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Exhibit 4.33
AGREEMENT AND PLAN OF EXCHANGE
This AGREEMENT AND PLAN OF EXCHANGE, dated as of October 21, 1996 (the
"Plan"), by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), Newsun Limited, a corporation
organized under the laws of the British Virgin Islands ("Newsun"), Kempton
Investments Ltd., a corporation organized under the laws of Ireland ("Kempton"),
and Southbrook International Investments Limited, a corporation organized under
the laws of the British Virgin Islands (individually, "Southbrook" and together
with Newsun and Kempton, the "Holders");
W I T N E S S E T H:
THAT WHEREAS, the Company and Newsun are parties to a Regulation D
Securities Subscription Agreement, entered into as of May 8, 1996 (the "May
Agreement"), pursuant to which Newsun purchased an aggregate principal amount of
$5,000,000 of the 5% Convertible Debentures Due May 1, 1998 (the "May
Debentures") of the Company for an aggregate purchase price of $5,000,000;
WHEREAS, the Company and each of Kempton and Newsun are parties to
Regulation D Securities Subscription Agreements, entered into as of July 2, 1996
(the "July Agreements"), pursuant to which each of Kempton and Newsun purchased
an aggregate principal amount of $5,000,000 of the 5% Convertible Debentures Due
June 1, 1997 (the "July Debentures") of the Company for an aggregate purchase
price of $5,000,000;
WHEREAS, Newsun assigned all of its right, title and interest in and under
the July Agreement and the July Debentures to Southbrook pursuant to the terms
of an Assignment, dated as of August 30, 1996; and
WHEREAS, all of the parties hereto desire to enter into this Plan pursuant
to which (i) Newsun will exchange the aggregate of $1,731,676 principal amount
of May Debentures currently held by it for an aggregate of $2,076,642.70
principal amount of new 10% Bonds Due December 31, 1996 (the "Bonds") issued in
the name of Newsun, (ii) Kempton will exchange the aggregate of $2,000,000
principal amount of the July Debentures currently held by it for (a) an
aggregate of $1,180,560 principal amount of new 5% Convertible Debentures Due
June 1, 1997 (the "New Debentures") issued in the name of Kempton and (b) an
aggregate of $983,247.60 principal amount of the Bonds issued in the name of
Kempton and (iii) Southbrook will exchange the aggregate of $768,324 principal
amount of the July Debentures currently held by it for an aggregate of
$905,082.20 principal amount of the Bonds issued in the name of Southbrook;
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby mutually acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEBENTURE EXCHANGE
Section I.1 Debenture Exchange. On the date hereof, the following events
(collectively, the "Exchange") shall take place: (i) Newsun will exchange the
aggregate of $1,731,676 principal amount of the May Debentures currently held by
it for an aggregate of $2,076,642.70 principal amount of the Bonds issued in the
name of Newsun, (ii) Kempton will exchange the aggregate of $2,000,000 principal
amount of the July Debentures currently held by it for (a) an aggregate of
$1,180,560 principal amount of the New Debentures issued in the name of Kempton
and (b) an aggregate of $983,247.60 principal amount of the Bonds issued in the
name of Kempton and (iii) Southbrook will exchange the aggregate of $768,324
principal amount of the July Debentures currently held by it for an aggregate of
$905,082.20 principal amount of the Bonds issued in the name of Southbrook. The
terms and provisions of the New Debentures and the Bonds are set forth in the
form of Debenture certificate and Bond attached hereto as Exhibits A and B,
respectively. After the date hereof, the Debentures will no longer be of any
force and effect and the rights of each of the Holders will be with respect only
to the New Debentures and the Bonds, as the case may be, issued to such Holder
in accordance with the Exchange.
