Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - GULFSTREAM INTERNATIONAL GROUP INC | gia_8k.htm |
| EX-10.3 - FORM OF REGISTRATION RIGHTS AGREEMENT - GULFSTREAM INTERNATIONAL GROUP INC | gia_ex103.htm |
| EX-10.2 - FORM OF WARRANT - GULFSTREAM INTERNATIONAL GROUP INC | gia_ex102.htm |
EXHIBIT
10.1
UNIT
PURCHASE AGREEMENT
This Unit Purchase Agreement ("Agreement"), is made and
entered into as of the 29th day
of January 2010 (the “Effective
Date”) by and between GULFSTREAM INTERNATIONAL GROUP,
INC., a Delaware corporation (the “Company”) having an executive
office located at 3201 Griffin Road, 4th
Floor, Fort Lauderdale, Florida 33312; and the Persons who have executed this
Agreement on the Purchaser Signature Page (individually, the “Purchaser” and collectively,
the “Purchasers”). The Company
and each Purchaser is hereinafter sometimes referred to individually as a “Party” and the Company and all
Purchasers are hereinafter sometimes referred to collectively as the “Parties.”
RECITALS:
A. The
Company desires to sell units of its equity securities hereinafter described
(the “Units”) to the
Purchasers to provide the Company with additional working capital.
B. The
Purchasers are willing to purchase the Units in the maximum amount of
$1,500,000, all upon the terms and subject to the conditions hereinafter set
forth.
C. As
a material inducement to cause the Purchasers to enter into this Agreement and
purchase the Units, the Company has agreed to enter into this
Agreement.
NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties contained in this Agreement, the Parties hereto agree as
follows:
DEFINITIONS
As used
in this Agreement, the following terms shall have the meanings set forth
below:
“Applicable Law” means any
domestic or foreign law, statute, regulation, rule, policy, guideline or
ordinance applicable to the Company and its Subsidiaries.
“Affiliate” means any one or
more Person controlling, controlled by or under common control with any other
Person or their affiliate.
“Business Day” shall mean any
day, excluding Saturday, Sunday and any other day on which national banks
located in New York, New York shall be closed for business.
“Certificate of Incorporation”
shall mean the certificate of incorporation of the Company, as amended to
date.
“Closing Date” shall, with
respect to each Purchaser, be that date on or before the date of expiration of
the Offering Period on which such Purchaser shall subscribe to the Units and
such subscription shall be accepted by the Company’s execution and delivery of
this Agreement.
“Common Stock” shall mean the
shares of common stock of the Company, $.01 par value per share, that are
authorized for issuance pursuant to the Certificate of
Incorporation.
“Dollar” and “$” means lawful money of the
United States of America.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Financial Statements” shall
have the meaning as is defined in Section 3.4 of this
Agreement.
“GAAP” means generally accepted
accounting principles in the United States of America as promulgated by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board or any successor Institutes concerning the treatment of any
accounting matter.
“Knowledge” means the knowledge
after reasonable inquiry.
“Material Adverse Effect” with
respect to any entity or group of entities means any event, change or effect
that has or would have a materially adverse effect on the financial condition,
business or results of operations of the Company and its Subsidiaries, when
taken as a consolidated whole.
“National Securities Exchange”
means the collective reference to the New York Stock Exchange, the NYSE Amex
Exchange, the Nasdaq Stock Exchange, the FINRA OTC Bulletin Board or any other
recognized national securities exchange in the United States.
“Offeree Questionnaire” means
the questionnaire to be executed by each Purchaser in the form of Exhibit
A annexed hereto and made a part hereof.
“Offering” means the offering
of the Units pursuant to this Agreement.
“Offering Memorandum” shall
mean the confidential private placement memorandum of the Company dated as of
November 23, 2009, in the form of Exhibit
C annexed hereto and made a part hereof.
“Offering Period” shall mean
the period that commenced as of the Effective Date and shall expire on February
28, 2010, unless such Offering Period shall be extended by the Company as
provided in Section 1.6 below.
