ADDITIONAL MODIFICATION AGREEMENT
Exhibit 10.4
ADDITIONAL MODIFICATION AGREEMENT
THIS ADDITIONAL MODIFICATION AGREEMENT (this “Agreement”) is dated as of February 6, 2009, by and between ELANDIA INTERNATIONAL INC., a Delaware corporation (the “Company”) and STANFORD INTERNATIONAL BANK LTD., an Antiguan banking corporation (“Stanford”).
RECITALS
WHEREAS, the Company and Stanford entered into that certain Modification Agreement as of the date hereof (the “Modification Agreement”); and
WHEREAS, in partial consideration of the Company agreeing to the amendment of the Credit Agreement described in the Modification Agreement, Stanford has also agreed to (i) transfer and exchange $2,325,000 in indebtedness due from Desca Holding LLC originally to Stanford Bank (Panama), S.A. under the Contrato de Limea de Adelantos dated April 16, 2008 and related documentation (the “Transferred Debt”) into 344,444 shares of Series B Convertible Preferred Stock of the Company (the “Additional Series B Preferred Stock”) in accordance with the terms and conditions set forth herein, and (ii) cancel any accrued and unpaid interest outstanding on such principal amount.
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 parties agree as follows:
AGREEMENT
1. Transfer and Exchange. Stanford hereby agrees, subject to the issuance of the Additional Series B Preferred Stock as provided in Section 2 below and the transfer in due form by Stanford of the promissory note(s) evidencing the Transferred Debt, to transfer the Transferred Debt, free and clear of any liens, claims or encumbrances, to the Company at any time on or before February 28, 2009 (the “Outside Transfer Date”). Following such transfer, the Transferred Debt shall remain the lawful indebtedness of the Maker to the Company.
2. Issuance of Additional Series B Preferred Stock. At the time of transfer, the Company shall, and hereby agrees to issue one or more stock certificates evidencing the Additional Series B Preferred Stock which stock shall initially be registered in the name of Stanford and, subject to the effectiveness of such agreement at the time of transfer of the Transferred Debt, transferred to the trustee on the date of issuance pursuant to the Voting Trust Agreement among Stanford, the Company and ▇▇▇▇ ▇▇▇▇▇▇▇ (the “Voting Trust Agreement”). The Additional Series B Preferred Stock shall have the terms set forth in the Amended and Restated Certificate of Designations, Rights and Preferences of the Additional Series B Preferred Stock in the form attached as Exhibit “C” to the Modification Agreement (the “Amended and Restated Certificate of Designation”). Simultaneously with the execution hereof, the Board of Directors of the Company shall cause the Company’s certificate of incorporation to be amended to incorporate the terms and provisions of the Amended and Restated Certificate of Designation.
3. Failure to Accomplish Transfer. In the event Stanford does not transfer the Transferred Debt by the Outside Transfer Date, the parties hereby agree that the Transferred Debt shall not be transferred, and in lieu of such transfer, Stanford, or the trustee under the Voting Trust Agreement if then effective, shall surrender and deliver to the Company for cancellation 1,801,740 shares of Common Stock on March 1, 2009.
4. Representations and Warranties of the Company. The Company represents and warrants to Stanford as follows:
a. Corporate Existence and Power. The Company is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified or licensed to transact business in all places where such qualification or license is necessary. The Company has the power to enter into and perform this Agreement and the other documents contemplated hereby, and such documents when duly executed and delivered for value will, constitute the legal, valid and binding obligations of the Company enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
b. Authority. The making and performance by the Company and the additional documents pursuant hereto, has been duly authorized by all necessary legal action of the Company, and does not and will not violate any provision of law or regulation, or any writ, order or decree of any court, governmental, regulatory authority or agency, and does not and will not, with the passage of time or the giving of notice, result in a breach of, or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon any property or assets of the Company, pursuant to any instrument or agreement to which the Company is a party or by which the Company or its properties may be bound or affected.
c. Concerning the Common Stock and the Preferred Stock. The Additional Series B Preferred Stock, the Option and the Common Stock issuable upon conversion of the Additional Series B Preferred Stock when issued and delivered and paid for in compliance with the provisions of this Agreement, are and shall be duly and validly issued, fully paid and non-assessable and will not subject the holder thereof to personal liability by reason of being such a holder.
