Exhibit 10.69
INVESTMENT AGREEMENT
Dated as of June 21, 2001
among
SELWAY PARTNERS, LLC,
SELWAY MANAGEMENT, INC.
and
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, corp.
THIS INVESTMENT AGREEMENT (this "Agreement"), dated as of June 21, 2001, by
and among Selway Partners, LLC, a New Jersey limited liability company (the
"INVESTOR"), Selway Management, Inc. and ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, corp. a Delaware
corporation (the "COMPANY").
RECITALS
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A. The Company, the Investor and Selway Management, Inc. are executing and
delivering this Agreement in reliance upon the exemption from securities
registration afforded by the provisions of Regulation D ("REGULATION D"), as
promulgated by the U.S. Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended;
B. The Investor wishes to purchase, and the Company wishes to sell and
issue to the Investor, upon the terms and conditions stated in this Agreement,
an aggregate of not more than $700,000 of its Convertible Debentures (the
"DEBENTURES") and Selway Management, Inc. has agreed to the issuance of certain
of the Company's Debentures to it as set forth in the Management Agreement
Amendment No. 1; and
D. Contemporaneously with the execution and delivery of this Agreement, the
parties hereto are executing and delivering a Registration Rights Agreement, in
the form attached hereto as EXHIBIT A (the "REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended and the rules and regulations
promulgated thereunder, and applicable state securities laws;
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
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Section 1.1 DEFINITIONS. In addition to those terms defined above and
elsewhere in this Agreement, for the purposes of this Agreement, the following
terms shall have the meanings hereinafter set forth:
"ADDITIONAL CLOSING" has the meaning set forth in Section 2.2
"ADDITIONAL INVESTMENT" has the meaning set forth in Article IX.
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by, or is under common control
with, such Person.
"CLOSING" and "CLOSING DATE" shall have the meanings set forth in Section
2.2.
"CERTIFICATE OF DESIGNATION" means the Certificate of Designations, in the
form attached hereto as EXHIBIT B, setting forth the rights, preferences and
privileges of the Preferred Shares.
"COMMITMENT FEE" means an amount equal to two percent (2%) of the face
amount of each Debenture issued by the Company whether pursuant to the Initial
Investment or one or more Additional Investments.
"COMMON SHARES" or "COMMON STOCK" means shares of common Stock, $.01 par
value, of the Company, that may be issued by the Company upon the conversion of
the Preferred Shares.
"CONTROL" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"DEBENTURES" means the Company's Convertible Subordinated Debentures in the
form attached as EXHIBIT C, to be issued to the Investor or Selway Management in
accordance with the terms and conditions of this Agreement, as the same may be
modified, amended supplemented from time to time.
"DEPOSIT PLEDGE AGREEMENTS" means the Deposit Pledge Agreements granted by
the Company in favor of the Investor and Selway Management, dated as of the
Initial Closing Date in the form attached hereto as EXHIBIT F-1 AS ACKNOWLEDGED
BY EACH DEPOSITORY INSTITUTION WHERE THE COMPANY HAS A DEPOSIT ACCOUNT.
"INITIAL CLOSING" has the meaning set forth in Section 2.2
"INITIAL INVESTMENT" has the meaning set forth in Section 2.1(a).
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the Intellectual Property
Security Agreement granted by the Company in favor of the Investor and Selway
Management of even date herewith.
"INVESTMENT AGREEMENTS" means this Agreement the Debentures, the
Registration Rights Agreement, the Security Agreement, the Deposit Pledge
Agreements, the Pledge Agreement, the Intellectual Property Security Agreement,
Management Agreement Amendment No. 1 and such other agreements executed and
delivered by the parties hereto pursuant to this Agreement.
"INVESTOR'S COUNSEL" means ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP
"MANAGEMENT AGREEMENT AMENDMENT NO. 1" means the Management Agreement
Amendment No. 1 between the Company and Selway Management in the form attached
hereto as EXHIBIT D.
"MARKET PRICE" means the average of the closing bid prices of the Company's
Common Stock over the five (5) trading days immediately preceding the applicable
date.
"MATERIAL ADVERSE EFFECT" means an effect which, either alone or in
conjunction with other effects, constitutes a material adverse effect on the (i)
condition (financial or otherwise), business, assets, or results of operations
of the Company and its subsidiaries, taken as a whole; (ii) ability of the
Company to perform any of its material obligations under the terms of this
Agreement; or (iii) rights and remedies of an Investor under the terms of this
Agreement.
"OPERATING BUDGET" means an Operating and Financing Budget for the Company
for the ninety (90) day period commencing on the Initial Closing Date attached
hereto as EXHIBIT E.
"PERSON" means an individual, corporation, partnership, trust, business
trust, association, joint stock company, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, governmental authority or any other
form of entity not specifically listed herein.
"PLEDGE AGREEMENT" means the Pledge Agreement granted by the Company in
favor of the Investor and Selway Management dated of even date herewith and as
agreed to by each of the Company's subsidiaries.
"PREFERRED SHARES" or "PREFERRED STOCK" means the shares of Series B
Convertible Preferred Stock, $.01 par value, of the Company, the terms of which
are set forth in the Certificate of Designations, that may be issued upon the
conversion of the Debentures.
"REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in the Recitals
hereto.
"SEC FILINGS" has the meaning set forth in Section 3.4.
"SECURITIES" means the Debentures, Preferred Shares and the Common Shares.
"SECURITY AGREEMENT" means the Security Agreement granted by the Company in
favor of the Investor and Selway Management by the Company, dated as of the
Initial Closing Date in the form attached hereto as EXHIBIT F.
"SELWAY MANAGEMENT" means Selway Management, Inc, a Delaware corporation.
"SHARES" means the Preferred Shares and the Common Shares.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
ARTICLE II. PURCHASE AND SALE OF DEBENTURES
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Section 2.1 Subject to the terms and conditions set forth herein and in
reliance on the representations, warranties and covenants set forth herein, on
each Closing Date (as defined below) the Company shall issue and sell to the
Investor or Selway Management, as is appropriate, the Debentures as follows:
(a) At the Initial Closing, the Investor shall purchase and the
Company shall issue to the Investor, a Debenture in a principal amount of
$350,000, for an aggregate purchase price of $350,000 (the "INITIAL
INVESTMENT"),
(b) At any Additional Closing, the Investor may, in its discretion
purchase and the Company shall issue to the Investor, Debentures in aggregate
principal amounts of up to $350,000, for an aggregate purchase price of not to
exceed $350,000 provided that the conditions set forth in Article IX of this
Agreement shall have been met; and
(c) At any Additional Closing, the Company shall issue Debentures to
Selway Management under such circumstances as are set forth in Management
Agreement Amendment No. 1 and shall comply with the conditions set forth in
Article IX of this Agreement.
