONS AND WARRANTIES.
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Each Buyer represents and warrants with respect to only itself
that:
a. Investment Purpose. Such Buyer (i) is
purchasing the Units consisting of Common Stock and Warrants and (ii) upon
exercise of the Warrants, will acquire the Warrant Shares, then issuable for his
own account for investment only and not with a present view towards or for
resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted under the 1933 Act; provided, however,
that by making the representations herein, such Buyer does not agree to hold any
Securities for any minimum or other specific term and reserves the right to
dispose of the Securities at any time in accordance with or pursuant to a
registration statement or an exemption under the 1933 Act.
b. Accredited Investor Status. Such Buyer is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D.
c. Reliance on Exemptions. Such Buyer
understands that the Units are being offered and sold to him 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 such Buyer's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of such Buyer set
forth herein in order to determine the availability of such exemptions and the
eligibility of such Buyer to acquire the Units.
d. Information. Such Buyer and his advisors, if
any, have 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 Units which have been requested by such Buyer. Such Buyer and his advisors,
if any, have been afforded the opportunity to ask questions of the Company.
Neither such inquiries nor any other due diligence investigations conducted by
such Buyer or his advisors, if any, or his representatives shall modify, amend
or affect such Buyer's right to rely on the Company's representations and
warranties contained in Section 3 below.
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e. No Governmental Review. Such 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 Units 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 Units.
f. Transfer or Resale. Such Buyer understands
that except as provided in the Registration Rights Agreement: (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, (B) such Buyer shall have
delivered to the Company an opinion of counsel, in a generally acceptable form,
to the effect that such Securities to be sold, assigned or transferred may be
sold, assigned or transferred pursuant to an exemption from such registration,
or (C) such securities can be sold, assigned or transferred pursuant to Rule 144
promulgated under the 1933 Act (or a successor rule thereto) ("Rule 144"); (ii)
any sale of such 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 such 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 such securities under the 1933 Act or any state
securities laws or to comply with the terms and conditions of any exemption
thereunder.
g. Legends. Such Buyer understands that the
certificates or other instruments representing the Warrants and, until such time
as the sale of the Common Stock or Warrant Shares have been registered under the
1933 Act as contemplated by the Registration Rights Agreement, the stock
certificates or other documents representing the Common Stock and Warrant Shares
except as set forth below, shall bear a restrictive legend in substantially the
following form (and a stop-transfer order may be placed against transfer of such
certificates):
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK
ISSUABLE UPON EXERCISE OF SUCH WARRANTS HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED IN
VIOLATION OF SUCH ACT.
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of any Securities upon which it is
stamped, if (i) any such Securities are registered for sale under the 1933 Act,
(ii) in connection with a sale transaction, such holder provides the Company
with an opinion of counsel, in a generally acceptable form, to the effect that a
public sale, assignment or transfer of any of the Securities may be made without
registration under the 1933 Act, or (iii) any of the Securities can be sold
pursuant to Rule 144 without any restriction as to the number of securities
acquired as of a particular date that can then be immediately sold. Each Buyer
acknowledges, covenants and agrees to sell any of the Securities represented by
a certificate(s) from which the legend has been removed, only pursuant to (i) a
registration statement effective under the 1933 Act, or (ii) advice of counsel
that such sale is exempt from registration required by Section 5 of the 1933
Act. In the event the above legend is removed from any of the Securities, the
Company may, upon reasonable advance notice to the holder, require that the
above legend be placed on any of the Securities that cannot then be sold
pursuant to an effective registration statement or Rule 144(k) under the 1933
Act (or any successor rule thereto).
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h. Authorization; Enforcement. This Agreement
has been duly and validly authorized, executed and delivered on behalf of such
Buyer and is a valid and binding agreement of such Buyer enforceable 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.
i. Residency. Such Buyer is a resident of the
state specified opposite his name in the Schedule of
Buyers.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants to each of the
Buyers that:
a. Organization and Qualification. The Company
and its subsidiaries are corporations duly incorporated and validly existing in
good standing under the laws of the jurisdiction in which they are incorporated,
and have the requisite corporate power 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 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 would not have a Material Adverse Effect.