“Person” means any individual,
corporation, partnership, trust or unincorporated organization or a government
or any agency or political subdivision thereof.
“Purchase Price” shall mean the
total purchase price paid by each Purchaser to the Company for all Units sold to
such Purchaser; which Purchase Price shall be the product of multiplying (a) the
number of Units sold in this Offering, by (b) the Unit Purchase
Price.
“Placement Agent” means
____________________.
“Registration Rights
Agreement” means the registration rights agreement between the Company
and each Purchaser in substantially the form of Exhibit
D annexed hereto and made a part hereof.
“Shares” means the
collective reference to (a) the Common Stock included in the Units, and (b) the
Warrant Shares.
-2-
“Subsidiary” of any Person
means another Person, an amount of the voting securities, other voting ownership
or voting partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if there are no
such voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first Person.
“Tax” (and, with correlative
meaning, “Taxes” and
“Taxable”) means the
collective reference to: (i) any income, alternative or add-on minimum tax,
gross receipts tax, sales tax, use tax, ad valorem tax, transfer tax, franchise
tax, profits tax, license tax, withholding tax, payroll tax, employment tax,
excise tax, severance tax, stamp tax, occupation tax, property tax,
environmental or windfall profit tax, custom, duty or other tax, impost, levy,
governmental fee or other like assessment or charge of any kind whatsoever
together with any interest or any penalty, addition to tax or additional amount
imposed with respect thereto by any governmental or Tax authority responsible
for the imposition of any such tax (domestic or foreign); (ii) any liability for
the payment of any amounts of the type described in clause (i) above as a result
of being a member of an affiliated, consolidated, combined or unitary group for
any Taxable period, and (iii) any liability for the payment of any amounts of
the type described in clauses (i) or (ii) above as a result of any express or
implied obligation to indemnify any other person.
“Tax Return” means any return,
declaration, form, claim for refund or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including any
amendment thereof.
“Transaction Documents” means
the collective reference to this Agreement, the Offeree Questionnaire, the
Warrant, the Registration Rights Agreement and the Offering
Memorandum.
“Units” means a minimum of
$1,000,000 and a maximum of $1,500,000 of Common Stock and Warrants of the
Company offered pursuant to this Agreement; each Unit to consist of (a) one
share of Common Stock, and (b) a Warrant to purchase three-quarters (0.75) of a
share of Common Stock.
“Unit Purchase Price” shall
mean the purchase price for each Unit offered hereby which shall be calculated
in accordance with Section 1.1(c) of
this Agreement.
“Warrant” or “Warrants” means the individual
or collective reference to the warrant to purchase shares of Common Stock of the
Company that are included in each of the Units, and in the form of Exhibit
B annexed hereto and made a part hereof.
“Warrant Shares” means the
shares of Common Stock that are issuable upon exercise of the
Warrants
-3-
ARTICLE
I
PURCHASE AND SALE OF THE
UNITS
Section 1.1 Purchase
and Sale of Units.
(a) Terms of the
Unit. Upon the terms and conditions set forth in this
Agreement, the Company is Offering Units to each Purchaser consisting of (i) one
(1) share of the Common Stock of the Company, and (ii) a Warrant to purchase
three-quarters (0.75) of a share of Common Stock of the Company.
(b) Maximum Dollar Amount of
Units. A maximum amount of $1,500,000 of Units will be sold in the
Offering during the Offering Period, subject to increase as provided in Section 1.6(a)
below.
(c) Unit Purchase Price.
Each Unit shall be priced on the Closing Date applicable to each
Purchaser, and such price (the “Unit Purchase Price”) shall be
equal to $1.40. Accordingly, the Company shall issue to each
Purchaser on the Closing Date applicable to such Purchaser, that number of
shares of Common Stock as shall determined by dividing (i) 100% of the proceeds
received from such Investor, by (ii) the Unit Purchase Price.