Section 2.2 Closings.
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(a) The initial purchase and sale of the Debentures (the "INITIAL
CLOSING") will take place on or before June 21, 2001 (the "INITIAL CLOSING
DATE") at the offices of Investor's counsel or at such other location as the
Company and the Investor shall agree including via facsimile and the mails, if
the parties so agree.
(b) Any additional purchases and sales of the Debentures (each, an
"ADDITIONAL CLOSING") will take place at such times and in such amounts in
accordance with the Operating Budget and in each case at the sole discretion of
the Investor. The purchase and sale of any Debentures with respect to any
Additional Investment (an "ADDITIONAL CLOSING" and, together with the Initial
Closing, the "CLOSINGS") will take place at the offices of the Investor's
counsel or at such other location as the Company and the Investor shall agree
including via facsimile and the mails, if the parties so agree. The date of any
Additional Closing (the "ADDITIONAL CLOSING DATE" and, together with the Initial
Closing Date, the "CLOSING DATES") shall be set by the Investor on the date that
the Investor gives notice to the Company of its intent to make an Additional
Investment pursuant to Article IX or in the case of Debentures issued in favor
of Selway Management, on such date as Selway Management gives notice of its
election to receive such Debentures pursuant to the terms of the Management
Agreement Amendment No. 1.
(c) At the Initial Closing:
(i) The Investor shall deliver by wire transfer of same day
funds, to such account of the Company as the Company shall designate at least
one business day before the Initial Closing Date, $350,000;
(ii) the Company shall deliver to the Investor a Debenture in a
principal amount of $350,000; and
(iii) the Company and each Investor shall execute and deliver a
cross-receipt acknowledging such purchase and sale;
(d) At any Additional Closing:
(i) each Investor shall deliver by wire transfer of same day
funds, to such account of the Company as the Company shall designate at least
one (1) business day before such Additional Closing Date, the purchase price for
the principal amount of Debentures being acquired at such Additional Closing,
which principal amount shall be limited as set forth in Section 9.2 of this
Agreement; and
(ii) the Company shall deliver to the Investor a Debenture in
such principal amount as equals the Investor's Additional Investment; or
(iii) At such time as the Company becomes obligated to issue
Debentures to Selway Management pursuant to Management Agreement Amendment No.
1, the Company shall deliver to the Investor a Debenture in such principal
amount as shall be set forth in the Management Agreement Amendment No. 1.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to the Investor and Selway Management
as follows:
Section 3.1 Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company and each of its subsidiaries has all requisite power and
authority to own, operate and lease its properties and to conduct its business
as currently conducted. The Company and each of its subsidiaries is duly
qualified or licensed to do business and is in good standing in each
jurisdiction in which its ownership or leasing of property or the conduct of its
business requires such licensing or qualification, except to the extent that the
failure to be so qualified or licensed is not reasonably likely to have a
Material Adverse Effect.
Section 3.2 Authorization; Binding Effect. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and the
other Investment Agreements and to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the other
Investment Agreements and the performance by the Company of its obligations
hereunder and thereunder, have been duly authorized by the Company , no other
corporate proceeding therefor on the part of the Company or its stockholders is
required. This Agreement and the other Investment Agreements are the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to the enforcement of creditors' rights and remedies or by
other equitable principles of general application including on account of rights
and preferences of other parties to credit or prior investment agreements or
instruments.
Section 3.3 Capitalization.
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(a) Set forth on SCHEDULE 3.3 hereto is (a) the authorized capital
stock of the Company on the date hereof; (b) the number of shares of capital
stock issued and outstanding; (c) the number of shares of capital stock issuable
pursuant to the Company's stock plans; and (d) the number of shares of capital
stock issuable and reserved for issuance pursuant to securities (other than the
Securities) exercisable for, or convertible into or exchangeable for any shares
of capital stock. All of the issued and outstanding shares of the Company's
capital stock have been duly authorized and validly issued and are fully paid,
nonassessable and free of pre-emptive rights. Except as described in the SEC
Filings, no Person is entitled to pre-emptive or similar statutory or
contractual rights with respect to any securities of the Company. Except as set
forth on SCHEDULE 3.3, there are no outstanding warrants, options, convertible
securities or other rights, agreements or arrangements of any character under
which the Company is or may be obligated to issue any equity securities of any
kind, or to transfer any equity securities of any kind. Except as described on
SCHEDULE 3.3, the Company does not know of any voting agreements, buy-sell
agreements, option or right of first purchase agreements or other agreements of
any kind among any of the security holders of the Company relating to the
securities held by them. Except as set forth on SCHEDULE 3.3, the Company has
not granted any Person the right to require the Company to register any
securities of the Company under the 1933 Act, whether on a demand basis or in
connection with the registration of securities of the Company for its own
account or for the account of any other Person.
(b) All of the outstanding shares of capital stock of the Company are,
and as of the Closing, will be, duly authorized, validly issued, fully paid and
nonassessable and none of such securities are or were at the time of issuance
subject to any preemptive rights (statutory or otherwise), except such rights as
have lapsed or been validly waived and except that the Series B Preference
Amount (as defined in the Certificate of Designation) shall be paid on a pari
passu basis with any proceeds from a Liquidation Event (as defined in the
Certificate of Designation) that are due to the holders of the 8% Preferred
Stock and the holders of the Series A Preferred Stock (as each such term is
defined in the Certificate of Designation). The Preferred Shares issuable upon
conversion of the Debentures have been duly authorized and reserved for issuance
and, when issued upon conversion of the Debentures, will be validly issued,
fully paid and nonassessable, and will not be subject to any preemptive rights
(statutory or otherwise), except such rights that have lapsed or been validly
waived. The Common Shares issuable upon conversion of the Preferred Shares have
been duly authorized and reserved for issuance or to the extent that there is an
insufficient number of shares of Common Stock to effect such conversion, the
Company shall promptly take any and all steps as are necessary to amend its
Certificate of Incorporation to increase the number of authorized shares of
Common Stock to such amount as shall be sufficient to convert all of the
Preferred Stock and, when issued upon conversion of the Preferred Shares, such
Common Stock will be validly issued, fully paid and nonassessable, and will not
be subject to any preemptive rights (statutory or otherwise), except such rights
that have lapsed or been validly waived.
