ex10_1.htm






Exhibit 10.1

 

SECURITIES PURCHASE AGREEMENT

 

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated June 5, 2009, between Vantage Drilling Company, a Cayman Islands exempted corporation (the “Company”), each purchaser identified
on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”), and Westlake Securities, L.L.C. (the “Placement Agent”).

 

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act (as defined below) and Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the
Company as more fully described in this Agreement.

 

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:

 

ARTICLE I.

DEFINITIONS

 

1.1           Definitions.  In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:

 

“Action” shall have the meaning ascribed to such term in Section 3.1(p).

 

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.  With
respect to a Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such Purchaser.

 

 “AK” means Andrews Kurth LLP, special counsel to Placement Agent.

 

“Board of Directors” means the board of directors of the Company.

 

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

 

“Closing” means the closing of the purchase and sale of the Shares pursuant to Section 2.1.

 

“Closing Date” means the Trading Day when all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Securities Purchase Amount and (ii)
the Company’s obligations to deliver the Shares have been satisfied or waived.

 



  



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“Commission” means the United States Securities and Exchange Commission.

 

“Company Counsel” means Chris Edward Celano, Vice President & General Counsel of the Company.

 

 “Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.

 

“Effective Date” means the date that the initial Registration Statement filed by the Company pursuant to the Registration Rights Agreement is first declared effective by the Commission.

 

“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1(k).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“Exempt Issuance” means the issuance of (a) Ordinary Shares or options to employees, officers, directors of the Company or others providing services to the Company pursuant to the Company’s Vantage Drilling Company 2007 Long-Term Incentive Plan, as amended
(the “Stock Incentive Plan”), or pursuant to any stock or option plan or agreement duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose; (b) securities upon the exercise or exchange of or conversion of any securities exercisable or exchangeable for or convertible into Ordinary Shares issued
and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of such securities (c) the Placement Agent Warrant (as defined below); and (d) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Board of Directors or by members of a special committee established for such
purpose, provided that any such issuance shall only be to a Person which is, itself or through its subsidiaries, and in good faith judgment of the Board of Directors, an operating company in a business synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.

 

“F3 Capital Registration Rights Agreement” means that certain Registration Rights Agreement dated June 12, 2008, by and between the Company and F3 Capital.

 

“GAAP” shall have the meaning ascribed to such term in Section 3.1(i).

 

“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(y).

 



  



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“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(u).

 

“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1(b).

 

“Liens” means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

 

“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).

 

“Material Permits” shall have the meaning ascribed to such term in Section 3.1(s).

 

“Ordinary Shares” means the ordinary shares of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed into.

 

“Ordinary Shares Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.

 

“Per Share Purchase Price” equals $1.40, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Ordinary Shares that occur after the date of this Agreement; provided that for any Affiliate
of the Company identified on the Schedule I hereto, the Per Share Purchase Price shall mean $1.66.

 

“Permitted Lien” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; (ii) any statutory Lien arising in the ordinary course
of business by operation of law with respect to a liability that is not yet due or delinquent; and (iii) any minor imperfection of title or similar Lien which individually or in the aggregate with other such Liens does not materially impair the value of the property subject to such Lien or the use of such property in the conduct of the Company’s business; and (iv) a security interest in all the Company’s assets granted pursuant to that certain Credit Agreement dated June 12, 2008, among Emerald Driller
Company, Sapphire Driller Company, Topaz Drilling Company, as borrowers, the Company and certain subsidiaries thereof, as guarantors, the Lenders (as defined therein) and Natixis, as collateral agent.

 

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

 

 “Placement Agent Warrant” shall mean that certain Warrant issuable to the Placement Agent pursuant to Section 2.1(b).

 



  



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“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

 

“Purchaser Party” shall have the meaning ascribed to such term in Section 4.7.

 

“Registration Rights Agreement” means the Registration Rights Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit A attached hereto.

 

“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale by the Purchasers of the Shares.

 

“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).

 

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(i).

 

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“Shares” means the Ordinary Shares of the Company issued or issuable to each Purchaser pursuant to this Agreement.

 

“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable Ordinary Shares).

 

“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.

 

“Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, include any subsidiary
of the Company formed or acquired after the date hereof.

 

“Trading Day” means a day on which the New York Stock Exchange is open for trading.

 

“Trading Market” means the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on the date in question:  the NYSE Amex (f/k/a NYSE Alternext and/or American Stock Exchange), the Nasdaq Capital Market, the Nasdaq
Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange.

 



  



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“Transaction Documents” means this Agreement, the Registration Rights Agreement, the Placement Agent Warrant, the Transfer Agent Instruction Letter, and any other documents or agreements executed and delivered in connection with the transactions contemplated
hereunder.

 

“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of 17 Battery Place, New York, New York 10004 and a facsimile number of (212) 509-5150, and any successor transfer agent of
the Company.

 

“Transfer Agent Instruction Letter” means the letter, dated as of the Closing Date, from the Company to the Transfer Agent in the form attached hereto as Exhibit B.

 

“Warrant Shares” means the Ordinary Shares issued or issuable upon the exercise of the Placement Agent Warrant.

 

ARTICLE II.

PURCHASE AND SALE

 

2.1           Closing.

 

(a)  On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate number of 17,769,535 Shares,
in the individual amounts specified on each Purchaser’s signature page.  Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to its Subscription Amount and the Company shall deliver to each Purchaser its respective Shares, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing.  Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and
2.3, the Closing shall occur at the New York, New York offices of AK or such other location as the parties shall mutually agree.