"Material Adverse Effect" means any material adverse effect on (i) the business,
properties, operations, condition (financial or otherwise), or results of
operations of the Company and its subsidiaries, taken as a whole, (ii) on the
ability of the Company to perform its obligations hereunder, under the
Registration Rights Agreement or under the other agreements or instruments to be
entered into or filed in connection herewith or therewith, or (iii) the
Securities.
b. Authorization; Enforcement; Compliance with
Other Instruments. (i) The Company has the requisite corporate power and
authority to enter into and perform its obligations under this Agreement, the
Warrants and the Registration Rights Agreement, (collectively, the "Closing
Agreements") to issue, sell and perform its obligations with respect to the
Units and Warrant Shares in accordance with the terms hereof and the Warrants
and to issue the Warrant Shares upon exercise of the Warrants, in accordance
with the terms and conditions of the Warrants, (ii) the execution and delivery
of the Closing Agreements by the Company and the consummation by it of the
transactions contemplated hereby and thereby, including, without limitation, the
issuance of the Common Stock and the Warrants and the reservation for issuance
and the issuance of the Warrant Shares upon exercise of the Warrants 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) the Closing Agreements have been duly executed and delivered
by the Company, and (iv) the Closing Agreements constitute the legal, 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.
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c. Capitalization and Indebtedness. As of the
date hereof, the authorized capital stock of the Company consists of 100,000,000
shares of Common Stock, of which as of the date hereof, 21,705,946 shares are
issued and outstanding and no shares of Preferred Stock. All of such outstanding
shares have been validly issued and are fully paid and nonassessable. No shares
of Common Stock are subject to preemptive rights or any other similar rights or
any liens or encumbrances suffered or permitted by the Company. Except as
disclosed in Schedule 3(c), as of the date hereof, (i) 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, (ii) there are no outstanding debt
securities, notes, credit agreements, or other agreements, documents or
instruments evidencing indebtedness of the Company or any of its subsidiaries or
by which the Company or any of its subsidiaries is or may become bound and (iii)
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).
d. Issuance of Securities. The Securities are
duly authorized and, upon issuance in accordance with the terms hereof shall be
(i) validly issued, fully paid and non-assessable, (ii) free from all taxes,
liens and charges with respect to the issue thereof and are not and shall not be
subject to preemptive rights or other similar rights of stockholders of the
Company. Three hundred ninety-four thousand four hundred forty-seven (394,447)
shares of Common Stock have been duly authorized and reserved for issuance in
connection with the Units.
e. No Conflicts. The execution, delivery and
performance of the Closing Agreements by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Securities) will not (i) result in a violation
of the Articles of Incorporation or By-laws of the Company as in effect as of
the date hereof or (ii) except as disclosed in Schedule 3(e), violate or
conflict with, or result in a breach of any provision of, 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 material 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 or exchange on which the Common Stock is traded or
listed) 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. Neither the Company nor its subsidiaries are in violation of any term
of or in default under the Articles of Incorporation or By-laws of the Company
or their organizational charter or by-laws as in effect as of the date hereof,
respectively, or in violation of any term of or in default under any contract,
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agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or
order or any statute, rule or regulation applicable to the Company or its
subsidiaries, except for violations or defaults which would not, individually or
in the aggregate, have a Material Adverse Effect. The business of the Company
and its subsidiaries is not being conducted in violation of any law, ordinance
or regulation of any governmental entity, which violations, individually or in
the aggregate, would have a Material Adverse Effect. Except as specifically
contemplated by this Agreement and as required under the 1933 Act or state
securities or "Blue Sky" 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 or regulatory or self-regulatory agency in order for it to
execute, deliver or perform any of its obligations under or contemplated by this
Agreement, the Registration Rights Agreement or the Warrants 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 have been obtained or effected on
or prior to the date hereof. The Company and its subsidiaries are unaware of any
facts or circumstances which might give rise to any of the foregoing.
f. Acknowledgment Regarding Buyers' Purchase of
the Securities. The Company acknowledges and agrees that each of the Buyers is
acting solely in the capacity of arm's length purchaser with respect to this
Agreement and the transactions contemplated hereby. The Company further
acknowledges that each Buyer is not acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to this Agreement and
the transactions contemplated hereby and any advice given by any of the Buyers
or any of their respective representatives or agents in connection with this
Agreement and the transactions contemplated hereby is merely incidental to such
Buyer's purchase of the Securities. The Company further represents to each Buyer
that the Company's decision to enter into this Agreement has been based solely
on the independent evaluation by the Company and its representatives.