Section I.2 Mechanics of Exchange of Debentures. On the date hereof, each
of Newsun, Kempton and Southbrook shall surrender to the Company all of the
certificate(s) representing the May Debentures and July Debentures owned by such
Holder. Simultaneously with such delivery, the May Debentures and July
Debentures, respectively, owned by each of Newsun, Kempton and Southbrook
immediately prior to the date hereof shall be canceled and (a) the Bonds to be
issued to Newsun as set forth in Section 1.1(i) above shall be issued to Newsun,
(b) the New Debentures and Bonds to be issued to Kempton as set forth in Section
1.1(ii) above shall be issued to Kempton and (c) the Bonds to be issued to
Southbrook as set forth in Section 1.1(iii) above shall be issued to Southbrook.
ARTICLE II
HOLDER REPRESENTATIONS AND WARRANTIES
Section II.1 Representations and Warranties. As a material inducement
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to the Company to issue and deliver the New Debentures and the Bonds to each of
Newsun, Kempton and Southbrook as set forth above, each Holder individually
represents and warrants to the Company as follows:
(i) The Holder is an "Accredited Investor" as that term is defined in
Rule 501(a) of Regulation D and, as of the date hereof, the Holder is not
an affiliate of the Company.
(ii) the Holder is acquiring the securities referred to in Section
1.1 above for its own account solely for investment and not with a view to
the distribution or sale thereof in violation of any federal or state
securities laws;
(iii) the Holder has had access to any and all information that such
Holder has requested from the Company concerning the Company and has had
the opportunity to ask questions of and receive answers from the Company
regarding the Company's business and financial affairs;
(iv) the Holder has not relied upon any representation or warranty
by the Company that is not expressly set forth in this Agreement;
(v) the Holder has such knowledge and experience in financial and
business matters as to be fully capable of evaluating the merits and risks
of ownership of the New Debentures and the Bonds, as the case may be;
(vi) the Holder understands that no federal or state agency has
passed upon the New Debentures or Bonds, as the case may be;
(vii) as of the date hereof, neither the Holder nor any of its
affiliates or agents have directly or indirectly maintained any short
position in any securities of the Company; and
(viii) this Plan has been duly authorized, validly executed and
delivered on behalf of each of the Holders and is a valid and binding
agreement enforceable against each of the Holders in accordance with its
terms, subject to general principles of equity and to bankruptcy or other
laws affecting the enforcement of creditors' rights generally.
Section II.2 Survival and Indemnification. The foregoing representations
and warranties shall survive the issuance and delivery of the New Debentures and
Bonds, as the case may be, as set forth herein. Each Holder shall indemnify and
hold the Company harmless from and against all damages, losses and expenses
(including, without limitation, reasonable attorneys' fees, court costs and
disbursements) suffered
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or paid, directly or indirectly, by the Company arising out of the failure of
any of the foregoing representations and warranties made by such Holder to be
true and correct in all material respects on and as of the date hereof.
ARTICLE III
COMPANY REPRESENTATIONS AND WARRANTIES
Section III.1 Representations and Warranties. As a material inducement to
the each of the Holders to accept the New Debentures and the Bonds from the
Company as set forth above, the Company represents and warrants as follows:
(i) the issuance, sale and delivery of the New Debentures and the
Bonds are within the Company's corporate powers and have been duly
authorized by all required corporate action on the part of the Company and
its stockholders and when such securities are issued and delivered in
accordance with the terms hereof and of the New Debentures and the Bonds
for the consideration expressed herein and in the New Debentures and the
Bonds, such securities will be duly and validly issued, fully paid and
nonassessable;
(ii) the issuance, sale and delivery of the shares of Common Stock
issuable upon conversion of the New Debentures, and if necessary upon the
conversion of the Default Debentures (as such term is defined in the
Bonds), is within the Company's corporate powers and has been duly
authorized by all required corporate action on the part of the Company and
its stockholders and when such securities are issued, sold and delivered
in accordance with the terms hereof and of the New Debentures and the
Default Debentures for the consideration expressed herein and in the New
Debentures and the Default Debentures, such securities will be duly and
validly issued, fully paid and nonassessable;
(iii) there are no preemptive rights of any shareholders of the
Company; and
(iv) this Plan has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement
enforceable against the Company in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally.