Section
1.2 Minimum Purchase.
Each Purchaser shall purchase and pay for not less than 10,000 Units, consisting
of 10,000 shares of Common Stock and Warrants entitling the holder to purchase
an additional 7,500 shares of Common Stock (the “Minimum Units”); provided,
however, that the Company and the Placement Agent may agree to permit a
Purchaser to purchase and receive less than the Minimum Units.
Section
1.3 The
Warrants. As part of the Units, each Purchaser shall be issued a Warrant
which shall:
(a) entitle the Purchaser or any
subsequent holder of such Warrant, to purchase that number of shares of Common
Stock as shall be equal to seventy-five percent (75%) of the number of shares of
Common Stock included in all Units purchased by the Purchaser;
(b) expire July 29,
2013;
(c) have an initial exercise price
of $3.00 per share of Common Stock, subject to certain adjustments, as provided
therein;
(d) be exercisable beginning six
(6) months after the date of issuance; and
(e) be substantially in the form
of the Warrant attached hereto as Exhibit
B and made a part hereof.
Section
1.4 Warrant
Shares. The Company has authorized and has reserved and covenants to
continue to reserve, free of preemptive rights and other similar contractual
rights of stockholders, a number of shares of Common Stock equal to one hundred
ten percent (110%) of the number of Warrant Shares.
-4-
Section 1.5 Method of Subscription and
Payment of Purchase Price.
(a) Subject to the terms and
conditions hereof, on each Closing Date the Company agrees to issue and sell to
the applicable Purchaser and, in consideration of and in express reliance upon
the representations, warranties, covenants, terms and conditions of this
Agreement, such Purchaser agrees to purchase, for the Unit Purchase Price, that
number of Units as are set forth on the signature page of this Agreement next to
the name of such Purchaser, and pay to the Company the total Purchase Price for
such Units.
(b) Payment of the Purchase Price
shall be made either:
(i) by
check payable to the order of “Anslow & Jaclin, LLP-Attorney
Trust Account” and referencing “Gulfstream International Group,
Inc.;” or
(ii) by wire
transfer of immediately available funds to the following account maintained by
the Placement Agent:
| Receiving Bank Name: | Wachovia Bank | |
| Receiving Bank ABA#: | 031201467 | |
| Receiving Bank Address: | Freehold, New Jersey | |
| Beneficiary’s Name: | Anslow & Jaclin, LLP—Attorney Trust Account | |
| Reference: | Gulfstream International Group, Inc. | |
| Beneficiary’s Account #: | 2000013292968 |
(c) Each Purchaser shall,
simultaneous with his, her or its payment of the Purchase Price for the Units
purchased, execute and deliver to the Placement Agent:
(i) The
Purchaser Signature Page to this Agreement;
(ii) The
Offeree Questionnaire (Exhibit
A) completed by the Purchaser; and
(iii) The
signature page to the Registration Rights Agreement (Exhibit
D).
(d) On or promptly following such
Closing Date, the Company shall execute and deliver to such Purchaser the
applicable Warrant included in the Units purchased.
Section
1.6 Closing; Multiple
Closings.
(a) The Units shall be sold to
each Purchaser at a Closing held on the Closing Date applicable to such
Purchaser, and the Company and the Placement Agent shall conduct multiple
Closings of sales of Units through and including the date of expiration of the
Offering Period. There shall be no minimum number or dollar amount of
Units that must be sold to complete this Offering and all proceeds received from
sales of Units during the Offering Period, less applicable compensation payable
to the Placement Agent, shall be remitted directly to the Company.
(b) Provided that the Units shall
have been properly subscribed for by the applicable Purchaser, funds
representing the sale thereof shall have cleared, and all conditions to Closing
have been satisfied or waived, the Closing of the purchase and sale of Units by
each Purchaser shall take place at the offices of the Placement Agent, 650 Fifth
Avenue, New York, New York 10019, (the “Closing”) on any Closing Date
which shall be not later than the expiration date of the Offering Period;
provided, that the expiration date of the Offering Period may be extended for up
to an additional 45 days at the sole discretion of the Company.
