0000922423-11-000225.txt : 20110520 0000922423-11-000225.hdr.sgml : 20110520 20110520091844 ACCESSION NUMBER: 0000922423-11-000225 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20110520 DATE AS OF CHANGE: 20110520 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CLINTON GROUP INC CENTRAL INDEX KEY: 0001134119 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 32 OLD SLIP 5TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10005 BUSINESS PHONE: 2128250400 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VIKING SYSTEMS INC CENTRAL INDEX KEY: 0001065754 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 860913802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79397 FILM NUMBER: 11859868 BUSINESS ADDRESS: STREET 1: 134 FLANDERS ROAD CITY: WESTBOROUGH STATE: MA ZIP: 01581 BUSINESS PHONE: 508-366-3668 MAIL ADDRESS: STREET 1: 134 FLANDERS ROAD CITY: WESTBOROUGH STATE: MA ZIP: 01581 SC 13D 1 kl05047.htm SCHEDULE 13D kl05047.htm

 

SECURITIES AND EXCHANGE COMMISSION
 
Washington, D.C. 20549
_______________
 
SCHEDULE 13D
(Rule 13d-101)
 
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
 
Under the Securities Exchange Act of 1934
 
Viking Systems, Inc.
(Name of Issuer)
 
Common Stock, $0.001 par value per share
(Title of Class of Securities)
 
92685Q 20 0
(CUSIP Number)
 
Thomas D. Balliett
Marissa Leung
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100
 
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
May 11, 2011
(Date of Event which Requires
Filing of this Schedule)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. [ ]
 
NOTE:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
 
(Continued on following pages)
 

 
 

 

CUSIP No 92685Q 20 0
SCHEDULE 13D
 

 

1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
CLINTON GROUP, INC.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)   x
(b)   r
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
  r
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
24,674,492*
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
24,674,492*
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
 
24,674,492*
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   r
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5)
 
30.3%**
14
TYPE OF REPORTING PERSON
 
IA; CO
*Includes 10,651,035 shares which are issuable upon exercise of the May 11, 2011 Warrants and the Midsummer Warrants.
**Percentages are based on 81,457,469 shares of Common Stock outstanding (58,806,434 shares of Common Stock as set forth in the Issuer’s 10-K filed on February 24, 2011 and as adjusted to take account for shares and warrants issued in the May 11, 2011 Transaction and the Midsummer Warrants – as defined below).
 
 
 
 
 

 

 

1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
CLINTON MAGNOLIA MASTER FUND, LTD.
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)   x
(b)   r
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
  r
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Cayman Islands
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
24,674,492*
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
24,674,492*
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
 
24,674,492*
 
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   r
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5)
 
30.3%**
 
14
TYPE OF REPORTING PERSON
 
CO
* Includes 10,651,035 shares which are issuable upon exercise of the May 11, 2011 Warrants and the Midsummer Warrants.
** Percentages are based on 81,457,469 shares of Common Stock outstanding (58,806,434 shares of Common Stock as set forth in the Issuer’s 10-K filed on February 24, 2011 and as adjusted to take account for shares and warrants issued in the May 11, 2011 Transaction and the Midsummer Warrants – as defined below).
 
 
 
 
 

 
 
 
 
1
NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
 
GEORGE HALL
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)   x
(b)   r
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
  r
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
UNITED STATES
 
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
7
SOLE VOTING POWER
 
0
8
SHARED VOTING POWER
 
24,674,492*
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
24,674,492*
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
 
24,674,492*
 
12
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   r
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) (see Item 5)
 
30.3%**
 
14
TYPE OF REPORTING PERSON
 
IN
* Includes 10,651,035 shares which are issuable upon exercise of the May 11, 2011 Warrants and the Midsummer Warrants.
** Percentages are based on 81,457,469 shares of Common Stock outstanding (58,806,434 shares of Common Stock as set forth in the Issuer’s 10-K filed on February 24, 2011 and as adjusted to take account for shares and warrants issued in the May 11, 2011 Transaction and the Midsummer Warrants – as defined below).