Section III.2 Survival and Indemnification. The foregoing representations
and warranties shall survive the issuance and delivery of the New Debentures and
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Bonds, as the case may be, as set forth herein. The Company shall indemnify and
hold each of the Holders harmless from and against all damages, losses and
expenses (including, without limitation, reasonable attorneys' fees, court costs
and disbursements) suffered or paid, directly or indirectly, by each Holder
arising out of the failure of any of the foregoing representations and
warranties made by the Company to be true and correct in all material respects
on and as of the date hereof.
ARTICLE IV
COVENANTS
Section IV.1 No Additional Shares. For so long as any New Debentures, Bonds
or Default Debentures held by either Holder remain outstanding, the Company
covenants and agrees with the Holders that:
(a) It will maintain the listing of its Common Stock on the NASDAQ
National Market;
(b) Subsequent to the filing of the Amendments (as hereinafter
defined), it will not issue stop transfer instructions to its transfer
agent with respect to and will not place a restrictive legend on the
shares of Common Stock issuable upon the conversion of the New Debentures
or the Default Debentures, as the case may be;
(c) it will permit the Holders to exercise their respective rights to
convert the New Debentures or the Default Debentures, if necessary, by
telecopying an executed and completed Notice of Conversion to the Company
and delivering the original Notice of Conversion and the certificate
representing the New Debentures or the Default Debentures, as the case may
be, to the Company by express courier. Each date on which a Notice of
Conversion is telecopied to and received by the Company in accordance with
the provisions hereof shall be deemed a conversion date. The Company will
transmit the certificates representing shares of Common Stock issuable
upon conversion of any New Debentures or Default Debentures (together with
the certificates representing the New Debentures or Default Debentures, as
the case may be, not so converted) to the respective Holder via express
courier, by electronic transfer or otherwise, within three business days
after the date the Company has received the original Notice of Conversion
and certificate representing the New Debentures or Default Debentures
being so converted. In addition to any other remedies which may be
available to the Holders, in the event that the Company fails for any
reason to effect delivery of such shares of Common Stock within such
three-business day period, the respective Holder, prior to receiving such
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shares of Common Stock, will be entitled to revoke the relevant Notice of
Conversion by delivering a notice to such effect to the Company whereupon
the Company and the Holder shall each be restored to their respective
positions immediately prior to delivery of such Notice of Conversion; and
(d) it will prepare and file with the Securities and Exchange
Commission (the "Commission") not later than twenty days from the date
hereof, post-effective amendments (the "Amendments") to each of (i)
registration statement, Registration No. 333-8395 (the "August
Registration Statement") and (ii) registration statement, Registration No.
333-11953 (individually, the "October Registration Statement," and
together with the August Registration Statement, the "Registration
Statements"), which were declared effective by the Commission on August
12, 1996 and October 2, 1996, respectively, increasing the number of
shares of Common Stock covered by the Registration Statement to Two
Hundred percent (200%) of the number of shares of Common Stock issuable
upon the conversion of both the New Debentures and the Default Debentures
(the "Registration Shares") as would be issuable on the date of filing of
the Amendments if all of the New Debentures and Default Debentures were
converted on that date, pursuant to the rules and regulations of the
Commission;
(i) prepare and file with the Commission such additional
amendments and supplements to the Registration Statements and the
prospectus used in connection therewith as may be necessary to keep the
Registration Statements effective for a period of not less than nine
months and comply with the applicable provisions of the rules and
regulations of the Commission;
(ii) furnish to the Holders such number of copies of each
prospectus included in the Registration Statements for the Registration
Shares, including each preliminary prospectus, as each such Holder shall
reasonably request each of which shall be in conformity with the
requirements of the rules and regulations of the Commission;
(iii) notify the Holders at any time, but in any event no
later than five days following the happening thereof, when a prospectus
relating to such Registration Shares is required to be delivered under
rules and regulations of the Commission, of the happening of any event as
a result of which the prospectus included in the Registration Statements,
as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of
circumstances then existing, and at any such Holder's request, prepare
and furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so
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that, as thereafter delivered to the purchasers of such Registration
Shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(iv) cause all of the Registration Shares to be listed on the
NASDAQ National Market; and
(v) in instances where an exemption from such qualification is
not available, use its best efforts to register or qualify the
Registration Shares under the securities or Blue Sky laws of such
jurisdictions as any such Holder shall reasonably request; provided, that
the Company shall not be required to register or qualify under the Blue
Sky laws in states where the Company is already registered or qualified.
