EXHIBIT 10.1
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SECOND SECURITIES PURCHASE AGREEMENT
THIS SECOND SECURITIES PURCHASE AGREEMENT (the "Agreement") is made this
31st day of January, 2005, by and between Global Matrechs, Inc. (the "Company"),
a Delaware corporation, and Southridge Partners LP (the "Purchaser").
WHEREAS, the Purchaser purchased from the Company, a nonnegotiable 2%
secured convertible promissory note (the "First Note") and a warrant (the
"Warrant") on or about October 19th, 2004, with an option to purchase an
additional promissory note and warrant of the Company on the same terms and
conditions;
WHEREAS, the Purchaser wishes to exercise its option to purchase from the
Company, and the Company wishes to sell to the Purchaser, a Second Note in the
principal amount of $250,000 substantially in the form of Exhibit A attached
hereto, and a warrant (the "Warrant") to purchase shares of common stock, par
value $0.0001 per share (the "Common Stock"), of the Company, substantially in
the form of Exhibit B attached hereto (the "Warrant Shares"), and to amend the
option to purchase a Additional Principal Amount and warrant from the Company as
follows.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties agree as follows:
SECTION 1 Sale of Securities.
1.1. Authorization of Sale of the Securities. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale and issuance
to the Purchaser of the Notes and Warrant (the "Securities").
1.2. Agreement to Sell and Purchase the Securities. At the Initial Closing
and the Optional Closing, if any (each as defined below), the Company will issue
and sell to the Purchaser and the Purchaser will buy from the Company the
Securities upon the terms and conditions hereinafter set forth. Subject to and
in reliance upon all of the representations, warranties, covenants, terms and
conditions of this Agreement, any such closing hereunder shall take place at the
offices of Foley Hoag LLP, 155 Seaport Boulevard, Boston, Massachusetts, 02210
at 10:00 a.m., local time, on the dates set forth below, or at such other
location, date and time as many be agreed upon between the Purchaser and the
Company.
1.3. Second Closing. At the closing of the sale and purchase of the Second
Note (the "Second Closing"), the Company shall issue and sell, and the Purchaser
shall purchase, the Second Note, which shall be in principal amount of $250,000
(the "Second Principal Amount") and the Warrant to purchase 10,000,000 shares of
Common Stock, against payment by the Purchaser of the Second Principal Amount.
1.4. Optional Closing. If, at any time prior to July 1, 2005, the Purchaser
shall deliver notice to the Company of its election to purchase the Additional
Note, then there shall be an additional closing (the "Optional Closing"), at
which Optional Closing the Company shall issue and sell, and the Purchaser shall
purchase, the Additional Note, which shall be in principal
amount of not more than $1,500,000 (the "Additional Principal Amount") and
substantially in the form of Exhibit A attached hereto, against payment by the
Purchaser of the Additional Principal Amount.
SECTION 2. Grant of Security Interest. The Company hereby grants to the
Purchaser, to secure the payment of the Notes, a security interest in and so
pledges and assigns to the Purchaser a security interest in all of its right,
title and interest to the following:
2.1. presently existing and hereafter arising accounts, contract rights,
and all other forms of obligations owing to the Company arising out of the sale
or lease of goods or the rendition of services by the Company, whether or not
earned by performance, and any and all credit insurance, guaranties, and other
security therefor, as well as all merchandise returned to or reclaimed by the
Company and the Company's Books relating to any of the foregoing (collectively,
"Accounts");
2.2. present and future general intangibles and other personal property
(including choses or things in action, goodwill, patents, trade names,
trademarks, servicemarks, copyrights, blueprints, drawings, purchase orders,
customer lists, monies due or recoverable from pension funds, route lists,
monies due under any royalty or licensing agreements, infringement claims,
computer programs, computer discs, computer tapes, literature, reports, catalogs
deposit accounts, insurance premium rebates, tax refunds, and tax refund claims)
other than goods and Accounts, and the Company's Books relating to any of the
foregoing (collectively, "General Intangibles");
2.3. present and future letters of credit, notes, drafts, instruments,
certificated and uncertificated securities, documents, leases, and chattel
paper, and the Company's Books relating to any of the foregoing (collectively,
"Negotiable Collateral");
2.4. present and future inventory in which the Company has any interest,
including goods held for sale or lease or to be furnished under a contract of
service and all of the Company's present and future raw materials, work in
process, finished goods, and packing and shipping materials, wherever located,
and any documents of title representing any of the above, and the Company's
Books relating to any of the foregoing (collectively, "Inventory");
2.5. books and records including: ledgers; records indicating, summarizing,
or evidencing the Company's assets or liabilities, or the collateral; all
information relating to the Company's business operations or financial
condition; and all computer programs, disc or tape files, printouts, funds or
other computer prepared information, and the equipment containing such
information (collectively, "Company's Books");
2.6. substitutions, replacements, additions, accessions, proceeds, products
to or of any of the foregoing, including, but not limited to, proceeds of
insurance covering any of the foregoing, or any portion thereof, and any and all
Accounts, General Intangibles, Negotiables, Collateral, Inventory, money,
deposits, accounts, or other tangible or intangible property resulting from the
sale or other disposition of the accounts, General Intangibles, Negotiable
Collateral, Inventory or any portion thereof or interest therein and the
proceeds thereof.
