Securities Purchase Agreement between Marco Hi-Tec JV, Ltd. and Investors (January 5, 2006)

 Exibit 10.5 SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (this "AGREEMENT") is made as of this 5th day of January, 2006, by and among Marco Hi-Tec JV, Ltd., a New York corporation (the "COMPANY"), and the investors set forth on SCHEDULE A attached hereto (each an "INVESTOR" and, collectively, the "INVESTORS"). WHEREAS, the Company desires to issue and sell, and the Investors desire to purchase shares of the Company's common stock, $0.01 par value per share (the "COMMON STOCK). NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements herein contained, the parties hereto intending to be legally bound, hereby agree as follows: 1. PURCHASE AND SALE OF SECURITIES. 1.1 SALE AND ISSUANCE OF SECURITIES. (a) Subject to the terms and conditions of this Agreement, each Investor severally agrees to purchase, and the Company agrees to sell to each Investor shares of Company Common Stock as follows, such number of shares of Common Stock that upon any future mergers or reorganizations the purchase price shall not exceed $1.50 per share. 1.2 CLOSING. The purchase and sale of shares of Common Stock (the "SECURITIES") shall take place at such time and at such place as the Investors and the Company mutually agree (the "CLOSING"). At the Closing, (a) the Company shall deliver to each of the Investors a certificate representing the number of shares of Common Stock such Investor is purchasing against (b) receipt of (i) a check subject to collection or a wire transfer of the purchase price to an account designated by the Company. 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants, as of the date hereof to the Investors that, except where indicated on the Schedule of Exceptions attached hereto as SCHEDULE B and furnished to the Investors, which Schedule of Exceptions shall be deemed to be representations and warranties as if made hereunder: 2.1 ORGANIZATION, GOOD STANDING, QUALIFICATION AND CORPORATE POWER. (a) The Company and its subsidiaries are either (i) limited liability companies or corporations duly organized and validly existing under the laws of their respective jurisdictions of formation, and that each has the requisite power and authority to carry on its business as now conducted and as proposed to be conducted. The Company and its subsidiaries are qualified to transact business and are in good standing as foreign corporations in each jurisdiction where they are required to so qualify, except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect (as hereinafter defined). True and accurate copies of the Company's and its subsidiaries' certificate of incorporation, bylaws, articles of organization, operating agreement, or such other constitutive documents, as the case may be, each as amended and in effect on and as of the Closing (the "ORGANIZATIONAL DOCUMENTS"), were delivered to the Investors.  (b) The Company has all requisite legal and corporate power to execute and deliver this Agreement and each of the other Basic Documents (as hereinafter defined), and to issue and sell the Securities hereunder, and to carry out and perform its obligations under the terms of this Agreement and the other Basic Documents. 2.2 SUBSIDIARIES. Except as set forth on SCHEDULE B, the Company does not presently own or control, directly or indirectly, any equity interest in any other corporation, partnership, limited liability company, association or other business entity. 2.3 AUTHORIZATION. The Basic Documents have been duly authorized, executed and delivered by the Company and constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, subject to (a) applicable bankruptcy, insolvency, reorganization and moratorium laws, (b) other laws of general application affecting the enforcement of creditors' rights generally and general principles of equity, (c) the discretion of the court before which any proceeding therefor may be brought, and (d) as rights to indemnity may be limited by federal or state securities laws or by public policy. 2.4 VALID ISSUANCE OF COMMON STOCK. (a) The issuance, sale and delivery of the Securities hereunder have been duly authorized by all required corporate action on the part of the Company, and when issued, sold, and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and non-assessable. The Securities issued hereunder will be free and clear from any liens or encumbrances other than those created by, or imposed upon, the holders thereof through no action of the Company, other than restrictions on transfer under state and/or federal securities laws and restrictions set forth in the Basic Documents. Issuance of the Securities will be free of statutory preemptive rights. 2.5 GOVERNMENTAL CONSENTS. Except for the filing of any notice subsequent to the Closing that may be required under applicable federal and/or state securities laws (which, if required, shall be filed on a timely basis as may be so required), no consent, approval or authorization of, or declaration to, or filing with, any Person (as hereinafter defined) (governmental or private) is required for the valid authorization, execution, delivery and performance by the Company of the Basic Documents or for the valid authorization, designation, issuance, sale and delivery of the Securities. 