NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this “
”) is made as of June [●], 2012 by and among[XXX], a [XXX] corporation (the “
”), and [Investor] (the “
The Company currently requires funds to help finance its operations as it pursues its nextround of equity financing.
The Investor is willing to advance funds to the Company in exchange for the issuance toit of a Senior Secured Convertible Note, evidencing the Company’s obligation to repaythe Investor’s loan of the advanced funds.
The Note (as defined below) will automatically be secured by the assets of the Company pursuant to that certain Security Agreement, dated as of [XXXX], by and amongCompany, the Collateral Agent and the Secured Creditors (each as defined therein), asamended to date (the “
”). NOW THEREFORE, the parties hereby agree as follows.
PURCHASE AND SALE OF NOTE .
Subject to the terms and conditions of thisAgreement, the Company agrees to sell to the Investor, and the Investor agrees to purchase from theCompany, a Third Amended and Restated Senior Secured Convertible Note in the form attached to thisAgreement as Exhibit A (the “
” and, together with this Agreement, the “
”) inthe principal amount of $[XXX].
The purchase and sale of the Note will take place remotely via the exchangeof documents and signatures on the date of this Agreement or at such other time and place as theCompany and the Investor mutually agree upon, orally or in writing (which time and place are designatedas the “
”). At the Closing, the Investor will deliver to the Company as payment in full for the Note, 1,500,000.00 by wire transfer of funds to the Company.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY .
The Companyhereby represents and warrants to the Investor that the statements in the following paragraphs of thisSection3are all true and complete as of immediately prior to the Closing.
Organization, Good Standing and Qualification
. The Company has been dulyincorporated and organized, and is validly existing in good standing, under the laws of the State of Delaware. The Company has the corporate power and authority to own and operate its properties andassets and to carry on its business as currently conducted and as presently proposed to be conducted.
. All corporate action on the part of the Company’s board of directors and stockholders necessary for the authorization, execution, delivery of, and the performance of all obligations of the Company under, the Financing Documents has been taken or will be taken prior tothe Closing. The Financing Documents, when executed and delivered by the Company, will constitute,valid and legally binding obligations of the Company, enforceable against the Company in accordancewith their respective terms, except as may be limited by (a) applicable bankruptcy, insolvency,reorganization or other laws of general application relating to or affecting the enforcement of creditors’rights generally and (b) the effect of rules of law governing the availability of equitable remedies.