 

(b)  On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to issue to Placement Agent for an aggregate purchase price of One Hundred US Dollars (US$100.00), at the Closing, a Warrant
to purchase Ordinary Shares, substantially in the form attached as Exhibit C hereto (the “Placement Agent Warrant”), exercisable for the number of 371,429 Ordinary Shares, at an exercise price per share equal to $2.10.

 



  



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2.2           Deliveries.

 

(a)           On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser and the Placement Agent the following:

 

(i)          this Agreement duly executed by the Company;

 

(ii)         a legal opinion of Company Counsel, substantially in the form of Exhibit D-1 attached hereto, which shall also be addressed to the Placement Agent;

 

(iii)        a legal opinion of outside Cayman Islands counsel to the Company, substantially in the form of Exhibit D-2 attached hereto, which shall also be addressed to the Placement Agent;

 

(iv)        a copy of the duly executed Transfer Agent Instruction Letter, substantially in the form of Exhibit B attached hereto;

 

(v)         a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the
name of such Purchaser;

 

(vi)        the Registration Rights Agreement duly executed by the Company;

 

(vii)       copies of good standing certificates, or the equivalent under the laws of the jurisdiction of their incorporation or organization (as applicable), for the Company and any significant Subsidiaries, as of a recent date; and

 

(viii)      a certificate from the Transfer Agent as of a date within five Trading Days of the Closing Date, certifying the number of Ordinary Shares outstanding.

 

(b)           On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:

 

(i)           this Agreement duly executed by such Purchaser;

 

(ii)          a completed investor questionnaire, in the form substantially attached hereto as Exhibit E;

 

(iii)         such Purchaser’s Subscription Amount by wire transfer to the account as specified by the Company in Exhibit F attached hereto; and

 

(iv)        the Registration Rights Agreement duly executed by such Purchaser.

 

(c)           On or prior to the Closing, the Company shall deliver or cause to be delivered to the Placement Agent the Placement Agent Warrant and the fees payable to the Placement Agent.





  



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2.3           Closing Conditions.

 

(a)           The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:

 

(i)          the accuracy when made and on the Closing Date of the representations and warranties of the Purchasers contained herein;

 

(ii)         all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and

 

(iii)        the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.

 

(b)           The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:

 

(i)          the accuracy when made and on the Closing Date of the representations and warranties of the Company contained herein;

 

(ii)         all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;

 

(iii)        the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;

 

(iv)        there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and

 

(v)         from the date hereof to the Closing Date, trading in the Ordinary Shares shall not have been suspended by the Commission or the Company’s principal Trading Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be
terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national
or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of each Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing.

 



 



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ARTICLE III.

REPRESENTATIONS AND WARRANTIES

 

3.1           Representations and Warranties of the Company.  Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or
otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser and the Placement Agent:

 

(a)           Subsidiaries.  All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a) of
the Disclosure Schedules.  The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens other than Permitted Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.  If the Company has no subsidiaries, then all other references to the Subsidiaries
or any of them in the Transaction Documents shall be disregarded.

 

(b)           Organization and Qualification.  The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.  Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.  Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing
as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document; (ii) a material adverse effect on the results of operations, assets, business, condition (financial or otherwise),
or prospects of the Company and the Subsidiaries, taken as a whole; or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power
and authority or qualification.

 

(c)           Authorization; Enforcement.  The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations hereunder and thereunder.  The execution and delivery of each of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection therewith other than in connection with the Required Approvals.  Each
Transaction Document has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 



  



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(d)           No Conflicts.  The execution, delivery and performance of the Transaction Documents by the Company, the issuance and sale of the Shares and the consummation by the Company of the other transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents; (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected; or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.

 

(e)           Filings, Consents and Approvals.  The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than (i) filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Registration Statement, (iii) application(s) to each applicable Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) the filing of Form D with the Commission
and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).

 

(f)           Issuance of the Shares.  The Shares and the Warrant Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents, and applicable state and/or federal securities laws.

 



  



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(g)           Capitalization.  The capitalization of the Company is as set forth on Schedule 3.1(g) of
the Disclosure Schedules, which Schedule 3.1(g) shall also include the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to (i) the exercise of employee stock options or issuance of restricted
stock under the Company’s Stock Incentive Plan or (ii) the conversion or exercise of Ordinary Shares Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act.  No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents.  Except as a result of (1) the purchase and sale of the Shares, (2) the Stock Incentive Plan and
(3) the Placement Agent Warrant, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Ordinary Shares, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional Ordinary Shares or Ordinary Shares
Equivalents.  The issuance and sale of the Shares, the Placement Agent Warrant or the Warrant Shares will not obligate the Company to issue Ordinary Shares or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws, and none of such outstanding Ordinary Shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.  No further approval or authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Shares, the Placement Agent Warrant or the Warrant Shares.  Except as set forth on Schedule 3.1(g),
there are no shareholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.

 

(h)           Registration Rights.  Other than each of the Purchasers and the Placement Agent under the Registration Rights Agreement, F3 Capital under the F3 Capital Registration Rights Agreement, no Person
has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company.