2.6 LITIGATION. (a) There is no action, suit, proceeding, or investigation pending or to the Company's knowledge currently threatened against the Company or any subsidiary (nor, to the Company's knowledge, is there any reasonable basis therefor) which questions the validity or enforceability of the Basic Documents or the right of the Company to enter into such agreements, or to consummate the transactions contemplated thereby, or which might result, either individually or in the aggregate, in a Material Adverse Effect. (b) The Company is not a party or subject to the provisions of any order, writ, injunction, judgment, or decree of any court or government agency or instrumentality. 2  (c) There is no action, suit, proceeding or investigation by the Company currently pending or which the Company intends to initiate. 2.7 PATENTS AND TRADEMARKS. The Company and its subsidiaries have sufficient title and ownership of all patents, trademarks, service marks, trade names, copyrights, trade secrets, information, proprietary rights, and processes necessary, or applicable, for their business as now conducted (collectively, "INTELLECTUAL PROPERTY RIGHTS") without any conflict with or infringement of the rights of others. There are no outstanding options, licenses, or agreements of any kind relating to the Company's or its subsidiaries' Intellectual Property Rights, nor is the Company or any subsidiary bound by or a party to any options, licenses, or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights, and processes of any other Person, except the so-called "execute by opening" software license agreements. Neither the Company nor its subsidiaries have received any communications or claims alleging, nor does the Company have reason to believe that the Company or ant of its subsidiaries violated or, by conducting its business as proposed, would violate, any of the patents, trademarks, service marks, trade names, copyrights, or trade secrets or other proprietary rights or processes of any other person or entity. The Company is not aware of any violations or infringement by a third party of any of the Company's or its subsidiaries' Intellectual Property Rights. 2.8 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation or default of any provisions of its Organizational Documents or of any instrument, judgment, order, writ, decree, or contract to which it is a party or by which it or any of its assets may be bound or, to its knowledge, of any provision of federal or state statute, rule or regulation, license, or permit applicable to the Company. The execution, delivery, and performance of the Basic Documents and the consummation of the transactions contemplated thereby will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, order, writ, decree, or contract or an event which results in the creation of any lien, charge, or encumbrance upon any assets of the Company or trigger any anti-dilution provisions, provisions for the right to purchase stock, or preemptive rights in any agreements to which the Company is a party. The Company does not have any knowledge of any termination or material breach or anticipated termination or material breach by the other parties to any material contract or commitment to which it is a party or to which any of its assets is subject. 2.9 TITLE TO PROPERTY AND ASSETS. The Company and its subsidiaries have good and marketable title to their property and assets free and clear of all mortgages, liens, loans, and encumbrances, except such encumbrances and liens which arise in the ordinary course of business and do not materially impair the Company's or its subsidiaries' ownership or use of such property or assets. With respect to the property and assets they lease, the Company and its subsidiaries are in compliance in all material respects with such leases and, to the Company's knowledge, hold valid leasehold interests free of any liens, claims, or encumbrances. All of the Company's and its subsidiaries' property and assets are, in all material respects, in good operating and usable condition, subject to normal wear and tear. 2.10 LABOR AGREEMENTS AND ACTIONS; EMPLOYEE BENEFITS; ERISA. 3  (a) Neither the Company nor its subsidiaries are bound by or subject to (and none of their assets or properties are bound by or subject to) any written or oral, express or implied, contract, commitment, or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives, or agents of the Company or its subsidiaries. There is no strike or other labor dispute involving the Company or any of its subsidiaries pending, or, to the knowledge of the Company, threatened, which could have a Material Adverse Effect, nor is the Company aware of any labor organization activity involving its or its subsidiaries' employees. To its knowledge, the Company and its subsidiaries have complied in all material respects with all applicable state and federal equal opportunity and other laws related to employment. The Company has not received written notice that any employee of the Company or any of its subsidiaries is in violation of any judgment, decree, or order, or any term of any employment contract, patent disclosure agreement, or other contract or agreement relating to the relationship of any such employee with the Company or any of its subsidiaries, or any other party because of the nature of the business conducted or presently proposed to be conducted by the Company or its subsidiaries. (b) The Company and its subsidiaries are not a party to or bound by any currently effective employment contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan, retirement agreement, or other employee compensation agreement. Neither the Company nor its subsidiaries have any Employee Benefit Plan as defined in the Employee Retirement Income Security Act of 1974, as amended. 