Section 3.4 Delivery of SEC Filings; Business. The Company has provided the
Investor with copies of the Company's most recent Annual Report on Form 10-KSB
for the fiscal year ended March 31, 2000, and all other reports filed by the
Company pursuant to the 1934 Act since the filing of the Annual Report on Form
10-KSB including without limitation the Form 10QSB for the quarter ended
December 31, 2000 (collectively, the "SEC FILINGS") and the Press Releases
listed on Schedule 3.4 hereto. The Company and its subsidiaries are engaged only
in the business described in the SEC Filings and the SEC Filings contain a
complete and accurate description of the business of the Company and its
subsidiaries as presently conducted.
Section 3.5 Use of Proceeds. The proceeds of the sale of the Securities
hereunder shall be used by the Company for working capital and general corporate
purposes in generally in accordance with the Operating Budget and to pay any and
all Investor Expenses and in accordance with Section 6.1 of this Agreement.
Section 3.6 No Material Adverse Change. Since the filing of the Company's
most recent Quarterly Report on Form 10-QSB or as otherwise identified and
described in subsequent reports filed by the Company pursuant to the 1934 Act
and except as set forth in Schedule 4.3 hereto and on the balance sheet attached
hereto as SCHEDULE 3.6 hereto, there has not been:
(i) any declaration or payment of any dividend, or any
authorization or payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the Company except
quarterly dividends paid on preferred stock of the Company as described
generally in the Company's Form 10-KSB;
(ii) any material damage, destruction or loss, whether or not
covered by insurance to any assets or properties of the Company or any of its
subsidiaries;
(iii) any waiver by the Company or any of its subsidiaries of a
valuable right or of a material debt owed to it;
(iv) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or any of its
subsidiaries, except in the ordinary course of business and which is not
material to the assets, properties, financial condition, operating results or
business of the Company and its subsidiaries taken as a whole (as such business
is presently conducted and as it is proposed to be conducted);
(v) except for the execution and delivery of an Agreement with
Tailwind dated as of March 29, 2001 any material change or amendment to a
material contract or arrangement by which the Company or any of their
subsidiaries or any of its assets or properties is bound or subject;
(vi) any labor difficulties or labor union organizing activities
with respect to employees of the Company or any of its subsidiaries;
(vii) any transaction entered into by the Company or any of its
subsidiaries other than in the ordinary course of business; or
(viii) any event or condition that could result in a Material
Adverse Effect, which for purposes of this Section 3.6 (viii) only, shall be
deemed to be an amount equal to or greater than $100,000 and shall not include
litigation disclosed on SCHEDULE 3.13 of this Agreement.
Section 3.7 SEC Filings; Material Contracts.
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(a) As of its filing date, each report filed by the Company with the
SEC pursuant to the 1934 Act, complied as to form in all material respects with
the requirements of the 1934 Act and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading.
(b) Each registration statement and any amendment thereto filed by the
Company pursuant to the 1933 Act, as of the date such statement or amendment
became effective except the registration statement attached hereto as Exhibit G,
complied as to form in all material respects with the 1933 Act and did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; and each prospectus filed pursuant to Rule 424(b) under the 1933
Act, as of its issue date and as of the closing of any sale of securities
pursuant thereto did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading.
(c) Except as described in SCHEDULE 3.3, there are no agreements or
instruments currently in force and effect that constitute a warrant, option,
convertible security or other right, agreement or arrangement of any character
under which the Company is or may be obligated to issue any material amounts of
any equity security of any kind, or to transfer any material amounts of any
equity security of any kind.
Section 3.8 Form S-3 Eligibility. The Company is currently eligible to
register the resale of its Common Stock on a registration statement on Form S-3
under the 1933 Act.
Section 3.9 No Violation; Conflicting Agreements. Except as disclosed on
SCHEDULE 3.9, the execution and delivery of this Agreement by the Company or the
other Investment Agreements nor the performance by the Company of its
obligations hereunder or thereunder will (a) conflict with or result in any
breach of any provision of the Company's Certificate of Incorporation or Bylaws;
(b) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default or give rise to any lien or
encumbrance on the Company's properties or assets or any right of termination,
cancellation or acceleration under any of the terms or conditions of any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which the Company is a party or by which its properties or assets may be
bound, or (c) violate any statute, law, rule, regulation, writ, injunction,
judgment, order or decree of any court, administrative agency or governmental
authority binding on the Company or any of its properties or assets.
Section 3.10 Compliance with Applicable Law. The Company is currently in
compliance with all applicable laws (whether statutory or otherwise), rules,
regulations, orders, ordinances, judgments, decrees, writs, requirements and
injunctions of all governmental authorities, except for such noncompliance that,
individually and in the aggregate, is not reasonably likely to have a Material
Adverse Effect.
Section 3.11 Licenses and Permits. The Company possesses all franchises,
certificates, licenses, permits and other authorizations from governmental
political subdivisions or regulatory authorities, and all patents, trademarks,
service marks, trade names, copyrights, licenses and other rights free from
material restrictions, that are necessary for the ownership, maintenance and
operation of their respective properties and assets, and neither is in violation
of any thereof except for such violations that, individually and in the
aggregate, are not reasonably likely to have a Material Adverse Effect.
Section 3.12 Consents. Except for the consent of the holders of the
Debentures issued pursuant to the Investment Agreement dated as of November 28,
2000 among the Investor, CIP Capital L.P. and the Company (the "SERIES A
DEBENTURES"))and Prestige Capital Corp., each of which have been obtained by the
Company on or prior to the date hereof, no consent, approval or authorization
of, or declaration, filing or registration with, any governmental or regulatory
authority or other party is required to be made or obtained by the Company in
connection with the execution and delivery of this Agreement or the other
Investment Agreements or the performance by the Company of its obligations
hereunder.
Section 3.13 Litigation, Orders. Except as set forth on SCHEDULE 3.13,
there are no claims, actions, suits, proceedings, or, to the best knowledge of
the Company, investigations or inquiries pending before any court, arbitrator or
governmental or regulatory official or office, or, to the knowledge of the
Company, threatened, against or affecting the Company or questioning the
validity of this Agreement, the other Investment Agreements or the transactions
contemplated hereby, thereby or under the Certificate of Incorporation or any
action taken or to be taken by the Company pursuant to this Agreement, the other
Investment Agreements, at law or in equity; nor, to the knowledge of the
Company, is there any valid basis for any such claim, action, suit, proceeding,
inquiry or investigation. The Company is not subject to any judgment, order or
decree entered in any lawsuit or proceeding that is reasonably likely to have a
Material Adverse Effect.