 
 

 

Item 1.  
SECURITY AND ISSUER
 
This statement relates to the shares of Common Stock, $0.001 par value per share (the "Shares"), of Viking Systems, Inc., a Delaware corporation (the "Issuer"). The principal executive office of the Issuer is located at 134 Flanders Road, Westborough, MA 01581.
 
Item 2.  
IDENTITY AND BACKGROUND.
 
(a)    This statement is filed by Clinton Group, Inc., a Delaware corporation ("CGI"), Clinton Magnolia Master Fund, Ltd., a Cayman Islands exempted company ("CMAG") and George Hall (“Mr. Hall” and collectively with CGI and CMAG, the “Reporting Persons”).
 
(b)    The principal business address of CGI and Mr. Hall is 9 West 57th Street, 26th Floor, New York, New York 10019.  The principal business address of CMAG is c/o Fortis Fund Services (Cayman) Limited, P.O. Box 2003 GT, Grand Pavilion Commercial Centre, 802 West Bay Road, Grand Cayman, Cayman Islands.
 
(c)    The principal business of CGI is investing for funds and accounts under its management.  Mr. Hall is the Chief Investment Officer and President of CGI.  The principal business of CMAG is to invest in securities.
 
(d)    None of the Reporting Persons nor any of the individuals set forth in Schedule A attached hereto has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
(e)    None of the Reporting Persons nor any of the individuals set forth in Schedule A attached hereto has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
(f)    Mr. Hall is a citizen of the United States of America.
 
Item 3.  
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
 
Funds for the purchase of the Shares in the May 11, 2011 Transaction (as defined below) reported herein were derived from available capital of CMAG.  A total of approximately $1.7 million was paid to acquire such Shares.
 
Funds for the purchase of the Shares from Midsummer Investment Ltd. (“Midsummer”) reported herein were derived from available capital of CMAG.  A total of approximately $2.1 million was paid to acquire such Shares.
 
Item 4.  
PURPOSE OF TRANSACTION.
 
The Shares were purchased in two transactions by the Reporting Persons.  The Shares purchased in the May 11, 2011 Transaction (as defined below) were from the Issuer and the Shares purchased in the Midsummer Transaction (as defined below) were from Midsummer.  The transactions are described below:

1.           On May 11, 2011, CMAG purchased 6,800,000 Shares and warrants to purchase an additional 5,100,000 Shares exercisable at a price of $0.25 per warrant (the “May 11, 2016 Warrants”).
 
The Shares were acquired pursuant to a Purchase Agreement, dated as of May 5, 2011, among the Issuer, CMAG and certain other investors (the “May 11, 2011 Transaction”).  Pursuant to a Registration Rights Agreement, dated as of May 5, 2011, among the same parties, the Issuer is obligated to register for resale by CMAG and certain other investors, all Shares and all shares issuable upon the exercise of the May 11, 2016 Warrants.
 
 
 
 

 
 
 
The May 11, 2016 Warrants expire on May 11, 2016 and are initially exercisable at an exercise price of $0.25/Warrant.  The exercise price of the May 11, 2016 Warrants is subject to adjustment upon the occurrence of certain events, including, without limitation, adjustments upon stock splits and combinations, stock dividends, distributions, mergers, consolidations and reorganizations.
 
Pursuant to the Purchase Agreement, Joseph De Perio, a representative of the Reporting Persons, was appointed to serve as a member of the Issuer's Board of Directors.
 
2.           In connection with the May 11, 2011 Transaction, CMAG has entered into a Stock Purchase Agreement, dated as of May 4, 2011, between CMAG and Midsummer to purchase all of Midsummer’s holdings of the Issuer’s common stock and warrants (the “Midsummer Transaction”). At the time of the Midsummer Transaction, Midsummer owned 7,223,457 Shares, and warrants to acquire an additional 5,551,035 Shares of the Issuer with an exercise price of $0.18 per Share (the “Midsummer Warrants”).
 