2.11 INSURANCE. The Company and its subsidiaries have in full force and effect fire, casualty, and liability insurance policies, with extended coverage, in such amounts and with such coverage as is reasonable and prudent in view of the business and operations of the Company. 2.12 TAX MATTERS. The Company and its subsidiaries (i) have filed all tax returns that are required to have been filed by them with all appropriate governmental agencies (and all such returns are true and correct and fairly reflect their operations for tax purposes); and (ii) have paid all taxes owed or assessments by them as indicated on such tax returns (other than taxes the validity of which are being contested in good faith by appropriate proceedings). The assessment of any additional taxes for periods for which returns have been filed is not expected to exceed the recorded liability therefor and, to the Company's knowledge, there are no material unresolved questions or claims concerning the Company's or any subsidiaries' tax liability. The Company's and its subsidiaries' tax returns have not been reviewed or audited by any taxing authority. There is no pending dispute with any taxing authority relating to any of said returns which, if determined adversely to the Company or ant subsidiary, would result in the assertion by any taxing authority of any valid deficiency in a material amount for taxes. The Company and its subsidiaries have withheld or collected from each payment made to their employees the amount of all taxes, including, but not limited to, income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes required to be withheld or collected therefrom, and have paid the same to the proper tax receiving officers or authorized depositaries. 2.13 MINUTE BOOKS. The minute books of the Company contain a complete and accurate record in all material respects of all meetings of directors and stockholders since the date of incorporation of the Company and all actions by written consent. 4  2.14 REGULATIONS G, T AND X. The Company does not own or have any present intention of acquiring any "margin security" within the meaning of Regulation G (12 C.F.R. Part 207) of the Board of Governors of the Federal Reserve System (herein called "margin security"). None of the proceeds of the Securities will be used, directly or indirectly, by the Company for the purpose of purchasing or carrying, or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry, any margin security or for any purpose which might cause any Basic Document and the transactions contemplated thereby to violate Regulation G, Regulation T, Regulation X, or any other regulation of the Board of Governors of the Federal Reserve System. 2.15 GOVERNMENTAL REGULATION. The Company is not subject to regulation under the Investment Company Act of 1940, or to any United States of America, state or local statute or regulation limiting its or their ability to incur Debt (as hereinafter defined). 2.16 CUSTOMERS AND SUPPLIERS. No customer or supplier of the Company or its subsidiaries, the loss of which would have a Material Adverse Effect, has notified the Company of its intention to terminate its relationship with the Company or any subsidiary. 2.17 FINDERS' FEES. Except as disclosed in SCHEDULE B, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Company who might be entitled to any fee or commission from the Company or any of their respective affiliates upon consummation of the transactions contemplated by this Agreement. 2.18 RELATED PARTY TRANSACTIONS. No employee, officer, stockholder or director of the Company or any subsidiary or member of his or her immediate family is indebted to the Company or any subsidiary, nor is the Company or any subsidiary indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company or any of its subsidiaries, and (iii) for other standard employee benefits made generally available to all employees. To the Company's knowledge, no employee or officer of the Company or any of its subsidiaries has any direct or indirect ownership interest in any firm or corporation with which the Company or any of its subsidiaries is affiliated or with which the Company or any of its subsidiaries has a business relationship, or any firm or corporation that competes with the Company or any of its subsidiaries, except that employees, officers or directors of the Company and members of their immediate families may own stock in publicly traded companies that may compete with the Company or any of its subsidiaries. To the best of the Company's knowledge, no officer or stockholder or any member of their immediate families is, directly or indirectly, interested in any material contract with the Company or any of its subsidiaries (other than such contracts as relate to any such person's ownership of capital stock or other securities of the Company or any of its subsidiaries and other than employment agreements). 2.19 OFFERINg. Subject to the accuracy of the Investors' representations in Section 3 hereof, the offer, sale and issuance of the Securities to be issued in conformity with the terms of this Agreement constitute transactions exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended (the "SECURITIES ACT"). 