Section 3.14 Title to Properties; Encumbrances. Except as set forth on
SCHEDULE 3.14 the Company has good title to all of its properties and assets,
including any vehicles, free and clear of all liens, charges and encumbrances,
except liens for taxes not yet due and payable. All leases pursuant to which the
Company leases personal property, including any vehicles, are in good standing,
valid and effective in accordance with their respective terms, and there is no
existing material default or event of default (or event which with notice or
lapse of time, or both, would constitute a default and in respect of which the
Company has not taken adequate steps to prevent such a default from occurring)
thereunder.
Section 3.15 Intellectual Property. The Company and its subsidiaries own or
possess adequate trademarks and trade names and have all other rights to
inventions, know-how, patents, copyrights, trademarks, trade names, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS"), free and clear of all liens, security interests, charges,
encumbrances, equities and other adverse claims (except the security interest of
Prestige Capital Corp., Pennsylvania Business Bank and the holders of the Series
A Debentures and granted by the Company in connection with indebtedness extended
to the Company by Prestige Capital Corp., Pennsylvania Business Bank and the
holders of the Series A Debentures, respectively), necessary to conduct the
business now operated by them, or presently employed by them, and presently
contemplated to be operated by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property Rights. No proprietary technology of any Person was used
in the design or development by the Company of (or otherwise with respect to)
any of the Intellectual Property Rights, which technology was not properly
acquired by the Company from such Person.
Section 3.16 Environmental Matters. Neither the Company nor any of its
subsidiaries is in violation of any statute, rule, regulation, decision or order
of any governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
Environmental Laws, is liable for any off-site disposal or contamination
pursuant to any Environmental Laws, or is subject to any claim relating to any
Environmental Laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the Company
is not aware of any pending investigation that might lead to such a claim.
Section 3.17 Transactions with Affiliates. Except as disclosed in the
filings made with the Securities and Exchange Commission, other than certain
transactions with the Investor and Selway Management and pursuant to the
Company's option plans and any employment agreements , there are no loans,
leases, agreements, understandings, commitments or other continuing transactions
between the Company and any officer, director or five percent or greater
stockholder of the Company, or any family member or any person or entity that
directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control of any of the foregoing persons.
Section 3.18 Financial Statements. The financial statements included in
each SEC Filing present fairly and accurately the consolidated financial
position of the Company and its subsidiaries as of the dates shown and their
consolidated results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis. Except as set
forth on SCHEDULE 3.18 or in the financial statements of the Company included in
the SEC Filings filed prior to the date hereof, the Company has no liabilities,
contingent or otherwise, except those which individually or in the aggregate are
not material to the financial condition or operating results of the Company.
Section 3.19 Insurance Coverage. The Company and its subsidiaries maintain
in full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted, and properties owned or
leased, by the Company and its subsidiaries including without limitation
directors' and officers' insurance, and the Company reasonably believes such
insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
Section 3.20 Compliance with Nasdaq Continued Listing Requirements. The
shares of Common Stock are duly listed for trading on the Nasdaq SmallCap
Market. Except as set forth on SCHEDULE 3.13 there are no proceedings pending or
to the Company's knowledge threatened against the Company relating to the
continued listing of the Company's Common Stock on the Nasdaq SmallCap Market.
Section 3.21 Acknowledgment of Dilution. The number of shares of Common
Stock issuable pursuant to this Agreement may increase substantially. The
Company's executive officers and directors have studied and fully understand the
nature of the transactions being contemplated hereunder and recognize that they
have a potential dilutive effect.
Section 3.22 Investment Banking, Brokerage. There are no claims for
investment banking fees, brokerage commissions, finder's fees or similar
compensation (exclusive of professional fees to lawyers, accountants and other
consultants) in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of the Company or any
Affiliate. The Company shall indemnify the Investor against any claims for any
such fees, commissions or compensation payable to any broker or finder claiming
through the Company or any Affiliate thereof in connection with the transactions
contemplated by this Agreement or the other Investment Agreements and shall pay
all expenses incurred by the Investor in connection with the defense of any
action brought against the Investor to collect any such fees, commissions or
compensation by any broker or finder claiming through the Company or any
Affiliate.
Section 3.23 Subsidiaries. Other than insci-statements Israel Ltd., the
Company hereby represents and warrants that none of its subsidiaries has any
assets or is active.
Section 3.24 Disclosure. The representations and warranties made or
contained in this Agreement, the schedules and exhibits hereto and the
certificates delivered pursuant to the terms hereof, and the written current
information concerning the business of the Company delivered to the Investor in
connection with or pursuant to this Agreement, do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make such representations, warranties or
other material not misleading. No event has occurred and nothing material has
come to the attention of the Company that would indicate that any of such
information (together with any written updates thereof furnished by them) is not
true and correct in all material respects as of the date hereof.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
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The Investor represents and warrants to the Company as follows:
Section 4.1 Organization and Existence. The Investor is a validly existing
limited liability company and has all requisite limited liability company and
authority to invest in the Securities pursuant to this Agreement.
Section 4.2 Authorization. The execution, delivery and performance by the
Investor of the Investment Agreements have been duly authorized and each of the
Investment Agreements will constitute the valid and legally binding obligation
of the Investor, enforceable against the Investor in accordance with its terms.
Section 4.3 Investment Representations. Investor hereby acknowledges the
following:
(a) It is purchasing the Debentures and the other Securities to be
acquired pursuant to this Agreement for the Investor's own account, for
investment only and not with a view to or for sale in connection with the
distribution thereof except for sales contemplated by the Registration Rights
Agreement.
(b) It has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the investment
contemplated by this Agreement and making an informed investment decision with
respect thereto.
(c) It is an "accredited investor" as such term is defined in Rule 501
promulgated under the 1933 Act.
(d) It has reviewed and acknowledges the Risk Factors set forth on
SCHEDULE 4.3.
(e) It has had the opportunity to ask questions and receive and has
received answers concerning the terms and conditions of the offering of
securities purchased hereunder, as well as the opportunity to obtain additional
information necessary to verify the accuracy of information furnished in
connection with such offering that the Company possesses or can acquire without
unreasonable effort or expense; provided, however, such Investor has relied upon
the representations and warranties of the Company set forth in this Agreement,
and this Section 4.3 shall not be interpreted to limit that reliance.