-5-
Section
1.7 Exemption
from Registration. The Parties intend that the Units to be
issued by the Company to the Purchasers shall be exempt from the registration
requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to
Section 4(2) of the Securities Act and the rules and regulations promulgated
thereunder.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF THE PURCHASERS.
Each of
the Purchasers individually (and not jointly) hereby represents and warrants to
the Company as follows:
Section 2.1 Authorization and
Power. Such Purchaser has the requisite power and authority to enter into
and perform this Agreement and each of the other Transaction Documents to which
such Purchaser is a party and to purchase the Units being sold to him, her or it
hereunder. The execution, delivery and performance of this Agreement and each of
the other Transaction Documents to which such Purchaser is a party by such
Purchaser and the consummation by him, her or it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
individual, corporate, partnership or limited liability company action (as
applicable), and no further consent or authorization of such Purchaser or other
Person, is required. This Agreement and each of the other Transaction Documents
to which such Purchaser is a party has been duly authorized, executed and
delivered by such Purchaser and constitutes, or shall constitute when executed
and delivered, a valid and binding obligation of such Purchaser enforceable
against such Purchaser in accordance with the terms hereof.
Section
2.2 No
Conflicts.The execution, delivery and performance of this Agreement and
each of the other Transaction Documents to which such Purchaser is a party and
the consummation by such Purchaser of the transactions contemplated hereby and
thereby or relating hereto do not and will not (i) if applicable, result in a
violation of such Purchaser’s charter documents, bylaws, operating agreement,
partnership agreement or other organizational documents or (ii) 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 or
instrument or obligation to which such Purchaser is a party or by which his, her
or its properties or assets are bound, or result in a violation of any law,
rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to such Purchaser. Such Purchaser is not required
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 any other
Transaction Document to which such Purchaser is a party or to purchase the Units
in accordance with the terms hereof, provided, that for purposes of the
representation made in this sentence, such Purchaser is assuming and relying
upon the accuracy of the relevant representations and agreements of the Company
herein.
Section
2.3 Status
of Purchaser. Each Purchaser is an “accredited investor” as defined in
Regulation D, a “qualified institutional buyer” as defined in Rule 144A, or a
“non-US person” as defined in Regulation S. Such Purchaser is not required to be
registered as a broker-dealer under Section 15 of the Exchange Act and such
Purchaser is not a broker-dealer, nor an affiliate of a
broker-dealer.
-6-
Section 2.4 Acquisition for
Investment. Each Purchaser is acquiring the Units, the Common Stock, the
Warrants and the Warrant Shares (collectively, the “Securities”) solely for his,
her or its own account for the purpose of investment and not with a view to or
for sale in connection with a distribution. The Purchaser does not have a
present intention to sell the Securities, nor a present arrangement (whether or
not legally binding) or intention to effect any distribution of the Securities
to or through any person or entity; provided, however, that by
making the representations herein (except as provided below), such Purchaser
does not agree to hold the Securities for any minimum or other specific term and
reserves the right to dispose of the Securities at any time in accordance with
Federal and state securities laws applicable to such disposition.
Section
2.5 Risks of
Investment. Each Purchaser acknowledges that such Purchaser
has read and understands the risk factors set forth in the Offering Memorandum,
is able to bear the financial risks associated with an investment in the
Securities, and has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company’s stage of development
so as to be able to evaluate the risks and merits of its investment in the
Company. Each Purchaser further acknowledges that that the purchase of the
Securities involves a significant degree of risk.
Section
2.6 Reliance on
Exemptions. The Purchaser understands that the Securities are
being offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that the Company is relying upon the truth and accuracy of, and the Purchaser’s
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
the Securities.