Except as set forth herein, the Reporting Persons have no present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D.  The Reporting Persons intend to review their investment in the Issuer on a continuing basis and may engage in discussions with management, the board of directors, other shareholders of the Issuer and other relevant parties concerning the business, operations, management, board composition, strategy and future plans of the Issuer.  Depending on various factors including, without limitation, the Issuer’s financial position and strategic direction, the outcome of the discussions and actions referenced above, actions taken by the board of directors, price levels of the Shares, other investment opportunities available to the Reporting Persons, conditions in the securities market and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation, purchasing additional Shares or selling some or all of their Shares, engaging in short selling of or any hedging or similar transactions with respect to the Shares and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of this Schedule 13D.
 
Item 5.  
INTEREST IN SECURITIES OF THE COMPANY.
 
(a)    The aggregate percentage of Shares beneficially owned by the Reporting Persons is based upon 81,457,469 Shares outstanding, which includes 58,806,434 Shares outstanding as of January 31, 2011 as reported in the Issuer’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 24, 2011 for the period ended December 31, 2010, and as adjusted to take account for the Shares and warrants issued in the May 11, 2011 Transaction and the Midsummer Warrants.
 
As of the close of business on May 18, 2011, the Reporting Persons may be deemed the beneficial owners of an aggregate of 24,674,492 Shares, including 5,100,000 shares issuable upon exercise of the May 11, 2016 Warrants and 5,551,035 shares issuable upon exercise of the Midsummer Warrants, constituting approximately 30.3% of the Shares outstanding.
 
(b)    By virtue of investment management agreements with CMAG, CGI has the power to vote or direct the voting, and to dispose or direct the disposition, of all of the 24,674,492 Shares beneficially owned by CMAG. By virtue of his direct and indirect control of CGI and CMAG, George Hall is deemed to have shared voting power and shared dispositive power with respect to all Shares as to which CGI and CMAG has voting power or dispositive power.
 
(c)    Except as set forth in Items 3 and 4 of this Schedule 13D, both of which are hereby incorporated by reference into this Item 5(c) in their entirety, none of the Reporting Persons nor, to the knowledge of the Reporting Persons, any of the individuals named in Schedule A has engaged in any transaction during the past 60 days in any of the Shares.

(d)    No person (other than the Reporting Persons) is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares.
 
 
 
 
 

 
 
 
(e)    Not applicable.
 
Item 6.  
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
 
The Reporting Persons are parties to an agreement with respect to the joint filing of this Statement and any amendments thereto. A copy of such agreement is attached hereto as Exhibit 1 and is incorporated by reference herein.

Item 7.  
MATERIAL TO BE FILED AS EXHIBITS.
 
Exhibit 1 Purchase Agreement, dated as of May 5, 2011, by and among the Issuer, CGI and certain other investors (the “Purchase Agreement”) (incorporated by reference to Exhibit 10.1 to the Issuer's Current Report on Form 8-K, as filed with the SEC on May 11, 2011).
   
Exhibit 2 Registration Rights Agreement, dated as of May 5, 2011, by and among the Issuer, CGI and certain other investors (incorporated by reference to Exhibit 10.2 to the Issuer's Current Report on Form 8-K, as filed with the SEC on May 11, 2011).
   
Exhibit 3 Form of Common Stock Purchase Warrant, issued by the Issuer to each purchaser party to the Purchase Agreement (incorporated by reference to Exhibit 10.3 to the Issuer's Current Report on Form 8-K, as filed with the SEC on May 11, 2011).
   
Exhibit 4 Purchase Agreement, dated as of May 4, 2011, by and between CMAG and Midsummer.
   