g. 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 any of the Securities offered hereby.
h. No Integrated Offering. Neither the Company,
nor any of its affiliates, nor 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 any of the Securities under the 1933 Act or cause the offering
of any of the Securities to be integrated with prior offerings by the Company
for purposes of the 1933 Act or any applicable shareholder approval provisions.
i. Disclosure. All information relating to or
concerning the Company or any of its subsidiaries set forth in this Agreement
and provided to the Buyer pursuant to Section 2(d) hereof and otherwise in
connection with the transactions contemplated hereby is true and correct in all
material respects and the Company has not omitted to state any material fact
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necessary in order to make the statements made herein or therein, in light of
the circumstances under which they were made, not misleading. No event or
circumstance has occurred or information exists with respect to the Company or
any of its subsidiaries or its or their business, properties, operations or
financial condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed (assuming for this purpose that the Company's
reports filed under the Securities Exchange Act of 1934, as amended (the "1934
Act") are being incorporated into an effective registration statement filed by
the Company under the 1933 Act). The Company has not provided any Buyer with any
material non-public information nor any projections or assurance regarding the
future financial performance of the Company.
4. COVENANTS AND AGREEMENTS.
------------------------
a. Best Efforts. Each party shall use its best
efforts timely to satisfy each of the conditions to be satisfied by it as
provided in Sections 5 and 6 of this Agreement.
b. Form D. The Company agrees to file a Form D
with respect to the Securities as required under Regulation D. The Company
shall, on or before the Closing Date, take such action as the Company shall
reasonably determine is necessary to qualify the Securities for, or obtain
exemption for the Securities for, sale to the Buyers at the Closing pursuant to
this Agreement under applicable securities or "Blue Sky" laws of the states of
the United States.
c. Reporting Status. Until the earlier of (i)
six months after the date as of which the Investors (as that term is defined in
the Registration Rights Agreement) may sell all of the Securities without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor
thereto) or (ii) the date which is six months after the date on which none of
the Securities are outstanding (the "Registration Period"), the Company shall
timely file all reports required to be filed with the SEC pursuant to the 1934
Act, and the Company shall not terminate its status as an issuer required to
file reports under the 1934 Act even if the 1934 Act or the rules and
regulations thereunder would otherwise permit such termination.
d. Use of Proceeds. The Company will use the
proceeds from the sale of the Securities for working capital and general
corporate purposes and shall not otherwise, directly or indirectly, use such
proceeds for any loan to or investment in any other corporation, partnership,
enterprise or other person (except in connection with its direct or indirect
subsidiaries) or for the repurchase, redemption or retirement of any capital
stock of the Company.
e. Financial Information. The Company agrees to
file 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. The financial statements of the Company will be prepared in accordance with
generally accepted accounting principles, consistently applied (except for any
required changes in such principles), and will fairly present in all material
respects the consolidated financial position of the Company and its consolidated
subsidiaries and results of their 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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f. Reservation of Shares. The Company shall
take all action necessary to at all times have authorized, and reserved for the
purpose of issuance, no less than 394,447 shares of Common Stock to provide for
the issuance of the Warrant Shares upon exercise of the Warrants in accordance
with the terms of this Agreement and the Warrants.
g. Disclosure. From and after the date hereof,
the Company will not provide to any Buyer any material non-public information
which, according to applicable law, rule or regulation should be disclosed
publicly by the Company but which has not been so disclosed.
5. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
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The obligation of the Company hereunder to issue and sell the
Units to each Buyer at the Closing is subject to the satisfaction, with respect
to each Buyer, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for the Company's sole benefit
and may be waived by the Company at any time in its sole discretion:
a. Such Buyer shall have executed this
Agreement and the Registration Rights Agreement and delivered the same to the
Company.
b. Such Buyer shall have delivered to the
Company the Purchase Price for the Units being purchased by such Buyer at the
Closing by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company.
c. The representations and warranties of such
Buyer shall be true and correct in all material respects as of the date when
made and as of the Closing Date as though made at that time (except for
representations and warranties that speak as of a specific date), and such Buyer
shall have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by such Buyer at or prior to the Closing Date.
d. The transactions contemplated hereby shall
not violate any law, regulation or order then in effect and applicable to such
Buyer or the Company.