Section IV.2 Restrictive Legends. Subsequent to the filing of the
Amendments, all shares of Common Stock issuable upon conversion of the New
Debentures or Default Debentures, if necessary, will be issued without
restrictive legend, in the name of the respective Holder on the date of the
Notice of Conversion. The Company warrants that no stop transfer instructions
have been given or will be given and that the New Debentures, the Bonds, the
Default Debentures, if necessary, and the shares of Common Stock issuable upon
the conversion of the New Debentures and the Default Debentures shall be freely
transferable on the books and records of the Company.
Section IV.3 Restriction of Conversion of Securities. Each of the Holders
or any subsequent holder of the New Debentures, Bonds or Default Debentures (the
"Subsequent Holder") shall be prohibited from converting any portion of the New
Debentures, Bonds or Default Debentures which would result in such Holder or
Subsequent Holder being deemed the beneficial owner, in accordance with the
provisions of Rule 13d-3 of the Securities Exchange Act of 1934, as amended, of
five percent (5%) or more then the issued and outstanding Common Stock of the
Company.
ARTICLE V
MISCELLANEOUS
Section V.1 Fees and Expenses. All costs and expenses incurred in
connection with this Plan and the consummation of the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses, except that
the Company hereby agrees to pay all fees of Patterson, Belknap, ▇▇▇▇ & ▇▇▇▇▇
LLP, counsel to each of the Holders, incurred in connection herewith.
Section V.2 Amendment and Waiver. This Plan may be amended by the
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parties hereto only by an instrument in writing signed by all of the parties
hereto. The failure of any party to insist in any one or more cases upon the
strict performance of any of the terms and provisions of this Plan, or to
exercise any right herein contained, shall not be construed as a waiver by such
party of such terms and provisions or rights. No party shall be deemed to have
waived any provision of this Plan unless such waiver shall be in writing and
executed by such party.
Section V.3 Entire Agreement. This Plan and the Exhibits hereto constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior or contemporaneous agreements and understandings,
both written and oral, by and among the parties, or any of them, with respect to
the subject matter hereof.
Section V.4 Assignment. No party shall be entitled to assign its rights
hereunder to any other person without the prior written consent of the other
parties hereto, which consent shall not unreasonably be withheld.
Section V.5 Governing Law. This Plan and the rights of the parties
hereunder shall be governed by the laws of the State of New York without regard
to the choice of law provisions thereof.
Section V.6 Further Assurances. Each of the parties hereto shall do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further instruments, acts, deeds and assurances as may be
reasonably required for the purpose of carrying out the provisions and intent of
this Plan and the Exhibits annexed hereto.
Section V.7 Counterparts. This Plan may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Plan to be executed as of
the date first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice-President/C.F.O.
NEWSUN LIMITED
By: /s/ Raz ▇▇▇▇▇▇▇▇▇
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Name: Raz ▇▇▇▇▇▇▇▇▇
Title: Proxy
KEMPTON INVESTMENTS LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
SOUTHBROOK INTERNATIONAL INVESTMENTS LIMITED
By: /s/ Raz ▇▇▇▇▇▇▇▇▇
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Name: Raz ▇▇▇▇▇▇▇▇▇
Title: Proxy