(f) It understands that none of the Securities have been registered
under the 1933 Act or any state or foreign securities laws, and may not be
transferred unless subsequently registered thereunder or pursuant to an
exemption from registration, and that a legend indicating such restrictions will
be placed on the certificates representing such Securities.
(g) It understands that ▇▇▇▇▇ ▇▇▇▇▇▇ has only recently joined the
Company and that nothing herein shall be deemed to hold him personally liable
for the representations, warranties and obligations of the Company. The
foregoing notwithstanding, such waiver of personal liability shall in no event
be deemed to reduce the obligations of the Company with regard to such
representations, warranties or any of its other obligations.
Section 4.4 Brokerage. There are no claims for investment banking fees,
brokerage commissions, finder's fees or similar compensation (other than
professional fees to lawyers, accountants and other consultants) in connection
with the transactions contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of such Investor or any of its Affiliates. The
Investor shall indemnify the Company against any claims for any such fees,
commissions or compensation payable to any broker or finder claiming through the
Investor or any Affiliate thereof in connection with the transactions
contemplated by this Agreement and shall pay all expenses incurred by the
Company in connection with the defense of any action brought against the Company
to collect any such fees, commissions or compensation by any broker or finder
claiming through the Investor or any Affiliate.
Section 4.5 Authority; Binding Effect. The execution, delivery and
performance of the obligations of the Investor hereunder have been duly
authorized by all necessary company action. The execution, delivery and
performance of this Agreement and the other Investment Agreements, will not
violate any provision of the corporate documents of the Investor, or of any
instrument, judgment, order, writ, decree or contract to which it is a party or
by which it is bound or, of any provision of law, rule or regulation applicable
to the Investor. This Agreement and the other Investment Agreements have been
duly executed and delivered by the Investor, and each such agreement is a valid
and binding obligation of the Investor, enforceable against the Investor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to the enforcement of creditors' rights and remedies or by
other equitable principles of general application.
ARTICLE V. CONDITIONS PENDING THE CLOSINGS
-------------------------------
During the period from the date of this Agreement and continuing until the
consummation of the last Additional Closing unless specified otherwise below,
the Company covenants and agrees, unless otherwise specifically provided in this
Agreement, or unless the Investor shall otherwise agree in writing, to do the
following:
Section 5.1 Access to Information and Records. The Company shall permit the
Investor to continue to make such reasonable investigation of the operations and
properties of the Company, including providing access to the Company's officers
and its books and records and other documents, as the Investor deems necessary
or advisable in connection with the transactions contemplated hereby.
Section 5.2 Consents; Approvals; Efforts to Close. The Company shall
obtain, prior to the Initial Closing, all consents necessary for the
consummation of the transactions contemplated hereby. All such consents shall be
in writing and in form and substance reasonably satisfactory to the Investor,
and executed counterparts thereof shall be delivered to the Investor promptly
after receipt thereof by the Company, but in no event later than the Initial
Closing.
Section 5.3 Resolution of Claims. Any and all claims relating to any of the
capital stock of the Company shall have been resolved in a manner that is
satisfactory to Investor.
Section 5.4 Evidence of Insurance. The Company shall have delivered to the
Investor, a Certificate of Insurance reflecting Investor as additional insured
and loss payee in form and substance acceptable to Investor.
ARTICLE VI. AFFIRMATIVE COVENANTS OF THE COMPANY
------------------------------------
So long as any of the Debentures, Preferred Shares or Common Shares remain
outstanding, the Company shall comply with the following covenants:
Section 6.1 Proceeds; Commitment Fees. (a) The Company shall use the
proceeds from the issuance and sale of the Debentures for working capital
purposes only and shall not, directly or indirectly, use such proceeds or any
portion thereof to make any payments or pay any dividends to stockholders or
other Affiliates of the Company or to repay any indebtedness other than as is
specifically set forth in the Operating Budget.
(b) The Company hereby agrees to pay any and all Commitment Fees on
the Maturity Date (as defined in the Debenture).
Section 6.2 Reports. On a monthly basis, the Company will furnish to the
Investor unaudited financial statements of the Company, which shall include a
balance sheet, income statement and statement of cash flows, each prepared in
accordance with generally accepted accounting principles, consistently applied,
which financial statements shall be delivered by the Chief Executive Officer of
the Company within fifteen (15) days from the end of each calendar month for the
immediately preceding month. Such monthly financial statements shall be
accompanied by a certification by the Chief Executive Officer of the Company
that, to the best of her or his knowledge, such statements are true and correct
for such period.
Section 6.3 Reserved.
--------
Section 6.4 Directors' Indemnification and Insurance. The Certificate of
Incorporation or Bylaws of the Company shall at all times provide for
indemnification of the directors and limitations on the liability of the
directors to the fullest extent permitted under applicable state law. The
Company shall maintain on reasonable business terms, by financially sound and
reputable insurers, directors' and officers' liability insurance coverage.
Section 6.5 Insurance. The Company shall keep its insurable properties
insured, upon reasonable business terms, by financially sound and reputable
insurers against liability and the perils of casualty and fire and other hazards
and risks and liability to persons and property in amounts of coverage as are
sufficient in nature and amount to allow the Company to replace any of its
material properties or assets which might be damaged or destroyed and sufficient
to cover liabilities to which the Company could reasonably be expected to become
subject.
Section 6.6 Conduct of Business. The Company shall continue to engage
principally in the business now conducted by the Company or a business or
businesses similar thereto. The Company shall keep in full force and effect its
corporate existence and all Intellectual Property rights and licenses necessary
or useful in its business.
Section 6.7 Payment of Taxes, Compliance with Laws, etc. The Company shall
pay and discharge all lawful taxes, assessments and governmental charges or
levies imposed upon it or its income or property before the occurrence of any
default, as well as all lawful claims for labor, materials and supplies which,
if not paid when due, might become a lien or charge upon its property or any
part thereof; provided, however, that the Company shall not be required to pay
and discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof is being contested by the Company in good faith by appropriate
proceedings and an adequate reserve therefor has been established on its books.
The Company shall comply with all applicable laws and regulations in the conduct
of its business, including, without limitation, all applicable federal and state
securities laws in connection with the issuance of any securities.
Section 6.8 Right of the Investor to Participate in Future Transactions.