 

(i)             SEC Reports; Financial Statements.  Except as set forth on Schedule 3.1(i),
the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, since March 1, 2008 (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension.  Except to the extent corrected by subsequent SEC Reports or amendments to a prior SEC Reports, as of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The financial statements and supporting schedules of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing.  Such
financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the
Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

 



  



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(j)            Material Changes; Undisclosed Events, Liabilities or Developments.  Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed
on Schedule 3.1(j) hereto, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except
pursuant to existing Company stock option plans.  The Company does not have pending before the Commission any request for confidential treatment of information.  Except for the issuance of the Shares contemplated by this Agreement or as set forth on Schedule 3.1(j), no event, liability or development has occurred or exists with respect to the Company or its Subsidiaries
or their respective business, properties, operations or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.

 

(k)           Sarbanes-Oxley; Internal Accounting Controls.  The Company is in material compliance with all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the Closing Date.  The
Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms.  The Company’s certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by the Company’s most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).  The Company presented in its most recently filed periodic
report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.  Since the Evaluation Date, there have been no changes in the Company’s internal control over financial reporting (as such term is defined in the Exchange Act) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 



  



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(l)            Accountants.  The Company’s accounting firm that certified the financial statements included in the Company’s Annual Report on Form 10-K for the year ending December 31, 2008 is UHY
LLP.  To the knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.

 

(m)           No Disagreements with Accountants and Lawyers.  There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the independent
auditing firms and outside counsel formerly or presently employed by the Company which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents, and the Company is current with respect to any fees owed to its independent auditing firm and outside counsel.

 

(n)           Off Balance Sheet Arrangements.  There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other off balance sheet entity that is required to be
disclosed by the Company in its Exchange Act filings and is not so disclosed or that otherwise would be reasonably likely to have a Material Adverse Effect.

 

(o)           Listing and Maintenance Requirements.  The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.  The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Ordinary Shares are or have been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.

 



  



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(p)           Litigation.  There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary
or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) not already disclosed in the SEC Reports which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Shares or (ii) could, if there were an unfavorable decision, have
or reasonably be expected to result in a Material Adverse Effect.  Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty.  Except as disclosed in the SEC Reports, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the
Company or any current or former director or officer of the Company.  The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.

 

(q)           Labor Relations.  No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company which could reasonably be expected to result
in a Material Adverse Effect.  No executive officer, to the knowledge of the Company, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect
to any of the foregoing matters.  The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(r)            Compliance.  Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body, or (iii) is or has been in violation
of any statute, rule or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws applicable to its business and all such laws that affect the environment, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.

 



  



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(s)           Regulatory Permits.  The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary
to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.

 

(t)           Title to Assets.  The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned
by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for Permitted Liens.  Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.

 

(u)           Patents and Trademarks.  The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets,
inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or material for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).  Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of the Intellectual
Property Rights used by the Company or any Subsidiary violates or infringes upon the rights of any Person.  To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights.  The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(v)           Insurance.  The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the
businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage.  Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.

 

(w)           Transactions with Affiliates and Employees.  Except as set forth in the SEC Reports, none of the officers or directors of the Company and, to the knowledge of the Company, none of the employees
of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company or the issuance of Ordinary Shares under the Company’s employee stock purchase plan.

 



  



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(x)           Tax Status.  Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and each Subsidiary has filed
all necessary U.S. federal, state, local and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax deficiency which has been asserted or threatened against the Company or any Subsidiary.

 

(y)           Solvency.  Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Shares hereunder,
(i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business for at least the next 12 months, as now conducted and as proposed to be conducted, including its capital needs taking into account the particular capital requirements of
the business conducted by the Company, and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.  The Company does not intend to incur debts beyond its ability to pay such debts
as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt).  The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date.  Schedule 3.1(y) of
the Disclosure Schedules sets forth as of the date thereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.  For the purposes of this Agreement, “Indebtedness” means (a) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect
of indebtedness of others, whether or not the same are or should be reflected in the Company’s balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (c) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.  Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.

 



  



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(z)            Foreign Corrupt Practices.  Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company, has (i) directly or indirectly, used any funds
for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any
provision of the Foreign Corrupt Practices Act of 1977, as amended.

 

(aa)          Investment Company.  The Company is not, and upon consummation of the sale of the Shares will not be, an “investment company,” a company controlled by an “investment company,”
or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.  The Company shall continue to conduct its business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended.

 

(bb)         U.S. Real Property Holding Corporation.  The Company is not, nor has ever been, a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended,
and the Company shall so certify upon Purchaser's request.

 

(cc)          Application of Takeover Protections.  The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its jurisdiction of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Shares
and the Purchasers’ ownership of the Shares.

 

(dd)          Certain Fees.  Except for fees payable to the Placement Agent and the issuance of the Placement Agent Warrant, no brokerage or finder’s fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents.  The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.

 

(ee)          No General Solicitation.  Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Shares by any form of general solicitation or general advertising.  The
Company has offered the Shares for sale only to the Purchasers and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.

 



  



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(ff)           Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the offer and sale of
the Shares by the Company to the Purchasers as contemplated hereby. The issuance and sale of the Shares hereunder does not contravene the rules and regulations of the Trading Market.

 

(gg)           No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, 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 cause this offering of the Shares to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or
designated.

 

(hh)         Acknowledgment Regarding Purchasers’ Purchase of Shares.  The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect
to the Transaction Documents and the transactions contemplated thereby.  The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the
Purchasers’ purchase of the Shares.  The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.