Section
2.7 Information. The
Purchaser and his, her or its advisors, if any, have (a) received and carefully
reviewed a copy of the Offering Memorandum, and (b) had the opportunity to ask
questions of management of the Company and its Subsidiaries and have been
furnished with all information relating to the business, finances and operations
of the Company and information relating to the offer and sale of the Units which
have been requested by the Purchaser or its advisors. Neither such
inquiries nor any other due diligence investigation conducted by the Purchaser
or any of its advisors or representatives shall modify, amend or affect the
Purchaser’s right to rely on the representations and warranties of the Company
contained herein. The Purchaser further represents to the Company
that the Purchaser’s decision to enter into this Agreement has been based solely
on the independent evaluation of the Purchaser and its
representatives.
Section
2.8 Governmental
Review. The Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the
Securities.
Section
2.9 Transfer or
Re-sale. The Purchaser understands that except as
provided in the Registration Rights Agreement, the sale or re-sale of the
Securities has not been and is not being registered under the Securities Act or
any applicable state securities laws, and the Securities may not be transferred
unless (i) the Securities are sold pursuant to an effective registration
statement under the Securities Act, (ii) the Purchaser shall have delivered
to the Company an opinion of counsel that shall be in form, substance and scope
customary for opinions of counsel in comparable transactions to the effect that
the Securities to be sold or transferred may be sold or transferred pursuant to
an exemption from such registration, which opinion shall be reasonably
acceptable to the Company, (iii) the Securities are sold or transferred to
an “affiliate” (as defined in Rule 144 promulgated under the Securities Act (or
a successor rule) (“Rule
144”)) of the Purchaser who agrees to sell or otherwise transfer the
Securities only in accordance with this Section 2.9 and who is an Accredited
Purchaser, (iv) the Securities are sold pursuant to Rule 144, or
(v) the Securities are sold pursuant to Regulation S under the Securities
Act (or a successor rule) (“Regulation
S”). Notwithstanding the foregoing or anything else contained
herein to the contrary, the Securities may be pledged as collateral in
connection with a bona
fide margin account or other lending arrangement.
-7-
Section
2.10 Legends. The
Purchaser understands that the Common Stock, the Warrants and the Warrant Shares
shall bear a restrictive legend in the form as set forth below. The
Purchaser understands that, until such time as the resale of the Common Stock or
the Warrant Shares have been registered under the Securities Act as contemplated
by the Registration Rights Agreement or otherwise may be sold pursuant to Rule
144 or Regulation S without any restriction as to the number of securities as of
a particular date that can then be immediately sold, the Shares may bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of the certificates evidencing such
Securities):
“Neither
the offer nor sale of the securities represented by this certificate has been
registered under the Securities Act of 1933, as amended, (the “Act”). The
securities may not be sold, transferred or assigned in the absence of an
effective registration statement for the securities under the Act, or an opinion
of counsel, in form, substance and scope customary for opinions of counsel in
comparable transactions, that registration is not required under the Act or
unless sold pursuant to Rule 144 or Regulation S under the Act.”
Section
2.11 Residency. The
Purchaser is a resident of the jurisdiction set forth immediately below such
Purchaser’s name on the signature pages hereto.
Section
2.12 Non-Compliance with
Continued Listing Standards of NYSE Amex Exchange.
The Purchaser acknowledges that the Company is currently not in compliance with
certain continued listing standards of the NYSE Amex Exchange, including
compliance with specified minimum stockholders equity thresholds when an issuer
sustains net losses over a number of years. The Company has not met
the threshold set forth in Section 1003(a) of the NYSE Amex Exchange’s Company
Guide because, for the 2008 fiscal year, the Company has stockholder’s equity of
less than $2 million and losses from continuing operations and/or net losses in
two out of its three most recent fiscal years. As a result, the Company
has received a notice from the NYSE Amex Exchange that it has not met this
continued listing requirement.
-8-
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The
Company hereby represents and warrants to the Purchasers, as
follows:
Section 3.1 Organization and Good
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company has the corporate power to own its own property
and to carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material negative impact.