5. Representations and Warranties of Stanford. Stanford represents and warrants to the Company as follows:
a. Corporate Existence and Power. Stanford is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified or licensed to transact business in all places where such qualification or license is necessary. Stanford has the power to enter into and perform this Agreement and the other documents contemplated hereby, and such documents when duly executed and delivered for value will, constitute the legal, valid and binding obligations of Stanford
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enforceable in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.
b. Authority. The making and performance by Stanford and the additional documents pursuant hereto, has been duly authorized by all necessary legal action of Stanford, and does not and will not violate any provision of law or regulation, or any writ, order or decree of any court, governmental, regulatory authority or agency, and does not and will not, with the passage of time or the giving of notice, result in a breach of, or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon any property or assets of Stanford, pursuant to any instrument or agreement to which Stanford is a party or by which Stanford or its properties may be bound or affected.
c. Investment Purpose. Stanford is acquiring the Additional Series B Preferred Stock and the shares of Common Stock of the Company issuable upon the conversion of any Additional Series B Preferred Stock (collectively, the “Securities”), for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act of 1933, as amended (the “Securities Act”).
d. Accredited Investor Status. Stanford is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act. Stanford has not been formed solely for the purpose of acquiring the Additional Series B Preferred Stock or other Securities.
e. Reliance on Exemptions. Stanford understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of the Securities Act and state securities laws and that the Company is relying in part upon the truth and accuracy of, and Stanford’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Stanford set forth herein in order to determine the availability of such exemptions and the eligibility of Stanford to acquire such Securities.
f. Transfer or Resale. Stanford understands that the Securities have not been registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned, pledged, hypothecated or transferred unless (A) subsequently registered thereunder, (B) Stanford shall have delivered to the Company an opinion of counsel, in a form reasonably satisfactory to the Company, to the effect that such Securities may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) Stanford provides the Company with such documents and certificates as the Company may reasonably request to demonstrate to its satisfaction that such Securities can be sold, assigned or transferred pursuant to Rule 144 promulgated under the Securities Act (or a successor rule thereto).
g. No General Solicitation. Stanford is not acquiring the Securities as a result of any advertisement, article, notice or other communication regarding any Securities 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.
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h. Adequate Information. Stanford is aware of the Company’s business affairs and financial condition, and has acquired information about the Company sufficient to reach an informed and knowledgeable decision to acquire the Securities.
i. Sophistication and Experience. Stanford, 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 Securities and has so evaluated the merits and risks of such investment.
j. Ability to Bear Risk. Stanford is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
k. Legend. Stanford understands that the stock certificates representing the Securities shall bear a restrictive legend in substantially the following form (or another legend substantially in such form as the transfer agent for the Company may from time to time use generally on certificates evidencing restricted securities of the Company):
“The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”), or applicable state securities laws. Such securities have been acquired for investment and may not be offered for sale, sold, transferred or assigned in the absence of an effective registration statement or an opinion of counsel, in a form reasonably satisfactory to the issuer, that registration is not required under said Act or applicable state securities laws.”
l. Transferred Debt. The Transferred Debt represents the total obligations of Desca Holding LLC issued and outstanding to Stanford Bank (Panama) ▇.▇. ▇▇▇▇▇▇▇▇ owns title to the Transferred Debt free and clear of any liens, claims or encumbrances.
6. Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be effective upon personal delivery, via facsimile (upon receipt of confirmation of error-free transmission and mailing a copy of such confirmation, postage prepaid by certified mail, return receipt requested) or two business days following deposit of such notice with an internationally recognized courier service, with postage prepaid and addressed to each of the other parties thereunto entitled at the following addresses, or at such other addresses as a party may designate by five days advance written notice to each of the other parties hereto.
| If to the Company: | eLandia International Inc. | |
| ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ | ||
| Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
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| With a copy to: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ P.A. | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| If to Stanford: | Stanford International Bank Ltd. | |
| ▇▇. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇. ▇▇▇▇’s, Antigua | ||
| West Indies | ||
| Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer | ||
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| With a copy to: | Akerman Senterfitt | |
| ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: ▇▇▇▇ ▇▇▇▇▇▇ | ||
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | ||
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | ||
7. Governing Law; Jurisdiction. This Agreement shall be governed in all respects by the laws of the State of Florida. All suits, actions or proceedings arising out of, or in connection with, this Agreement or the transactions contemplated by this Agreement shall be brought in any federal or state court of competent subject matter jurisdiction sitting in Miami-Dade County, Florida.
8. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. This Agreement may be delivered by facsimile, and facsimile signatures shall be treated as original signatures for all applicable purposes.
9. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof.
10. Amendment; Waiver. This Agreement and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. This Agreement may be amended only by a writing executed by all parties hereto.
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11. Further Assurances. At any time, and from time to time, after the effective date, each party will execute such additional instruments and take such action as may be reasonably requested by the other party to confirm or perfect title to any property interests transferred hereunder or otherwise to carry out the intent and purposes of this Agreement.
[Signatures Begin on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Chief Executive Officer | ||
| STANFORD INTERNATIONAL BANK LTD. | ||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Chief Financial Officer | ||