 

(ii)           Acknowledgement Regarding Purchaser’s Trading Activity.  Anything
in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.10 hereof), it is understood and acknowledged by the Company (i)
that none of the Purchasers have been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Shares for any specified term; (ii) that past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing of
this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities; (iii) that any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the Ordinary Shares; and (iv) that each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction.  The Company further understands and acknowledges that (a) one or more Purchasers may engage in hedging activities at various times during the period that the Shares are outstanding, and (b) such hedging activities (if any) could reduce the value of the existing shareholders' equity interests in the Company at and after the time that the hedging activities are being conducted.  The Company acknowledges that such aforementioned hedging activities do not constitute a breach of
any of the Transaction Documents.

 



  



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(jj)           Regulation M Compliance.  The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement of the Shares.

 

(kk)          Disclosure.  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting
on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information.   The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company.  All disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company, its business and the transactions contemplated hereby,
including the Disclosure Schedules to this Agreement, is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.  The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.

 

3.2           Representations and Warranties of the Purchasers.  Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the
Company as follows:

 

(a)           Organization; Authority.  Such Purchaser is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, corporate or
partnership power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate or similar action on the part of such Purchaser.  Each Transaction Document to which it is a party has been
duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

 



  



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(b)           Own Account.  Such Purchaser understands that the Shares are “restricted securities” and have not been registered under the Securities Act or any applicable state securities law and
is acquiring the Shares as principal for its own account and not with a view to or for distributing or reselling such Shares or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares (this representation
and warranty not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statement or otherwise in compliance with applicable federal and state securities laws) in violation of the Securities Act or any applicable state securities law.  Such Purchaser is acquiring the Shares hereunder in the ordinary course of its business.

 

(c)           Purchaser Status.  At the time such Purchaser was offered the Shares, it was, and at the date hereof it is either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(4), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.  Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act.

 

(d)           Experience of Such Purchaser.  Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment.  Such Purchaser is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.

 

(e)           General Solicitation.  Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.

 

(f)           Short Sales and Confidentiality Prior to the Date Hereof.  Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period commencing from the time that such Purchaser was first contacted by the Company or any other Person representing the Company concerning the terms of the transactions contemplated hereunder until the date hereof (“Discussion Time”).  Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers
manage separate portions of such Purchaser's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser's assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement.  Other than to other Persons party to this Agreement, such Purchaser has maintained
the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).

 



  



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ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES

 

4.1           Transfer Restrictions.  The Shares may only be disposed of in compliance with state and federal securities laws.  In connection with any transfer of Shares other than pursuant to an effective
registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities
Act.  As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser under this Agreement and the Registration Rights Agreement.

 

(a)           The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Shares in the following form:

 

THIS SECURITY HAS NOT BEEN  REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.  THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.

 



  



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The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act
and who agrees to be bound by the provisions of this Agreement and the Registration Rights Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares to the pledgees or secured parties.  Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith.  Further, no notice shall be required of such pledge.  At
the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Shares may reasonably request in connection with a pledge or transfer of the Shares, including, if the Shares are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend
the list of Selling Shareholders thereunder.

 

(b)           Certificates evidencing the Shares shall not contain any legend (including the legend set forth in Section 4.1(a)), (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, or
(ii) following any sale of such Shares pursuant to Rule 144, or (iii) if such Shares are eligible for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission).  The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder.  The
Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.1(b), it will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Shares, issued with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing
such Shares that is free from all restrictive and other legends.  The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section.  Certificates for Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser.





(c)           In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of Shares (based on the volume weighted average price of the Common Stock on the date such
Shares are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing any Shares as required
by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

 



  



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(d)           Each Purchaser, severally and not jointly with the other Purchasers, agrees that such Purchaser will sell any Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom,
and that if Shares are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Shares as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.

 

4.2           Furnishing of Information.  Until the earliest of the time that no Purchaser owns Shares, or in the case of the Placement Agent, it no longer owns the Placement Agent Warrant or the Warrant Shares,
the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.  As long as any Purchaser owns Shares, or in the case of the Placement Agent, it owns the Placement Agent Warrant or the Warrant Shares, if the Company is not required to file reports pursuant
to the Exchange Act, it will prepare and furnish to the Purchasers and Placement Agent and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the Shares and the Placement Agent to sell the Warrant Shares under Rule 144.  The Company further covenants that it will take such further action as any holder of Shares or Warrant Shares may reasonably request, to the extent required from time to time to enable such Person to sell such securities
without registration under the Securities Act within the requirements of the exemption provided by Rule 144.

 

4.3           Integration.  The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be
integrated with the offer or sale of the Shares in a manner that would require the registration under the Securities Act of the sale of the Shares to the Purchasers or that would be integrated with the offer or sale of the Shares to the Purchasers for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

 

4.4           Securities Laws Disclosure; Publicity.  The Company shall, by 8:30 a.m. (New York City time) on the Trading Day immediately following the date hereof, issue a press release disclosing the material
terms of the transactions contemplated hereby, and by the fourth Trading Day following the date hereof, file a Current Report on Form 8-K, filing the Transaction Documents as exhibits thereto.  The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.  Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the
name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (i) as required by federal securities law in connection with (A) any registration statement contemplated by the Registration Rights Agreement and (B) the filing of final Transaction Documents (including signature pages thereto) with the Commission and (ii) to the extent such disclosure is required by law or Trading Market regulations, in which case the
Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (ii).

 



  



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4.5           Non-Public Information.  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company covenants and agrees that neither it
nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have executed a written agreement regarding the confidentiality and use of such information.  The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.