The Investor will have a right to participate in future non-public capital
raising transaction on the terms and conditions set forth in this Section 6.8.
During such period, the Company shall give five (5) business days advance
written notice to the Investor prior to any non-public offer or sale of any of
the Company's equity securities or any securities convertible into or
exchangeable or exercisable for such securities by providing to the Investor a
comprehensive term sheet containing all significant business terms of such a
proposed transaction. The Investor shall have the right (pro rata in accordance
with the Investor's participation in this offering) to purchase all (but not
less than all) of such securities which are the subject of such a proposed
transaction for the same consideration and on the same terms and conditions as
contemplated for such third-party sale. The Investor's rights hereunder must be
exercised in writing by the Investor within five (5) business days following
receipt of the notice from the Company. If, subsequent to the Company giving
notice to the Investor hereunder but prior to the Investor exercising its right
to participate (or the expiration of the five-day period without response from
the Investor), the terms and conditions of the proposed third-party sale are
changed from that disclosed in the comprehensive term sheet provided to the
Investor in accordance herewith, the Company shall be required to provide a new
notice to the Investor in accordance herewith and the Investor shall have the
right, which must be exercised within five (5) business days of such new notice,
to exercise its right to purchase the securities on such changed terms and
conditions as provided in accordance herewith. In the event the Investor does
not exercise its right hereunder, or affirmatively declines to engage in the
proposed transaction with the Company, then the Company may proceed with such
proposed transaction on the same terms and conditions as set forth in such
notice or in such revised notice provided to the Investor.
Section 6.9 Reservation of Securities. The Company hereby agrees, at all
times with respect to the conversion of the Debentures and conversion of the
Preferred Shares to reserve and keep available out of its authorized but
unissued shares of Common Stock and Preferred Stock, such number of shares of
Common Stock and Preferred Stock as shall from time to time equal the number of
Preferred Shares and Common Shares sufficient to permit the issuance of such
Shares upon the exercise or conversion of any such Securities provided that to
the extent that if, at any time it is determined there is an insufficient number
of shares of Common Stock to effect the conversion from Preferred Stock to
Common Stock, the Company shall promptly take all steps as are necessary to
amend its Certificate of Incorporation to increase the number of authorized
shares of Common Stock to such amount as shall be sufficient to convert all of
the Preferred Stock convertible into Common Stock at such time.
Section 6.10 Agreements. The Company shall not amend, modify or waive any
provisions of any confidentiality and non-disclosure agreement or
non-competition agreement between the Company and any of their respective
employees, officers, directors or agents, or any other party with whom such
agreement may now or hereafter exist.
Section 6.11 Material Adverse Changes. The Company shall promptly advise
the Investor in writing of any event, including without limitation any suit or
proceeding commenced or threatened against the Company, that in the reasonable
judgment of the Company could have a Material Adverse Effect.
Section 6.12 Inspection. The Company shall, upon reasonable prior notice,
permit authorized representatives of the Investor to visit and inspect any of
the properties of the Company, including its books of account (and to make
copies thereof and take extracts therefrom), and to discuss its affairs,
finances and accounts with its officers, administrative employees and
independent accountants, all at such reasonable times and as often as may be
reasonably requested.
Section 6.13 No Conflicting Agreements. The Company will not, and will not
permit its subsidiaries to, take any action, enter into any agreement or make
any commitment that would conflict or interfere in any material respect with the
obligations to the Investor under the Investment Agreements.
Section 6.14 Compliance with Laws. The Company will use its best efforts,
and will cause each of its subsidiaries to use their best efforts, to comply
with all applicable laws, rules, regulations, orders and decrees of all
governmental authorities, except to the extent non-compliance (in one instance
or in the aggregate) would not have a Material Adverse Effect.
Section 6.15 Corporate Existence; Board of Directors. So long as the
Investor beneficially owns any of the Securities: (a) the Company shall maintain
its corporate existence; (b) the Company shall be entitled to have up to seven
(7) members of the Board of Directors that were nominated by the Company; and
(c) for so long as the Debentures are outstanding, the holders of the Debentures
shall be entitled to nominate three (3) members of the Board of Directors of the
Company which, for these purposes, shall include any director elected by the
holders of the Preferred Stock The right of the holders of the Debentures to
elect three members of the Board of Directors shall be subject to the rights of
the holders of the Series A Preferred Stock (as defined in the Certificate of
Designation) to elect such members of the Board of Directors, which may include
requiring the resignation and replacement of incumbent members of the Board of
Director previously elected by the holders of the Debentures.
Section 6.16 Remedies. The Investor shall be entitled to a decree of
specific performance to enforce its rights hereunder and the other Investment
Agreements. The Company shall indemnify and hold harmless the Investor from and
against any loss, liability, costs, expenses or fees (including reasonable
attorneys fees) arising out of (i) the entry into and performance of the
Investment Agreements by the Investor, (ii) any breach by the Company of any
representation, warranty, covenant or agreement in any of the Investment
Agreements, and/or (iii) the enforcement of this Section.
Section 6.17 Expenses. Irrespective of any approvals necessary to
consummate the transactions contemplated hereby from the Board of Directors of
the Company or from the Company's stockholders, the Company shall pay at the
Initial Closing and any Additional Closing (which shall include any closing with
respect to the conversion of the Debentures or Preferred Shares, all reasonable
expenses and disbursements incurred by the Investor in connection with the
negotiation, preparation, execution, delivery and performance of this Agreement,
the other Investment Agreements and all transactions contemplated herein or
therein, including, without limitation, accounting and attorneys' fees and
expenses incurred in investigating the business and affairs of the Company
(including, without limitation, travel expenses) (collectively, the "INVESTOR
EXPENSES"). The Company shall remain liable for the Investor Expenses
notwithstanding any termination of this Agreement.
Section 6.18 Operating Budget. The Company shall be in compliance with the
Operating Budget attached hereto as Exhibit E hereto.
Section 6.19 Appointment of Officers. The Board of Directors of the Company
shall have approved the election of a Chief Executive Officer, who shall
initially be ▇▇▇▇▇ ▇▇▇▇▇▇, and a Chief Financial Officer, and will eliminate the
position of Chief Operating Officer.
Section 6.20 Payment of Expenses of Investor and Selway Management. The
Company hereby agrees to pay to Selway Management all of the $41,794.59 in
expenses of Selway Management incurred prior to the date hereof, but not paid to
date, on or before the ninetieth (90th) day after the date hereof in such
installments as the Company and Selway Management shall agree.