Exhibit 5 Joint Filing Agreement, dated May 20, 2011.
                

                      
 
 

 

SIGNATURES
 
After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
 
Dated:  May 20, 2011
 
 
CLINTON GROUP, INC.
     
 
By:
/s/ Francis Ruchalski                                 
   
Name:  Francis Ruchalski
   
Title:  Chief Financial Officer
   
 
CLINTON MAGNOLIA MASTER FUND, LTD.
 
By: Clinton Group, Inc. its investment Manager
     
 
By:
/s/ Francis Ruchalski                                 
   
Name:  Francis Ruchalski
   
Title:  Chief Financial Officer
   
   
George Hall
   
/s/ George Hall
     
     
     
 
 

 
 
 

 

SCHEDULE A
 
DIRECTORS AND EXECUTIVE OFFICERS OF CERTAIN REPORTING PERSONS
 
The following sets forth the name, position and principal occupation of each director and executive officer of CGI. Each such person is a citizen of the United States of America. The business address of each director and executive officer is 9 West 57th Street, 26th Floor, New York, New York 10019.
 
CLINTON GROUP, INC.

Name
Position
George Hall
Director and President
Francis A. Ruchalski
Director and Chief Financial Officer
John L. Hall
Director

The following sets forth the name, citizenship, principal occupation and business address of each director of CMAG. There are no executive officers of CMAG.

CLINTON MAGNOLIA MASTER FUND, LTD.

Jane Fleming is a citizen of the United Kingdom. Her principal occupation is Client Accountant of Queensgate Bank & Trust Company Ltd. Her business address is Queensgate Bank & Trust Company Ltd., Harbour Place, 5th Floor, 103 South Church Street, P.O. Box 30464 SMB, Grand Cayman, Cayman Islands.

Dennis Hunter is a citizen of the United Kingdom. His principal occupation is Director of Queensgate Bank & Trust Company Ltd. His business address is Queensgate Bank & Trust Company Ltd., Harbour Place, 5th Floor, 103 South Church  Street, P.O. Box 30464 SMB, Grand Cayman, Cayman Islands.

Roger Hanson is a citizen of the United Kingdom. His principal occupation is director of dms Management Ltd. His business address is dms Management Ltd., P.O. Box 31910 SMB, Ansbacher House, 20 Genesis Close, Grand Cayman, Cayman Islands.

 
 
 
 
 
EX-4 2 kl05047_ex4.htm STOCK PURCHASE AGREEMENT kl05047_ex4.htm

 
Exhibit 4
 

 
STOCK PURCHASE AGREEMENT
 
STOCK PURCHASE AGREEMENT, dated as of May 4, 2011, by and among Midsummer Small Cap Master, Ltd. (collectively, the “Sellers”) and Clinton Magnolia Master Fund Ltd. (the “Purchaser”).
 
W I T N E S S E T H:
 
WHEREAS, the Purchaser desire to purchase from the Seller and the Seller desires to sell to the Purchaser three (3) warrant series (the “Warrants”) exercisable for an aggregate of 5,551,034 shares (the “Shares”) of the Common Stock, par value $0.01 per share (the “Common Stock”), with an exercise price of $0.18 and a term of exercise as follows:
 
2,800,007 shares
---
Expiring January 5, 2013
644,848 shares
---
Expiring May 19, 2013
2,106,179 shares
---
Expiring February 22, 2014
     
of Viking Systems, Inc. (the “Company”);
 
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the parties hereto agree as follows:
 
ARTICLE I
 
Purchase and Sale of Warrants
 
Section 1.1.   Purchase and Sale of Warrants.  Upon the terms and subject to the conditions of this Agreement and on the basis of the representations, warranties and agreements contained herein, the Seller hereby sells, assigns, transfers and conveys to the Purchaser the Warrants and the Purchaser hereby purchases the Warrants from the Seller for a per share cash purchase price of $0.06 (an aggregate cash purchase price of $333,062.04 (the “Purchase Price”)).  Upon receipt of an original warrant certificate in the name of such Purchaser, evidencing the Warrant, the Purchaser shall pay the Purchase Price by one or more wire transfers of immediately available funds to the Seller pursuant to the wire transfer instructions set forth on Schedule A attached hereto.
 