6. CONDITIONS TO EACH BUYER'S OBLIGATION TO PURCHASE.
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The obligation of each Buyer hereunder to purchase the Units
is subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for each Buyer's sole
benefit and may be waived by such Buyer at any time in its sole discretion:
a. The Company shall have executed this
Agreement, the Warrants and the Registration Rights Agreement, and delivered the
same to such Buyer.
b. Trading in the Common Stock or Warrant
Shares issuable upon the conversion of the Warrants shall not have been
suspended by the SEC.
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c. The representations and warranties of the
Company shall be true and correct in all material respects (except to the extent
that any of such representations and warranties is already qualified as to
materiality in Section 3 above, in which case such representations and
warranties shall be true and correct without further qualification) as of the
date when made and as of the Closing Date as though made at that time (except
for representations and warranties that speak as of a specific date) and the
Company shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by the Company at or prior to the Closing
Date.
d. The Company shall have executed and
delivered to such Buyer the Stock Certificates for the Common Stock being
purchased by such Buyer at the Closing.
e. The Company shall have executed and
delivered to each Buyer the Warrants being purchased by such Buyer at the
Closing.
f. As of the Closing Date, the Company shall
have reserved out of its authorized and unissued Common Stock, solely for the
purpose of effecting the exercise of the Warrants, 394,447 shares of Common
Stock.
g. The transactions contemplated hereby shall
not violate any law, regulation or order then in effect and applicable to Buyers
or the Company.
7. GOVERNING LAW; MISCELLANEOUS.
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a. Governing Law. This Agreement shall be
governed by and interpreted in accordance with the laws of
the State of New York without regard to the principles of conflict of laws.
b. Counterparts. This Agreement may be executed
in two or more identical counterparts, all of which shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party. In the event any signature page
is delivered by facsimile transmission, the party using such means of delivery
shall cause four (4) additional original executed signature pages to be
physically delivered to the other party within five (5) days of the execution
and delivery hereof.
c. Headings. The headings of this Agreement are
for convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
d. Severability. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
e. Entire Agreement; Amendments. This Agreement
supersedes all other prior oral or written agreements between the Buyers, the
Company, their affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the instruments and documents
referenced herein contain the entire understanding of the parties with respect
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to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. No provision of
this Agreement may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
f. Notices. Any notices, consents, waivers or
other communications required or permitted to be given under the terms of this
Agreement shall be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile,
provided a copy is mailed by U.S. certified mail, return receipt requested;
(iii) three (3) days after being sent by U.S. certified mail, return receipt
requested, or (iv) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
if to the Company:
Capita Research Group, Inc.
591 Skippack Pike
Suite 300
Blue Bell, Pennsylvania 19422
Telephone: 215-619-7777
Facsimile: 215-619-0775
Attention: Chief Financial Officer
with a copy to:
Andrew J. Beck, Esq.
Torys
237 Park Avenue
New York, New York 10017
Facsimile: 212-682-0200
If to a Buyer, to its address on the Schedule of Buyers, with
copies to such Buyer's counsel. Each party shall provide five (5) days' prior
written notice to the other party of any change in address or facsimile number.
g. Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of the Units. The Company shall
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of the Buyers. A Buyer may assign some or all of its
rights hereunder without the consent of the Company, provided, however, that (i)
any such assignment shall not release such Buyer from its obligations hereunder
unless such obligations are assumed by such assignee and the Company has
consented to such assignment and assumption, and (ii) no Buyer may assign its
rights hereunder in a manner that would cause the offering of Securities
hereunder to be required to be registered under the 1933 Act.