5  3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. Each Investor severally and not jointly hereby represents and warrants, only as to each such Investor and not as to any other Investor, to the Company that: 3.1 ORGANIZATION AND EXISTENCE. To the extent indicated on the signature pages hereto, each Investor is either (i) a limited partnership duly organized and validly existing under the laws of its respective state of formation, (ii) a limited liability company duly organized and validly existing under the laws of its respective state of formation, (iii) a corporation duly organized and validly existing under the laws of its respective state of incorporation or (iv) an individual. Each Investor represents that it was not organized for the purpose of making an investment in the Company. 3.2 AUTHORIZATION. The execution, delivery and performance by the Investor of this Agreement, and the Basic Documents to which the Investor is a party, and the consummation by such Investor of the transactions contemplated hereby and thereby are within the powers of such Investor and have been duly authorized by all necessary individual, corporate, partnership or limited liability company action, as appropriate, on the part of such Investor. This Agreement and each of the Basic Documents to which the Investor is a party constitute, valid and binding agreements of such Investor, enforceable in accordance with their respective terms, subject to (a) applicable bankruptcy, insolvency, reorganization and moratorium laws, (b) other laws of general application affecting the enforcement of creditors' rights generally and general principles of equity, (c) the discretion of the court before which any proceeding therefor may be brought, and (d) as rights to indemnity may be limited by federal or state securities laws or by public policy. 3.3 FINDERS' FEES. Except as disclosed in SCHEDULE B, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of the Investor who might be entitled to any fee or commission from the Investors upon consummation of the transactions contemplated by this Agreement and the Basic Documents. 3.4 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Securities to be received by the Investor pursuant to the terms hereof will be acquired for investment for such Investor's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof. The Investor has no present intention of selling, granting any participation in, or otherwise distributing the Securities acquired by the Investor. The Investor has no contract, undertaking, agreement or arrangement with any Person to sell or transfer, or grant any participation to such Person or to any third Person, with respect to any Securities to be acquired by the Investor. 3.5 INVESTOR ADDRESS, ACCESS TO INFORMATION, EXPERIENCE, ETC. (a) The address set forth on the signature pages of this Agreement is such Investor's true and correct business, residence or domicile address. The Investor has received and read and is familiar with this Agreement. The Investor has had an opportunity to ask questions of and receive answers from representatives of the Company concerning the terms and conditions of this investment. The Investor has substantial experience in evaluating non-liquid investments such as the Securities and is capable of evaluating the merits and risks of an investment in the Company. The Investor is an "accredited investor" 6  as that term is defined in Rule 501(c) of Regulation D promulgated under the Securities Act. (b) The Investor has been furnished access to the business records of the Company and such additional information and documents as such Investor has requested and has been afforded an opportunity to ask questions of, and receive answers from, representatives of the Company concerning the terms and conditions of this Agreement, the purchase of the Securities, the business, operations, market potential, capitalization, financial condition and prospects of the Company, and all other matters deemed relevant to such Investor. (c) The Investor acknowledges that it has had an opportunity to evaluate all information regarding the Company as it has deemed necessary or desirable in connection with the transactions contemplated by this Agreement, has independently evaluated the transactions contemplated by this Agreement and has reached its own decision to enter into this Agreement. 3.6 RESTRICTED SECURITIES. The Investor understands that the Securities to be acquired by such Investor have not been registered under the Securities Act or the laws of any state and may not be sold or transferred, or otherwise disposed of, without registration under the Securities Act and applicable state securities laws, or pursuant to an exemption therefrom. In the absence of an effective registration statement covering the Securities to be acquired by the Investor, the Investor will sell or transfer, or otherwise dispose of, the Securities to be acquired by the Investor only in a manner consistent with its representations and agreements set forth herein, the terms and conditions set forth in the Basic Documents and any applicable federal and state securities laws. 4. CONDITIONS OF EACH INVESTOR'S OBLIGATIONS AT CLOSING. The obligations of each Investor to purchase the Securities pursuant to this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions, the waiver of which shall not be effective against any Investor unless the Investor has consented in writing thereto: 4.1 REPRESENTATIONS OF THIS AGREEMENT. The representations and warranties of the Company contained in Section 2 shall be true and correct on and as of the date of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. 