Section 3.2 Authority. The
Company has the corporate power to enter into this Agreement and to perform its
obligations hereunder, including the issuance of the Units. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of the Company as required by Delaware law. The execution
and performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
the Company is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to the Company or its
properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the respective Certificate of
Incorporation or by-laws of the Company.
Section 3.3 Exchange Act Filings;
Exchange Listing.
(a) The
Company has timely filed and will continue to file (in each case, subject to
12b-25 extensions) all Form 10-KSB, Form 8-K, Form 10-Q, Form 14-A Proxy
Statements and other forms and periodic reports (collectively, SEC Reports”) required to be
filed under the Exchange Act, and is a full reporting company under Section 13
or 15(d) of the Exchange Act..
(b) The
disclosures set forth and to be set forth in the SEC Reports are and will be
true and correct in all material respects, do not and will not contain any
untrue statement of a material fact or omit or will omit to state any fact
necessary to make any statement therein not materially misleading.
(c) The
Common Stock is listed for trading on the NYSE:Amex Exchange (the “AMEX”) and, except as
otherwise disclosed in the SEC Reports, the Company has (i) complied in all
material respects with the rules and regulations of the AMEX, and (ii) no reason
to believe that its Common Stock will be delisting from trading on such
securities exchange.
Section 3.4 Company Financial
Statements.
The
Company has furnished to the Purchasers the unaudited consolidated balance sheet
as at December 31, 2008 and consolidated statement of operations and statement
of cash flows of the Company and its Subsidiaries for the fiscal year then
ended, and the unaudited consolidated balance sheet as at September 30, 2009 and
the unaudited consolidated statement of operations of the Company and its
Subsidiaries for the nine (9) months then ended (collectively, the “Company Financial
Statements”). Except as set forth on the balance sheet dated
September 30, 2009, as at such date, the Company and its Subsidiaries has no
other material assets and has incurred no other material liabilities, debts or
obligations, whether fixed, contingent or otherwise required to be set forth on
a balance sheet prepared in accordance with GAAP. The books of
account and other financial records of the Company are in all respects complete
and correct in all material respects and are maintained in accordance with good
business and accounting practices.
-9-
Section 3.5 No Material Adverse
Effects. Except as set forth in the SEC Reports or disclosed
in the Offering Memorandum, since September 30, 2009:
(a) there
has not been any material adverse change in the financial position of the
Company and its Subsidiaries (collectively, the “Company Group”) except changes
arising in the ordinary course of business, which changes will in no event have
a Material Adverse Effect on the financial position of the Company Group, and
will be consistent with the representations made by the Company
hereunder.
(b) there
has not been any damage, destruction or loss that would have a Material Adverse
Effect on the assets, prospective business, operations or condition (financial
or otherwise) of the Company Group whether or not covered by
insurance;
(c) there
has not been any declaration setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of the
Common Stock;
(d) there
has not been any sale of an asset (other than in the ordinary course of
business) or any mortgage pledge by the Company Group of any properties or
assets; or
(e) there
has not been adoption or modification of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or
arrangement.
(f) there
has not been any loans or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loans or
advance otherwise than in the ordinary course of business;
(g) except
in the ordinary course of business, there has not been any increase in the
annual level of compensation of any executive employee of the Company Group;
and
(h) the
Company Group has not issued any equity securities or rights to acquire equity
securities.
Section 3.6 Taxes. The
Company Group has timely filed all material tax, governmental and/or related
forms and reports (or extensions thereof) due or required to be filed and has
paid or made adequate provisions for all taxes or assessments which have become
due as of the Closing Date, and there are no deficiencies
outstanding.
Section 3.7 Compliance with
Laws. The Company Group has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business,
which, if not complied with, would have a Material Adverse Effect.
Section 3.8 Actions and
Proceedings. The Company Group is not a Party to any pending
litigation or, to its knowledge, any governmental proceedings are threatened
against the Company Group, that could reasonably be expected to have a Material
Adverse Effect.