ARTICLE II
 
Representations and Warranties Regarding the Seller
 
The Seller hereby represents and warrants to the Purchaser as follows:
 
Section 2.1.   Authorization.  It has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, all of which have been duly authorized by all requisite action.  This Agreement has been duly authorized, executed and delivered by it and
 
 
 
 

 
 
 
constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
 
Section 2.2.   No Consents.  No notice to, filing with, or authorization, registration, consent or approval of any governmental authority or other individual, partnership, corporation, joint stock company, unincorporated organization or association, trust or joint venture, or a governmental agency or political subdivision thereof (each, a “Person”) is necessary for the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby by it.
 
Section 2.3.   Ownership of the Warrants.  It owns the Warrants beneficially and of record, free and clear of any liens, claims or encumbrances (collectively, “Encumbrances”).  It has not entered into any agreement, arrangement or other understanding (i) granting any option, warrant or right of first refusal with respect to the Warrants to any Person, (ii) restricting its right to sell the Warrants to the Purchaser, or (iii) restricting any other of its rights with respect to the Warrants.  It has the absolute and unrestricted right, power and capacity to sell, assign and transfer the Warrants to the Purchaser free and clear of any Encumbrances.  Upon payment in full of the Purchase Price, the Purchaser will acquire good, valid and marketable title to the Warrants, free and clear of any Encumbrances created by the Seller.
 
Section 2.4.   Affiliate Status.  It is not an “affiliate” of the Company as that term is defined in Rule 144 promulgated under the Securities Act of 1933, as amended, and has not been an affiliate of the Company during the 90 day period ending on the date hereof.
 
Section 2.5.   Brokers.  No Person is or will be entitled to a broker’s, finder’s, investment banker’s, financial adviser’s or similar fee from it in connection with this Agreement or any of the transactions contemplated hereby.
 
ARTICLE III
 
Representations and Warranties Regarding the Purchaser
 
The Purchaser hereby represents and warrants to the Seller as follows:
 
Section 3.1.   Authorization.  It has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, all of which have been duly authorized by all requisite action.  This Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding agreement, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
 
Section 3.2.   Access to Information.  It has received all information regarding the Company that it deems necessary or advisable to evaluate the risks and merits of an investment
 
 
 
 

 
 
 
in the Warrants.  It acknowledges that neither the Seller nor any of its authorized representatives have made any representation or warranty regarding the Company or an investment in the Warrants, other than as contained herein.
 
Section 3.3.   Brokers. No person is or will be entitled to a broker’s, finder’s, investment banker’s, financial adviser’s or similar fee from it in connection with this Agreement or any of the transactions contemplated hereby.
 
Section 3.5.   Financial Resources.  It has presently available to it sufficient cash resources to enable it to pay Purchase Price.
 
ARTICLE IV
 
Survival, Amendment and Waiver
 
Section 4.1.   Survival.  The representations and warranties contained in this Agreement or any certificate delivered in connection herewith shall survive the sale of the Warrants as contemplated hereby.
 
Section 4.2.   Amendments.  This Agreement (including the provisions of this Section 4.2) may not be amended or modified except by an instrument in writing signed on behalf of all of the parties affected by such amendment or modification.
 
Section 4.3.   Extension; Waiver.  The parties hereto may (i) extend the time for performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties of the other parties hereto contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the agreements of the other parties hereto or satisfaction of any of the conditions to such party’s obligations contained herein.  Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of a party hereto to assert any of its rights hereunder shall not constitute a waiver of such rights.
 