 

4.6           Use of Proceeds.  Except as set forth on Schedule 4.6 of the Disclosure
Schedules, the Company shall use the net proceeds from the sale of the Shares hereunder for working capital purposes and shall not use such proceeds for (a) the satisfaction of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) the redemption of any Ordinary Shares or Ordinary Shares Equivalents or (c) the settlement of any outstanding litigation.

 

4.7           Indemnification of Purchasers.   Subject to the provisions of this Section 4.7, the Company will indemnify and hold the Placement Agent and its directors, officers, shareholders, members,
partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of reasonable investigation that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against a Purchaser, or the Placement Agent, as applicable, in any capacity, or any of them or their respective
Affiliates, by any shareholder of the Company who is not an Affiliate of such Purchaser, or the Placement, as applicable, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of such Purchaser’s, or Placement Agent’s, as applicable, representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser, or Placement Agent, as applicable, may have with any such shareholder or
any violations by the Purchaser, or Placement Agent, as applicable, of state or federal securities laws or any conduct by such Purchaser, or Placement Agent, as applicable, which constitutes fraud, gross negligence, willful misconduct or malfeasance).  If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense
thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party.  Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and
to employ counsel, or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.  The Company will not be liable to any Purchaser Party under this Agreement (A) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (B) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents.

 



  



23







  



 

4.8           Listing of Ordinary Shares.  The Company hereby agrees to use its best efforts to maintain the listing of the Ordinary Shares on
a Trading Market, and as soon as reasonably practicable following the Closing (but not later than the earlier of the Effective Date and the first anniversary of the Closing Date) to list all of the Shares on such Trading Market. The Company further agrees, if the Company applies to have the Ordinary Shares traded on any other Trading Market, it will include in such application all of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed on such other Trading Market
as promptly as possible.  The Company will take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market.

 

4.9           Equal Treatment of Purchasers.  No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless
the same consideration is also offered to all of the parties to the Transaction Documents.  For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Shares or otherwise.

 



  



24







  



 

4.10           Short Sales and Confidentiality after the Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to
any understanding with it have executed or will execute any Short Sales during the period commencing at the Discussion Time and ending at the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.4.  Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.4, such Purchaser has maintained and
will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules.  Each Purchaser severally and not jointly with any other Purchaser, understands and acknowledges, and agrees, to act in a manner that will not violate the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.  Notwithstanding
the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.4.  Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no
direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement.

 

4.11            Delivery of Shares after Closing.  The Company shall deliver, or cause to be delivered, the respective Shares purchased by each Purchaser to such Purchaser within three (3) Trading Days of the
Closing Date.

 

4.12           Form D; Blue Sky Filings.  The Company agrees to timely file a Form D with respect to the Shares as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser.
The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Shares for, sale to the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of any Purchaser.

 

4.13           Capital Changes.  Until the one year anniversary of the Effective Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior
written consent of the Purchasers holding at least two-thirds of the Shares.

 



  



25







  



 

4.14          Participation in Future Financing.

 

(a)  From the date hereof until the date that is the six (6) month anniversary of the Effective Date, upon any issuance by the Company or any of its Subsidiaries of Ordinary Shares or Ordinary Shares Equivalents for cash consideration (a “Subsequent Financing”),
each Purchaser shall have the right to participate in such Subsequent Financing up to an amount equal to 25% of such Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in such Subsequent Financing.

 

(b)  At least 5 Trading Days prior to the closing of any such Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser
if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”).  Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later than 1 Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser.  The Subsequent Financing Notice shall describe in reasonable
detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.

 

(c)  Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m. (New York City time) on the 5th Trading Day after the Purchaser has received the Pre-Notice that the Purchaser
is willing to participate in such Subsequent Financing, the amount of the Purchaser’s participation, and that the Purchaser has such funds ready, willing, and available for investment on the terms set forth in such Subsequent Financing Notice.  If the Company receives no notice from a Purchaser as of such 5th Trading Day, such Purchaser shall be deemed to have notified the Company that it does not elect to participate.

 

(d)  If by 5:30 p.m. (New York City time) on the 5th Trading Day after all of the Purchasers have received the Pre-Notice, notifications by the Purchasers of their willingness to participate in such Subsequent Financing (or to cause their designees
to participate) is, in the aggregate, less than the Participation Maximum of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in such Subsequent Financing Notice. 

 

(e)  If by 5:30 p.m. (New York City time) on the 5th Trading Day after all of the Purchasers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate
amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum.  “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 4.14 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers
participating under this Section 4.14.

 



  



26







  



 

(f)  The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.14, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in
such Subsequent Financing Notice within 60 Trading Days after the date of such initial Subsequent Financing Notice.

 

(g)  Notwithstanding the foregoing, this Section 4.14 shall not apply in respect of (i) an Exempt Issuance or (ii) an underwritten public offering of Ordinary Shares.

 

ARTICLE V.

MISCELLANEOUS

 

5.1           Termination.  This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company
and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated within two Business Days after the date hereof; provided, however, that no such termination will affect the right of any party to sue for any breach by the other party (or parties).

 

5.2           Fees and Expenses.  Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts,
if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided that the Company shall reimburse the Placement Agent (or its designee(s)) for up to $50,000 for its reasonable legal fees and disbursements incurred in connection with the transactions contemplated by this Agreement (and the Company authorizes payment of such fees and disbursements out of
any escrow established to hold proceeds with respect to the payment by the Purchasers for the Shares).  The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the delivery of any Shares to the Purchasers.