-10-
Section
3.9 Access
to Records. The corporate financial records, minute books, and
other documents and records of the Company have been made available to the
Purchasers prior to the Closing hereof.
Section 3.11 Brokers or
Finders. Except for the payment to the Placement Agent of (a)
commissions in the amount of 9% of the total Purchase Price received by the
Company from the Offering from the sale of all Units, (b) a non-accountable
expense allowance equal to 2% of the total Purchase Price received by the
Company from the Offering from the sale of all Units, and (c) warrants (the
“Placement Agent
Warrants”) entitling the holder to receive Common Stock and warrants
equal to 8% of the aggregate number of Units sold in the Offering (collectively,
the “Placement Agent
Compensation”), no commissions, brokers' fees or finder's fee will be
payable by the Company in connection with the transactions contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions of the
Company.
Section 3.12 Expenses. It
is understood and agreed that following the execution of this Agreement, any and
all legal or other fees and expenses with respect to any filings, documentation
and related matters with respect to the consummation of the transactions
contemplated hereby shall be the sole responsibility of the Company, and that
the Purchasers shall not be responsible for any such expenses or legal or other
fees.
ARTICLE
IV
CONDITIONS
Section
4.1 Conditions Precedent to the
Obligation of the Company to Sell the Units. The obligation hereunder of
the Company to issue and sell the Units, the Common Stock and the Warrants to
each Purchaser is subject to the satisfaction or waiver, on or before the
applicable Closing Date, of each of the conditions set forth below. These
conditions are for the Company’s sole benefit and may be waived by the Company
at any time in its sole discretion.
(a) Accuracy of Each Purchaser’s
Representations and Warranties. The representations and warranties of
each Purchaser in this Agreement and each of the other Transaction Documents to
which such Purchaser is a party 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 are expressly made as
of a particular date, which shall be true and correct in all material respects
as of such date.
(b) Performance by the
Purchaser. Each Purchaser shall have performed, satisfied and complied in
all respects with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by such Purchaser at or
prior to the Closing.
(c) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of
the transactions contemplated by this Agreement.
(d) Delivery of Purchase
Price. The Purchase Price for the Units delivered by the applicable
Purchaser to the Placement Agent and such funds shall have cleared.
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(e) Delivery of Transaction
Documents. The Transaction Documents to which the Purchaser is a party
shall have been duly executed and delivered by the applicable Purchaser to the
Placement Agent or the Company.
Section
4.2 Conditions Precedent to the
Obligation of the Purchaser to Purchase the Units. The obligation
hereunder of each Purchaser to acquire and pay for the Units is subject to the
satisfaction or waiver, at or before the applicable Closing Date, of each of the
conditions set forth below. These conditions are for each Purchaser’s sole
benefit and may be waived by such Purchaser at any time in its sole
discretion.
(a) Accuracy of the Company’s
Representations and Warranties. Each of the representations and
warranties of the Company in this Agreement and the other Transaction Documents
shall be true and correct in all 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 are expressly made as of a particular date, which shall be true
and correct in all respects as of such date.
(b) Performance by the
Company. The Company shall have performed, satisfied and complied in all
respects with all 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.
(c) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of
the transactions contemplated by this Agreement.
(d) No Proceedings or
Litigation. No action, suit or proceeding before any arbitrator or any
governmental authority shall have been commenced, and no investigation by any
governmental authority shall have been threatened, against the Company or any
Subsidiary, or any of the officers, directors or affiliates of the Company or
any Subsidiary seeking to restrain, prevent or change the transactions
contemplated by this Agreement, or seeking damages in connection with such
transactions.
(e) Registration Rights
Agreement. On the Closing Date, the Company shall have executed and
delivered the Registration Rights Agreement to the Placement Agent for the
benefit of the Purchaser.