Section 6.21 Subsidiaries. The Company agrees that none of its subsidiaries
(other than insci-Statements Israel Ltd.) shall become active and that the
Company shall not transfer any assets to any of its subsidiaries unless it shall
have obtained the prior written consent, which consent shall not be unreasonably
withheld of Investor and shall have delivered such agreements as shall be
necessary or advisable to perfect Investor's security interest in such assets,
the necessity of which documents shall be determined in Investor's sole and
absolute discretion.
ARTICLE VII. NEGATIVE COVENANTS
Section 7.1 So long as the Debentures or any of the Preferred Shares are
outstanding the following matters shall be prohibited unless approved in
writing, by the holders of one hundred percent (100%) of the principal amount of
the Debentures and the approval of the holders of a majority of the Preferred
Shares then outstanding, voting as a class:
(a) the authorization and adoption of any amendment to the Certificate
of Incorporation or by-Laws of the Company or any subsidiary, or any other
action which would have the effect of amending the specific rights, preferences
or privileges of the Preferred Shares;
(b) the authorization or issuance of any equity securities of any
class with rights equal to or superior to those of the Preferred Shares, or
other securities convertible into such securities, and entering into any
contract or granting any option for the issuance of any such securities;
(c) the merger or consolidation of the Company or any subsidiary with
and/or into any Company, firm, or entity;
(d) the sale or other disposal of all or substantially all of the
Company's or any subsidiary's assets;
(e) entering into voluntary liquidation or effecting the winding up of
the Company or any subsidiary;
(f) entering into any transactions with any officer, director,
stockholder or other interested Person involving payments in excess of $25,000;
(g) incurrence of debt, on behalf of either the Company or any
subsidiary which in one transaction, or in a series of related transactions, in
the aggregate, exceeds the amount of US $25,000 in any fiscal year;
(h) the investment by the Company with or into any other corporation,
company, partnership or other person, or the lending of any funds to or issuing
the guaranty of the Company for the obligations of any other Person;
(i) incurring any capital expenditures which exceed individually or in
the aggregate of $25,000 in any fiscal year provided that, in the event that the
Company determines that capital expenditures are needed to be incurred on an
emergency basis, the Company shall obtain the prior approval of its Board of
Directors to the incurrence of such capital expenditures provided however, that
if the Company is not able to obtain such Board of Directors approval it shall
be deemed to have been authorized to make such capital expenditure, provided
further, that the Company provide notice to the Investor and Selway Management
of the capital expenditure;
(j) granting any new liens or encumbrances on any assets of the
Company;
(k) declaring or paying any dividend or other distribution of cash,
shares, or other assets to the stockholders of the Company in their capacity as
such;
(l) appointing and setting the compensation of the Company's and any
subsidiary's Chief Executive Officer, Chief Operating Officer and Chief
Financial Officer;
(m) increasing or decreasing the number of directors serving on the
Board of Directors of the Company or any subsidiary or changing the manner of
their designation to the Board; and
(n) effecting a fundamental change in the Line of Business of the
Company or any subsidiary.
ARTICLE VIII. CONDITIONS PRECEDENT TO INVESTOR'S OBLIGATION TO FUND
------------------------------------------------------
INITIAL INVESTMENT
------------------
The obligations of the Investor under this Agreement are subject to the
satisfaction, at or before the Initial Closing Date, of each of the following
conditions:
Section 8.1 Representations and Warranties of the Company. The
representations and warranties of the Company made pursuant to this Agreement
and any and all other Investment Agreements shall be true and correct in all
material respects as of the date when made and as of the date of the Initial
Closing as though made at that time (except for representations and warranties
that expressly relate to a different date) and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Initial Closing. The Investor shall have
received a certificate, executed on behalf of the Company by its Chief Executive
Officer, dated as of the Initial Closing Date, to the foregoing effect and as to
such other matters as may be reasonably requested by the Investor provided that
the delivery of the foregoing shall not be deemed to create personal liability
on the part of ▇▇▇▇▇ ▇▇▇▇▇▇, the Company's Chief Executive Officer; provided
further that the lack of such personal liability shall not limit the Company's
obligations with regards to any representations or warranties made therein (or
any of its other obligations).
Section 8.2 No Proceeding or Litigation. There shall not be threatened,
instituted or pending any suit, action, investigation, inquiry or other
proceeding by or before any court or governmental or other regulatory or
administrative agency or commission requesting or looking toward an order,
judgment or decree that (a) restrains or prohibits the consummation of any of
the transactions contemplated hereby or (b) could have a Material Adverse
Effect.
Section 8.3 No Injunction. On the Initial Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or other order issued
by a court of competent jurisdiction restraining or prohibiting the consummation
of any of the transactions contemplated hereby.
Section 8.4 Resolutions of the Company. The Company shall have delivered to
the Investor copies of duly adopted resolutions of the Company's Board of
Directors and the stockholders, certified by the Secretary of the Company as in
full force and effect on the Initial Closing Date, authorizing, among other
things, the execution and delivery of this Agreement and the other Investment
Agreements and the consummation of the transactions contemplated hereby and
thereby.
Section 8.5 Material Adverse Change. There shall not have occurred between
the date hereof and each Closing any event or series of related events that,
individually or in the aggregate, have or could reasonably be anticipated to
have a Material Adverse Effect as determined by the Investor in its sole
discretion.
Section 8.6 All Proceedings Satisfactory. All corporate proceedings taken
prior to or at the Closing in connection with the transactions contemplated by
this Agreement, and all documents and evidences incident thereto, shall be
reasonably satisfactory in form and substance to the Investor.
Section 8.7 Investment Agreements. The Company shall have executed and
delivered all of the Investment Agreements to which it is a party.
Section 8.8 Consents. The Company shall have obtained the written consents
of all parties necessary for the execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations hereunder and
the other Investment Agreements all of which written consents shall be
reasonably satisfactory in form, scope and substance to the Investor.
Section 8.9 Collateral for Debentures.