 

5.3           Entire Agreement.  The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede
all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

 

5.4           Notices.  Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of
(a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the
2nd Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given.  The address for such notices and communications to the Company and the Purchasers shall be as set forth on the signature pages attached hereto.  Copies (which shall not constitute notice) of all such notices shall be
provided to the Placement Agent and AK as follows:

 



  



27







  



 

If to the Placement Agent:





Westlake Securities

2700 Via Fortuna, Suite 250

Austin, TX 78746

Attn:  Michael McAllister, Chief Executive Officer

Email:  mike@westlakesecurities.com

Fax: (512) 306-1651





with a copy to:





Andrews Kurth LLP

111 Congress Avenue, Suite 1700

Austin, Texas 78701

Fax: (512) 320-9292

Attn: J. Matthew Lyons





5.5           Amendments; Waivers.  No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchasers of at least  two-thirds
of the Shares still held by the Purchasers or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.  No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right.

 

5.6           Headings.  The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.  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.

 

5.7           Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.  The Company may not assign this Agreement
or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger or otherwise by operation of law).  Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Shares, provided such transferee agrees in writing to be bound, with respect to the transferred Shares, by the provisions of the Transaction Documents that apply to the “Purchasers.”

 



  



28







  



 

5.8           No Third-Party Beneficiaries.  This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.7.

 

5.9           Governing Law.  All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with
the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.  Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.  Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.  If either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.

 

5.10           Survival.  The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.

 

5.11           Execution.  This Agreement may be executed in two or more counterparts, all of which when taken together 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, it being understood that both parties need not sign the same counterpart.  In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” or “.tif” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” or
“.tif” signature page were an original thereof.

 

5.12           Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 



  



29







  



 

5.13         Rescission and Withdrawal Right.  Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises
a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.

 

5.14         Replacement of Shares.  If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction.  The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Shares.

 

5.15          Remedies.  In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific
performance under the Transaction Documents.  The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agrees to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.

 

5.16          Payment Set Aside.  To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.

 

5.17          Independent Nature of Purchasers’ Obligations and Rights.  The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser,
and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document.  Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect
to such obligations or the transactions contemplated by the Transaction Documents.  Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.  Each Purchaser has been represented by its own separate legal counsel in their review and
negotiation of the Transaction Documents.  For reasons of administrative convenience only, Purchasers and their respective counsel in some instances may have chosen to communicate with the Company through AK.  AK does not represent any of the Purchasers but only the Placement Agent in the transactions contemplated by this Agreement.  The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it
was required or requested to do so by the Purchasers.

 



  



30







  



 

5.18          Liquidated Damages.  The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall
not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.

 

5.19          Saturdays, Sundays, Holidays.  If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be
taken or such right may be exercised on the next succeeding Business Day.

 

5.20          Construction. The parties agree that each of them and/or their respective counsel has reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments hereto.

 

5.21          Waiver of Jury Trial.  In any action, suit or proceeding in any jurisdiction brought by any party against any other party, the parties each knowingly and intentionally, to the greatest extent permitted
by applicable law, hereby absolutely, unconditionally, irrevocably and expressly waive forever trial by jury.

 

 

(Signature Pages Follow)

 



  



31







  





IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 






	
VANTAGE DRILLING COMPANY
	
Address for Notice:

	  	  	  	  
	  	  	  	  
	  	  	  	  
	
By:
	/s/ Paul A. Bragg	  	
Vantage Drilling Company

	  	
Name: Paul A. Bragg

Title:   Chairman and CEO

 
	  	
777 Post Oak Blvd., Suite 610

Houston, Texas  77056

Fax:  (281) 404-4749

Attn:  Chief Executive Officer

	  	  	  	  
	  	  	  	
With a copy to (which shall not constitute notice):

 

Vantage Drilling Company

777 Post Oak Blvd., Suite 610

Houston, Texas  77056

Fax:  (281) 404-4749

Attn:  General Counsel












[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES FOR PURCHASERS FOLLOW]

 

 

[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



 







  




 

IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

 


	
PLACEMENT AGENT:

 

WESTLAKE SECURITIES, L.L.C.
	  	
Address for Notice:

	 	 	 
	
By:
	/s/ Michael L. McAllister	  	
2700 Via Fortuna, Suite 250

	
Name:           Michael L. McAllister

Title:             Managing Director

 
	  	
Austin, Texas 78746

Fax:  (512) 306-1651

Attn: Michael L. McAllister

	  	  	  
	
Subscription Amount:  $100

Warrant Shares:  371,429
	  	
Address for Delivery of Shares (if different): 

___________________

___________________

Fax:  _______________


Attn: ______________ 





 

 


[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  






IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.













	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	

MSD ENERGY INVESTMENTS, L.P.

	  	  	  
	  	  	  	  	  
	
By:
	
/s/ John Phelan
	  	

645  5th Ave, 21st Floor

	  
	
Name:
	
John Phelan
	  	

New York, NY 10022

	  
	
Title:
	
Managing Partner
	  	

Fax: (212) 303-1622

	  
	  	  	  	

Attn: General Counsel

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 3,199,999.60
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 2,285,714
	  	
The Goldman Sachs Group, Inc.
	  
	  	  	  	

One New York Plaza, 44th Floor

	  
	  	  	  	

New York, NY 10004

	  
	  	  	  	

Fax: (212) 256-4431

	  
	  	  	  	

Attn: Terrence Tan

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  






IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.