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h. No Third Party Beneficiaries. This Agreement
is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other person.
i. Survival. The representations and warranties
of the Company and the Buyers contained in Sections 3 and 2, respectively, shall
survive the Closing until eighteen months after the Closing Date. The agreements
and covenants set forth in Sections 4, 5 and 6, shall survive the Closing. Each
Buyer shall be responsible only for his own representations, warranties,
agreements and covenants hereunder.
j. Publicity. The Company and each Buyer shall
have the right to approve before issuance any press releases or any other public
statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of any
Buyer, to make any press release or other public disclosure with respect to such
transactions as is required by applicable law and regulations (although each
Buyer shall be consulted by the Company in connection with any such press
release or other public disclosure prior to its release and shall be provided
with a copy thereof), but only to the extent required by such law or regulation.
k. Further Assurances. Each party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
l. No Strict Construction. The language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied
against any party.
m. Equitable Relief. The Company recognizes
that in the event that it fails to perform, observe, or discharge any or all of
its obligations under this Agreement, any remedy at law may prove to be
inadequate relief to the Buyers. The Company therefore agrees that the Buyers
shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
n. Consent to Jurisdiction. The parties hereto
expressly submit themselves to the exclusive jurisdiction of the state and
federal courts of New York in any action or proceeding relating to this
Agreement or any of the other documents contemplated hereby or any of the
transactions contemplated hereby or thereby. Each party hereby irrevocably
waives, to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of venue of any such action, suit or proceeding
brought in such a court and any claim that any such action, suit or proceeding
brought in such a court has been brought in an inconvenient forum. The parties
hereto irrevocably and unconditionally consent to the service of process of any
of the aforementioned courts in any such action, suit or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, at
their respective addresses set forth or provided for herein, such service to
become effective 10 days after such mailing. Nothing herein shall affect the
right of any party to serve process in any manner permitted by law or to
commence legal proceedings or otherwise proceed against the other parties in any
other jurisdiction.
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o. Construction. References in this Agreement
to any gender shall include references to all genders. Unless the context
otherwise requires, references in the singular include references in the plural
and vice versa.
* * *
12
IN WITNESS WHEREOF, each of the Buyers and the Company have
caused this Securities Purchase Agreement to be duly executed as of the date
first written above.
COMPANY:
CAPITA RESEARCH GROUP, INC.
By:/s/ David B. Hunter
----------------------
Name: David B. Hunter
Its: President
BUYERS:
/s/ Page Chapman, III
---------------------
Page Chapman, III
/s/ Larry Dinkin
----------------
Larry Dinkin
/s/ Howard Fischer
------------------
Howard Fischer
/s/ Rich Greenstein
-------------------
Rich Greenstein
/s/ Michael Levy
----------------
Michael Levy
/s/ Eric Pai
------------
Eric Pai
/s/ David G. Sandeloysky
------------------------
David G. Sandeloysky
/s/ Greg Silverstein
--------------------
Greg Silverstein
/s/ William Tai
---------------
William Tai
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/s/ Mark Van Fossan
-------------------
Mark Van Fossan
/s/ Cyril Visovsky
------------------
Cyril Visovsky
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SCHEDULE OF BUYERS
Number of State of
Investor Name and Address Units Residence
- ------------------------- ----- ---------
Page Chapman, III 27,778 New Jersey
P.O. Box 296
New Vernon, New Jersey 07976
Larry Dinkin
c/o Mike Destafano 27,778 New York
Ferrara, Destafano and Caporusso
900 Wheeler Rd
Suite 290
Happague, New York 11788
Howard Fischer 27,778 New York
36 Wampus Lake Dr.
Armonk, New York 10504
Rich Greenstein 33,333 New York
c/o Mike Destafano
Ferrara, Destafano and Caporusso
900 Wheeler Rd
Suite 290
Happague, New York 11788
Michael Levy 27,778 New York
Deutsche Bank
130 Liberty Street
35th Floor
New York, New York 10006
Eric Pai 27,778 New York
Deutsche Bank
130 Liberty Street
35th Floor
New York, New York 10006
Rob Reiner 27,778 New York
Deutsche Bank
130 Liberty Street
35th Floor
New York, New York 10006
Greg Silvershein 27,778 New Jersey
67 Summit Avenue
Summit, New Jersey 07901
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SCHEDULE OF BUYERS
Number of State of
Investor Name and Address Units Residence
- ------------------------- ----- ---------
David G. Sandelovsky 27,778 New Jersey
34 Deer Creek Drive
Basking Ridge, New Jersey 07920
William Tai 55,556 New York
2086 2nd Avenue
Apt. 13a
New York, New York 10029-4161
Mark Van Fossan 55,556 New Jersey
67 Summit Avenue
Summit, New Jersey 07901
Cyril Visovsky 27,778 New York
43 Brundidge Drive
Goldens Bridge, New York 10526
16