(f) Stock Certificates and
Warrant. On or before the applicable Closing Date, the Company shall have
executed and delivered to the Placement Agent for the benefit of the Purchaser
the certificates (in such denominations as such Purchaser shall request) for the
Common Stock and the Warrant being acquired by such Purchaser at the applicable
Closing (in such denominations as such Purchaser shall request) to such address
set forth next to the name of the Purchaser on the Purchaser Signature Page to
this Agreement.
(g) Reservation of
Shares. 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, a number of shares of Common Stock equal to one
hundred ten percent (110%) of the aggregate number of Warrant Shares issuable
upon exercise of the number of Warrants issued or to be issued pursuant to this
Agreement.
(h) Material Adverse
Effect. No Material Adverse Effect shall have occurred at or before the
Closing Date.
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ARTICLE
V
MISCELLANEOUS
Section 5.1 Survival of
Representations. Notwithstanding any right of either Party to
investigate the affairs of the other Party, each Party has the right to rely
fully upon representations, warranties, covenants and agreements of the other
Party contained in this Agreement or in any document delivered to one by the
other or any of their representatives, in connection with the transactions
contemplated by this Agreement. All such representations, warranties,
covenants and agreements shall survive the execution and delivery hereof and the
closing hereunder for twelve (12) months following the Closing.
Section 5.2 Waivers. The
waiver of a breach of this Agreement or the failure of any Party hereto to
exercise any right under this Agreement shall in no way constitute waiver as to
future breach whether similar or dissimilar in nature or as to the exercise of
any further right under this Agreement.
Section 5.3 Amendment. This
Agreement may be amended or modified only by an instrument of equal formality
signed by the Parties or the duly authorized representatives of the respective
Parties.
Section 5.4 Assignment. This
Agreement is not assignable except by operation of law.
Section 5.5 Notice. Any
notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other Party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
Section 5.6 Governing
Law. This Agreement shall be construed, and the legal
relations between the Parties determined, in accordance with the laws of the
State of New York, thereby precluding any choice of law rules which may direct
the application of the laws of any other jurisdiction.
Section 5.7 Publicity. No
publicity release or announcement concerning this Agreement or the transactions
contemplated hereby shall be issued by either Party hereto at any time from the
signing hereof without advance approval in writing of the form and substance by
the other Party.
Section 5.8 Entire
Agreement. This Agreement and the Units executed in connection
with the consummation of the transactions contemplated herein contain the entire
agreement among the Parties with respect to the transactions contemplated
hereby, and supersedes all prior agreements, written or oral, with respect
hereof.
Section 5.9 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
Section 5.10 Severability of
Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or provision of this
Agreement shall in no way affect the validity or enforcement of any other
provision or any part thereof.
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Section 5.11 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed, shall constitute an original copy hereof, but all of which together
shall consider but one and the same document.
Section 5.12 Binding
Effect. This Agreement shall be binding upon the Parties
hereto and inure to the benefit of the Parties, their respective heirs,
administrators, executors,
successors
and assigns.
Section 5.13 Facsimile
Signatures. This Agreement and the Transaction Documents may
be executed and delivered by facsimile or pdf electronic mail, and all
signatures shall, for purposes of this Agreement and such transaction documents,
be deemed to be originals and legally binding upon such signatory.
[the
balance of this page intentionally left blank - signature pages
follow]
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IN WITNESS WHEREOF, the
Parties have executed this Agreement on the date first above
written.
| GULFSTREAM INTERNATIONAL GROUP, INC. | |||
| (a Delaware corporation) | |||
|
|
By:
|
/s/ | |
| David Hackett, President | |||
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| Purchaser Signature Page 16 of 16 | |||
|
|
By:
|
||
| Name | |||
| Title | |||
|
[Name
of Purchaser – individual]
|
|||
|
|
|
||
| Name | |||
| Address of Purchaser | |||
| telephone: | |||
| fax: | |||
| email: | |||
|
Number of Units
Purchased: _____________
|
|||
| (Minimum 10,000 Units) | |||
| Total Purchase Price: $______________ | |||
| (No. of Units Purchased x the Unit Purchase Price) |
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