	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	

LIBRA OFFSHORE MASTER FUND LP 

	  	  	  
	  	  	  	c/o Libra Advisors, LLC	  
	
By:
	
/s/ Ranjan Tuador
	  	


909 Third Ave., 29th Floor


	  
	
Name:
	
Ranjan Tuador
	  	


New York, NY  10022


	  
	
Title:
	
GP
	  	

Fax: (212) 350-5125

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 479,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 342,857
	  	  	  
	  	  	  	


___________________ 



	  
	  	  	  	

___________________ 

	  
	  	  	  	

Fax:  _______________ 

	  
	  	  	  	


Attn: ______________ 


	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  






IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.













	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	


LIBRA FUND LP


	  	  	  
	  	  	  	c/o Libra Advisors, LLC	  
	
By:
	

/s/ Ranjan Tuador

	  	


909 Third Ave., 29th Floor


	  
	
Name:
	
Ranjan Tuador
	  	

New York, NY 10022

	  
	
Title:
	
GP
	  	

Fax: (212) 350-5125

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 2,719,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 1,942,857
	  	  	  
	  	  	  	



___________________



	  
	  	  	  	


___________________


	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  






IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
IROQUOIS MASTER FUND LTD.
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Joshua Silverman
	  	
641 Lexington Avenue, 26th Floor
	  
	
Name:
	
Joshua Silverman
	  	
New York, NY 10022
	  
	
Title:
	
Authorized Signatory
	  	

Fax: (212) 207-3452

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  






IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
ACCOUNT # C2287, BY ITS MANAGER
	  	  	  
	

MACKENZIE FINANCIAL CORPORATION 

	  	  	  
	  	  	  	  	  
	 	 	 	Mellon Securities Trust Co.	 
	
By: 
	/s/ Bencit Gervais	  	
One Wall Street
	  
	
Name: 
	Bencit Gervais	  	
3rd Floor- Receive Window C
	  
	
Title: 
	Vice President, Investments	  	

New York, NY 10286

	  
	  	  	  	

Account: MFYF2287002

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 2,905,499.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 2,075,357
	  	  	  















	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
ACCOUNT # C1044, BY ITS MANAGER
	  	  	  
	

MACKENZIE FINANCIAL CORPORATION 

	  	  	  
	  	  	  	  	  
	
By: 
	/s/ Bencit Gervais	  	
Mellon Securities Trust Co.
	  
	
Name: 
	Bencit Gervais	  	
One Wall Street
	  
	
Title:
	Vice President, Investments	  	

3rd Floor- Receive Window C

	  
	  	  	  	


New York, NY 10286


	  
	  	  	  	Account: MFYF1044002	  
	  	  	  	  	  
	
Subscription Amount: $ 94,500.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 67,500
	  	  	  











[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]







  



  







  







IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.











	

PURCHASER:

	  	

Address for Notice: 


	 	 	 
	

CHILTON GLOBAL NATURAL RESOURCES PARTNERS, L.P.

	  	  
	 	 	 
	

By:

	
Chilton Investment Company, LLC 
	  	

1266 East Main Street, 7th floor


	  	
its General Partner 
	  	

Stamford, CT 06902


	  	  	  	

Fax: (203) 352-4006


	
By:
	
/s/ James Steinthal
	  	

Attn: James Steinthal


	
Name:
	
James Steinthal
	  	  
	
Title:
	
Managing Director
	  	  
	  	  	  	  
	  	  	  	  
	  	  	  	  
	
Subscription Amount: $ 2,499,999.60
	  	
Address for Delivery of Shares (if different)

	
Shares: 1,785,714
	  	
 















[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  



 


IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.











	

PURCHASER:

	  	

Address for Notice: 


	 	 	 
	

IRONMAN ENERGY MASTER FUND

	  	  
	  	  	  	  
	  	  	  	  
	
By:
	
/s/ G. Bryan Dutt
	  	

2211 Norfolk, Suite 611


	
Name:
	
G. Bryan Dutt
	  	

Houston, Texas 77098


	
Title:
	
Managing Director
	  	

Fax: (713) 218-6946


	  	  	  	

Attn: James Steinthal


	  	  	  	  
	
Subscription Amount: $ 700,000
	  	
Address for Delivery of Shares (if different)

	
Shares: 500,000
	  	  
	  	  	  	
UBS Securities LLC

	  	  	  	
1285 Avenue of the Americas, 8th Floor

	  	  	  	
New York, NY 10019

	  	  	  	
Fax: (212) 821-2622

	  	  	  	
Attn: David Johnson, 212-713-9438




 

 


[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]

 



 



 







 



 

 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
LAKE UNION CAPITAL FUND, LP
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Michael Self
	  	
600 University Street, Suite 1520
	  
	
Name:
	
Michael Self
	  	
Seattle, WA 98101
	  
	
Title:
	
Managing Member & Portfolio Manager
	  	

Fax: (206) 859-5188

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 299,999,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 2,142,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
ECLETO PARTNERS, L.P.
	  	  	  