ARTICLE V
 
Miscellaneous
 
Section 5.1. Notices.  All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, when delivered by courier, three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested), or when received by facsimile transmission upon receipt of a confirmed transmission report, as follows:
 
If to the Seller:
Midsummer Investment Ltd.
295 Madison Ave, 38th fl
New York, New York 10017
 
Tel:               212.624.5030
Fax:               212.624.5040
Attention:    Michel Amsalem
 
 
 
 
 
 

 
 
 
If to the Purchaser:
Clinton Magnolia Master Fund Ltd.
Care of: Clinton Group Inc.
9 West 57th Street, 26th Floor
New York, NY 10019
 
Tel: 212-829-2879
Fax: 212-825-0084
Attention: Peter Rawlins
   
Any party hereto, by notice given to the other parties hereto in accordance with this Section 5.1 may change the address or facsimile transmission number to which such notice or other communications are to be sent to such party.
 
Section 5.2.   Expenses.  Each of the parties hereto shall pay its own expenses incident to this Agreement and the transactions contemplated herein.
 
Section 5.3.   Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.  This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without reference to the choice of law principles thereof.  Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby.  Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement.  Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court.  Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
 
Section 5.4.   Assignment; Successors and Assigns; No Third Party Rights.  This Agreement may not be assigned by operation of law or otherwise, and any attempted assignment shall be null and void.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, permitted assigns and legal representatives.  This Agreement shall be for the sole benefit of the parties to this Agreement and their respective heirs, successors, permitted assigns and legal representatives and is not intended, nor shall be construed, to give any Person, other than the parties hereto and their respective heirs, successors, assigns and legal representatives, any legal or equitable right, remedy or claim hereunder.
 
Section 5.5.   Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original agreement, but all of which together shall constitute one and the same instrument.
 
Section 5.6.   Titles and Headings.  The titles and headings in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.
 
Section 5.7.   Entire Agreement.  This Agreement constitute the entire agreement among the parties with respect to the matters covered hereby and thereby and supersede all previous written, oral or implied understandings among them with respect to such matters.
 
Section 5.8.   Severability.  The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof.  If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, such restriction shall be enforced to the maximum extent permitted by law.
 
Section 5.9.   Interpretation.  Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph hereof; (ii) words importing the masculine gender shall also include the feminine and neutral genders, and vice versa; and (iii) words importing the singular shall also include the plural, and vice versa.
 
Section 5.10.   No Strict Construction.  Each of the parties hereto acknowledge that this Agreement has been prepared jointly by the parties hereto, and shall not be strictly construed against either party.
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
 
Purchaser
 
 
By: /s/ Francis Ruchalski                          
 
Name: Francis Ruchalski
Title: CFO, Clinton Group Inc. as investment manager
 
 
Seller
 
Midsummer Investment Ltd.
 
By: /s/ Michel Amsalem                            
Name: Michel Amsalem
Title: Authorized Signatory
 
 
 
 
 
EX-5 3 kl05047_ex5.htm AGREEMENT OF JOINT FILING kl05047_ex5.htm


Exhibit 5
 
AGREEMENT OF JOINT FILING

The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D may be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows that such information is inaccurate.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of May 20, 2011.
 
 
 
CLINTON GROUP, INC.
     
 
By:
/s/ Francis Ruchalski                                 
   
Name:  Francis Ruchalski
   
Title:  Chief Financial Officer
   
 
CLINTON MAGNOLIA MASTER FUND, LTD.
 
 
   
By: Clinton Group, Inc.
its investment Manager
     
 
By:
/s/ Francis Ruchalski                                 
   
Name:  Francis Ruchalski
   
Title:  Chief Financial Officer
   
 
CLINTON MAGNOLIA MASTER FUND, LTD.
     
  By: /s/ Francis Ruchalski                                 
   
Name:  Francis Ruchalski
   
Title:  Comptroller
     
 
George Hall
 
/s/ George Hall