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SECTION 3. Registration Rights.
3.1. Request for Registration. If the Company proposes to register any of
its securities under the Securities Act of 1933, as amended ("Act") (except for
registrations on Forms S-8 or S-4 or their equivalent), it will give written
notice by registered mail, at least twenty (20) days prior to the filing of each
such registration statement, to the Purchaser of its intention to do so. If the
Purchaser notifies the Company within ten (10) days after receipt of any such
notice of its desire to include any of the Warrant Shares or Conversion Shares
(together, the "Underlying Shares"), the Company shall afford the Purchaser the
opportunity to have any such Underlying Shares registered under such
registration statement at the Company's sole cost and expense; provided,
however, that the Purchaser shall not have any registration rights with respect
to that certain registration on Form SB-2 to be filed with the Securities and
Exchange Commission with respect to the Private Equity Credit Agreement entered
into by the Company on January __, 2005, or any amendments thereto.
3.2. Limitations on Registration.
(a) Termination of Registration Rights. These rights may be exercised at
any time on an unlimited number of occasions after the date hereof until such
time when all Underlying Shares may be sold without volume restrictions pursuant
to Rule 144(k) as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company's
transfer agent and the Purchaser.
(b) Underwritten Offerings. In connection with any offering involving an
underwriting of shares being issued by the Company, the Company shall not be
required to include any Underlying Shares in such underwriting unless such
Purchaser accepts the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it, and then only in such quantity as
will not, in the reasonable opinion of the underwriters, jeopardize the success
of the offering by the Company. If the underwriters reasonably believe the total
amount of Underlying Shares which the Purchaser requests to be included in an
underwritten offering pursuant to this Section 3, together with any other shares
of Common Stock for which registration has been requested by holders with
similar rights, exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, the Company
shall only be required to include in the offering so many of the Underlying
Shares and such other shares of Common Stock as the underwriters reasonably
believe will not jeopardize the success of the offering, such shares so included
to be apportioned pro rata among the Purchaser and other holders based on the
number of shares for which registration was initially requested.
SECTION 4. Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated.
SECTION 5. Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand, sent via overnight courier, sent by facsimile, or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
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if to the Company, to:
Global Matrechs, Inc.
90 Grove Street, Suite 201
Ridgefield, Connecticut 06877
Attn: Michael Sheppard
Facsimile: (203)431-6665
with a copy to:
Foley Hoag LLP
155 Seaport Boulevard
Boston, MA 022110
Attn: David A. Broadwin, Esq.
Facsimile: (617) 832-7000
if to the Purchaser, to:
Southridge Partners LP
c/o Krieger & Prager LLP
39 Broadway, Suite 1440
New York, NY 10006
Attention: Samuel Krieger
Facsimile: 212-363-2999
SECTION 6. Severability. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 7. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York for contracts
to be wholly performed in such state and without giving effect to the principles
thereof regarding the conflict of laws. Each of the parties consents to the
exclusive jurisdiction of the federal courts whose districts encompass any part
of the County of New York or the state courts of the State of New York sitting
in the County of New York in connection with any dispute arising under this
Agreement or any of the other Transaction Agreements and hereby waives, to the
maximum extent permitted by law, any objection, including any objection based on
FORUM NON CONVENIENS, to the bringing of any such proceeding in such
jurisdictions. Each of the parties hereto expressly waives its right to a trial
by jury with respect to any adjudication arising between the parties pursuant to
this Agreement.
SECTION 8. Entire Agreement. This Agreement contains the entire agreement
of the parties with respect to the subject matter hereof and supersedes and is
in full substitution for any and all prior oral or written agreements and
understandings between them related to such subject matter, and neither party
hereto shall be liable or bound to the other party hereto in any manner with
respect to such subject matter by any representations, indemnities, covenants or
agreements except as specifically set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be executed as of the date first above written by their duly
authorized representatives shown below:
GLOBAL MATRECHS, INC.
By: /s/ Michael Sheppard
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Name: Michael Sheppard
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Title: President
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SOUTHRIDGE PARTNERS LP
By: Southridge Capital Management LLC
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Its: General Partner
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By: /s/ Stephen M. Hicks
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Name: Stephen M. Hicks
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Title: General Partner and President
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