	  	  	  	
 
	  
	
By:
	
/s/ John Russell
	  	



c/o Vantage Drilling Company



	  
	
Name:
	
John Russell
	  	



777 Post Oak Boulevard, Suite 610



	  
	
Title:
	
President
	  	




Houston, TX 77056




	  
	  	  	  	




Fax: (281) 404-4749




	  
	  	  	  	Attn: General Counsel	  
	  	  	  	  	  
	 	 	 	 	 
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
PAUL A. BRAGG
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Paul A. Bragg
	  	

c/o Vantage Drilling Company

	  
	
Name:
	
Paul A. Bragg
	  	

777 Post Oak Boulevard, Suite 610

	  
	
 
	
 
	  	


Houston, TX 77056


	  
	 	  	  	


Fax: (281) 404-4749


	  
	  	  	  	Attn: General Counsel	  
	 	 	 	 	 
	  	  	  	  	  
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
CHRISTOPHER G. DECLAIRE
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Christopher G. DeClaire
	  	

c/o Vantage Drilling Company

	  
	
Name:
	
Christopher G. DeClaire
	  	

777 Post Oak Boulevard, Suite 610

	  
	
 
	
 
	  	


Houston, TX 77056


	  
	  	  	  	


Fax: (281) 404-4749


	  
	  	  	  	Attn: General Counsel	  
	  	  	  	  	  
	 	 	 	 	 
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
JORGE ESTRADA
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Jorge Estrada
	  	

c/o Vantage Drilling Company

	  
	
Name:
	

Jorge Estrada

	  	

777 Post Oak Boulevard, Suite 610

	  
	
 
	
 
	  	


Houston, TX 77056


	  
	  	  	  	


Fax: (281) 404-4749


	  
	  	  	  	Attn: General Counsel	  
	  	  	  	  	  
	 	 	 	 	 
	
Subscription Amount: $ 500,000.20
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 357,143
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
MARCELO GUISCARDO
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Marcelo Guiscardo
	  	

c/o Vantage Drilling Company

	  
	
Name:
	
Marcelo Guiscardo
	  	

777 Post Oak Boulevard, Suite 610

	  
	
 
	
 
	  	


Houston, TX 77056


	  
	  	  	  	


Fax: (281) 404-4749


	  
	  	  	  	Attn: General Counsel	  
	  	  	  	  	  
	 	 	 	 	 
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
JOHN O'LEARY
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ John O'Leary
	  	

c/o Vantage Drilling Company

	  
	
Name:
	
John O'Leary
	  	

777 Post Oak Boulevard, Suite 610

	  
	
 
	
 
	  	


Houston, TX 77056


	  
	  	  	  	


Fax: (281) 404-4749


	  
	  	  	  	Attn: General Counsel	  
	  	  	  	  	  
	 	 	 	 	 
	
Subscription Amount: $ 899,999.80
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 642,857
	  	  	  
	  	  	  	
___________________
	  
	  	  	  	
___________________
	  
	  	  	  	

Fax: _______________ 

	  
	  	  	  	

Attn: ______________ 

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 



IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
HELEN R. ESPOSITO
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Helen R. Esposito
	  	
4 Leewood Circle
	  
	
Name:
	
Helen R. Esposito
	  	
Eastchester, NY 10709
	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 42,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 30,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  




 








IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
PHYLIS M. ESPOSITO
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Phylis M. Esposito
	  	
434 E. 52nd Street, PH E
	  
	
Name:
	
Phylis M. Esposito
	  	
New York, NY 10022
	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 91,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 65,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  















 

IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
MECHELE PLOTKIN FLAUM
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Mechele Plotkim Flaum
	  	

630 Park Avenue

	  
	
Name:
	

Mechele Plotkim Flaum

	  	

New York, NY 10065

	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 21,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 15,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  















 

IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
SANDER A. FLAUM
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Sander A. Flaum
	  	

630 Park Avenue

	  
	
Name:
	
Sander A. Flaum
	  	

New York, NY 10065

	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 42,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 30,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]






  



  







  
















IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
CYNTHIA A. KOHN
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Cynthia A. Kohn
	  	
985 Brannen Road
	  
	
Name:
	
Cynthia A. Kohn
	  	
Statesboro, GA 30461
	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 42,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 30,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]











  



  







  









 





IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
JOHN F. KOHN
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ John F. Kohn
	  	

985 Brannen Road

	  
	
Name:
	
John F. Kohn
	  	

Statesboro, GA 30461

	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 21,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 15,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]









  



  







  









 





IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
THUNEN FAMILY TRUST
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ Garret G. Thunen & Carol Thunen
	  	
30 Brookside Avenue
	  
	
Name:
	
Garret G. Thunen & Carol Thunen
	  	
Berkeley, CA 94705
	  
	
Title:
	
Trustees
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 49,000.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 35,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]









  



  







  









 





IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.












 


	

PURCHASER:

	  	

Address for Notice: 

	  
	 	 	 	 
	
GEORGE & DAPHNE HATSOPULOS
	  	  	  
	  	  	  	  	  
	
By:
	
/s/ George & Daphne Hatsopulos
	  	
233 Tower Road
	  
	
Name:
	

George & Daphne Hatsopulos

	  	
Lincoln, MA 01773
	  
	
 
	
 
	  	

 

	  
	  	  	  	

 

	  
	  	  	  	  	  
	  	  	  	  	  
	
Subscription Amount: $ 30,800.00
	  	
Address for Delivery of Shares (if different)
	  
	
Shares: 22,000
	  	  	  
	  	  	  	
Scarsdale Equities
	  
	  	  	  	
30 Rockefeller Plaza, Suite 4250
	  
	 	 	 	New York, NY 10112	 
	  	  	  	

Fax: (212) 969-9015

	  
	  	  	  	

Attn: Heather Fitzgerald

	  














[Signature Page to Vantage Drilling Company 2009 Securities Purchase Agreement]