4.2 PERFORMANCE. The Company shall have performed and complied with all agreements, obligations, and conditions contained in the Basic Documents that are required to be performed or complied with by it on or before the Closing. 4.3 CONSENTS AND WAIVERS. The Company shall have obtained any and all consents and waivers necessary or appropriate for consummation of the transactions contemplated by the Basic Documents. 4.4 STOCK CERTIFICATES. Each Investor shall have received a stock certificate dated the date of the Closing for the number of shares of Common Stock, respectively, set forth opposite such Investor's name on SCHEDULE A hereto. 7  4.5 INTENTIONALLY OMITTED. 4.6 INFORMATION. The Investors shall have received and reviewed to their reasonable satisfaction all information reasonably requested by the Investors relating to the business of the Company, including all operational, financial, legal, technological and other areas. 4.7 ORGANIZATIONAL DOCUMENTS. The Organizational Documents of the Company then in effect shall be reasonably satisfactory to the Investors. 4.8 ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other proceedings to be taken by the Company in connection with the transactions contemplated by the Basic Documents and all documents incident thereto shall be reasonably satisfactory in form and substance to the Investors, and the Investors and their counsel shall have received all such counterpart originals or certified or other copies of such documents as they reasonably may request. 5. DEFINITIONS. All capitalized terms used in this Agreement shall have the meanings assigned to them elsewhere in this Agreement or as specified below: "ACCOMMODATION OBLIGATION" shall mean, as applied to any Person and without duplication of amounts, any obligation of such Person guaranteeing or intended to guarantee (whether guaranteed, endorsed, co-made, discounted, or sold with recourse to such Person) any indebtedness, lease, dividend, letter of credit, or other obligations ("primary obligation") of any Person in any manner whether directly or indirectly, including any obligation of such Person or on behalf of any other person (irrespective of whether contingent), or to otherwise assure or hold harmless the owner of such primary obligation against loss in respect thereof. The amount of any Accommodation Obligation shall be deemed to be an amount equal to the maximum amount of a Person's liability with respect to the stated or determinable amount of the primary obligation for which such Accommodation Obligation is incurred. "BASIC DOCUMENT" shall mean each of this Agreement, the Organizational Documents, each as at any time amended and in effect from time to time. "CAPITALIZED LEASE" shall mean any lease of an asset by the Company or any subsidiary as lessee which would, in conformity with GAAP, be required to be accounted for as a capital lease on the balance sheet of the Company or such subsidiary. "CAPITALIZED LEASE OBLIGATIONS" shall mean the aggregate amount which in accordance with GAAP is required to be reported as a liability on the balance sheet of the Company or any subsidiary at such time in respect of its respective interest as lessee under a Capitalized Lease. "DEBT" shall mean, with respect to any Person, without duplication: (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments; (c) all obligations of such Person in respect of letters of credit, bankers acceptances, interest rate swaps or other financial products or similar instruments (including reimbursement with respect thereto), except such as have been issued to secure payment of trade payables; (d) all obligations of such Person to pay the deferred purchase price of property or services, except trade 8  payables; (e) all Capitalized Lease Obligations of such Person; (f) all obligations or liabilities of others secured by a lien on any asset owned by such Person, whether or not such obligation or liability is assumed by such Person; and (g) all Accommodation Obligations of such Person. "GAAP" shall mean generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors, (ii) applied on a basis consistent with prior periods (except for changes in the application of such principles that have been approved by the Company's Board of Directors), and (iii) such that, insofar as the use of accounting principles is pertinent, a certified public accountant could deliver an unqualified opinion with respect to financial statements in which such principles have been properly applied, subject, however, to the absence of footnotes. "MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the assets, condition (financial or otherwise), affairs, earnings, business, operations or prospects of the Company and it subsidiaries on a consolidated basis. "PERSON" shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature, including, as appropriate, the Company or any subsidiary thereof. 6. MISCELLANEOUS. 6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations, warranties and covenants of the Company and the Investors contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the Investors or the Company. 6.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties (including permitted transferees of any Securities sold hereunder). Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. The Company may not assign or transfer any of its rights under this Agreement without the prior written consent of the Investors. The Investors (or subsequent holder of any Securities) may not assign or transfer any of its rights under this Agreement without the prior written consent of the Company; PROVIDED, HOWEVER, that each such permitted transferee or assignee shall be bound by the terms and conditions of this Agreement and the other applicable Basic Documents pursuant to a written instrument signed by such permitted transferee reasonably satisfactory to the Company. 6.3 GOVERNING LAW. This Agreement and the other Basic Documents shall be governed by, construed, applied and enforced in accordance with the laws of the State of New York, including the Uniform Commercial Code, except that no 10  doctrine of choice of law shall be used to apply any law other than that of New York, and no defense, counterclaim or right of set-off given or allowed by the laws of any other state or jurisdiction, or arising out of the enactment, modification or repeal of any law, regulation, ordinance or decree of any foreign jurisdiction, shall be interposed in any action hereon. 6.4 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 6.5 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 6.6 NOTICES. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or four (4) days after deposit with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified at the address indicated for such party on the signature pages hereof, or at such other address as such party may designate by ten (10) days' advance written notice to the other parties. 6.7 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement, including the Schedules and Exhibits hereto and thereto, and the other Basic Documents constitutes the full and entire understanding and agreement between the parties with regard to the subject hereof. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the holders of two-thirds of the Securities then outstanding (on a fully diluted basis). Any amendment or waiver effected in accordance with this Section 7.7 shall be binding upon each holder of the Securities and the Company. 6.8 SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 6.9 EXPENSES. The Company and the Investors shall each bear their own expenses incurred on their behalf with respect to this Agreement and the transactions contemplated hereby. 6.10 ATTORNEYS' FEES AND COSTS. With respect to any dispute relating to this Agreement, or in the event that a suit, action, arbitration, or other proceeding of any nature whatsoever, including, without limitation, any proceeding under the U.S. Bankruptcy Code and involving issues peculiar to federal bankruptcy law, any action seeking a declaration of rights or a suit for rescission, is instituted to interpret or enforce this Agreement or any provision of this Agreement, except as otherwise provided herein, the prevailing party shall be entitled to recover from the losing party its reasonable attorneys', paralegals', accountants', and other experts' and professional fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as determined by the judge or arbitrator at trial or other proceeding, or on any appeal or review, in additional to all other amounts provided by law. 6.11 EXCHANGES; LOST, STOLEN OR MUTILATED CERTIFICATES. Upon surrender by a holder of a Security to the Company of any certificate representing a Security purchased or acquired hereunder, the Company at its expense will issue in exchange therefor, and deliver to the holder of a Security, a new certificate or certificates representing such shares, in such denominations as may be requested by the holder of a Security. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of any certificate representing any a Security purchased or acquired by a holder of a Security hereunder, and in case of any such loss, theft or destruction, upon delivery of any indemnity agreement satisfactory to the Company, or in case of any such mutilation, upon surrender and cancellation of such certificate, the Company at its expense will issue and deliver to such holder a new certificate for such Security of like tenor, in lieu of such lost, stolen or mutilated certificate. [Signatures begin on the following page.] 11  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. COMPANY: MARCO HI-TECH JV, LTD By: /s/ Reuben Seltzer ---------------------------------- Name: Reuben Seltzer Title: President  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: SHELLY KOFFLER /s/ Shelly Koffler -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: SUSAN SOLOMON AUERBACH /s/ Susan Solomon Auerbach -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: JOHN ABERNATHY /s/ John Abernathy -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: ARIE GUTMAN /s/ Arie Gutman -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: SCOTT TARIFF /s/ Scott Tariff -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: MARK AUERBACH /s/ Mark Auerbach -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: MARTIN SIMON /s/ Martin Simon -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: GRQ CONSULTANTS, INC. 401K PLAN /s/ Barry Honig -----------------------------  [COUNTERPART SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. INVESTOR: JACOB HONIG IRREVOCABLE TRUST /s/ Alan S. Honig -----------------------------