(a) Security Documents. The Company shall have executed and delivered
any and all documents necessary to reflect Investor's security interest in all
of the assets of the Company anywhere in the world, including without limitation
(i) documents necessary to perfect Investor's interest in the assets of the
Company or any of its subsidiaries located in Israel and (ii) a Security
Agreement, a Deposit Pledge Agreement, a Pledge Agreement, pledging the capital
stock of each of its subsidiaries and an Intellectual Property Security
Agreement, together with any and all financing statements or continuation
statements by any other documents Investor may request (collectively, the
"SECURITY DOCUMENTS") effecting a first priority security interest of the
Investors in all assets of the Company, whether now owned or hereafter acquired
as security for any and all Debentures issued pursuant to this Investment
Agreement whether in connection with an Initial Investment or any Additional
Investments, subordinate only to the security interest of Prestige Capital Corp.
and Pennsylvania Business Bank and to the holders of the Series A Preferred
Stock (collectively, the "SENIOR LIENS") to the extent of the then current
obligations of the Company to each such entity.
(b) Validity of Liens. The Security Documents shall be effective to
create in favor of the collateral agent for the benefit of the Investor a legal,
valid and enforceable first priority (except for the Senior Liens) security
interest in and lien upon all assets of the Company or any of its subsidiaries
wherever located in the world. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the opinion of the
Investor to protect and preserve such security interests shall have been duly
effected. The Investor shall have received evidence thereof in form and
substance satisfactory to the Investor.
Section 8.10 Opinion of Counsel. Counsel to the Company shall issue and
deliver to the Investor an opinion of counsel in form and substance reasonably
satisfactory to the Investor.
Section 8.11 UCC Search Results. The Agent shall have received results of
UCC searches with respect to the Collateral and all other personal property of
the Company and any subsidiaries, all in form and substance satisfactory to the
Investor.
Section 8.12 Expenses. The Company shall have paid the Investor Expenses
which amount shall be paid from the proceeds of the Initial Investment.
Section 8.13 No Default. No default, or event which, but for the lapse of
time or the giving of notice or both, would constitute a default of the
Company's obligations pursuant to this Agreement or any of the other Investment
Agreements shall have occurred and be continuing.
ARTICLE IX. OPTIONAL ADDITIONAL INVESTMENT; CONDITIONS PRECEDENT TO
-------------------------------------------------------
INVESTOR'S OBLIGATION TO FUND EACH ADDITIONAL INVESTMENT
--------------------------------------------------------
Section 9.1 Additional Investments. The Company agrees with the Investor
that the Investor shall have the option, in its sole and absolute discretion,
upon receipt of a request by the Company pursuant to Section 9.2 hereof, to
purchase from the Company up to an additional $350,000 principal amount, in the
aggregate, of Debentures (each, an "ADDITIONAL INVESTMENT") within one hundred
and twenty (120) days from the Initial Closing Date on the same terms and
conditions as are set forth in this Agreement on an Additional Closing Date. The
Investor shall have the right to assign all or a portion of its rights to make
the Additional Investment to one or more other parties. The Company shall pay
the Investor Expenses in connection with such Additional Investments from the
proceeds of each such Additional Investment.
Section 9.2 Requests Regarding Additional Investments. The Company shall
make a written request that Investor make an Additional Investment pursuant to
an Additional Investment Request substantially in the form attached hereto as
Exhibit H in such amount as shall be (i) in a minimum aggregate amount of
$50,000 and integral multiples thereof (except with respect to the issuance of
any Debentures pursuant to Section 10.4 which may be in such increments as shall
be necessary for the Company to pay any amounts owed to Selway Management in
connection therewith); and (ii) set forth the Operating Budget provided that the
Additional Investment, together with the Initial Investment and any and all
other Additional Investments shall in no event exceed $700,000. The Company
shall make such written request no less than five (5) business days prior to the
date on which the Company desires that the Investor fund such Additional
Investment through the purchase of such Debentures.
Section 9.3 Representations and Warranties of the Company. The Investor
shall have received a certificate, executed on behalf of the Company by its
Chief Executive Officer, dated as of the Additional Closing Date stating that
(i) the representations and warranties of the Company made pursuant to this
Agreement and any and all other Investment Agreements shall be true and correct
in all material respects as of the date when made and as of the date of each
Additional Closing as though made at that time (except for representations and
warranties that expressly relate to a different date), (ii) the Company shall
have performed, satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company at or prior to such Additional
Closing, (iii) there shall not have occurred between the date hereof and each
Closing any event or series of related events that, individually or in the
aggregate, have or could reasonably be anticipated to have a Material Adverse
Effect, (iv) no default, or event which, but for the lapse of time or the giving
of notice or both, would constitute a default of the Company's obligations
pursuant to this Agreement or any of the other Investment Agreements shall have
occurred and be continuing, and (v) as to such other matters as may be
reasonably requested by the Investor.
Section 9.4 Resolutions of the Company. The Company shall have delivered to
the Investor copies of duly adopted resolutions of the Company's Board of
Directors and the stockholders, certified by the Secretary of the Company as in
full force and effect on the Additional Closing Date, authorizing the execution
and delivery of the Investment Agreements relating to such Additional Investment
and the consummation of the transactions contemplated thereby.
Section 9.5 Investment Agreements. The Company shall have executed and
delivered an ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, corp. Convertible Subordinated Debenture
reflecting the Additional Investment.
Section 9.6 Opinion of Counsel. Counsel to the Company shall issue and
deliver to the Investor an opinion of counsel in form and substance reasonably
satisfactory to the Investor.
Section 9.7 Expenses. The Company shall have paid the Investor Expenses.
ARTICLE X. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY WITH RESPECT
---------------------------------------------------------------
TO EACH CLOSING
---------------
The obligations of the Company under this Agreement are subject to the
satisfaction, at or before the Initial Closing Date and each Additional Closing
Date, of each of the following conditions:
Section 10.1 Representations and Warranties of the Investor. The
representations and warranties of the Investor shall be true and correct in all
material respects as of the date when made and as of the date of the Closing as
though made at that time (except for representations and warranties that
expressly relate to a different date).
Section 10.2 No Proceeding or Litigation. There shall not be threatened,
instituted or pending any suit, action, investigation, inquiry or other
proceeding by or before any court or governmental or other regulatory or
administrative agency or commission requesting or looking toward an order,
judgment or decree that restrains or prohibits the consummation of any of the
transactions contemplated by this Agreement.
Section 10.3 No Injunction. On the Closing Date, there shall be no
effective injunction, writ, preliminary restraining order or other order issued
by a court of competent jurisdiction restraining or prohibiting the consummation
of any of the transactions contemplated hereby.
Section 10.4 Management Agreement Amendment No. 1. On or before the Initial
Closing, Selway Management will enter into Management Agreement Amendment No. 1
with the Company amending the Management Agreement dated as of November 1, 2000
between Selway Management and the Company, in certain respects including without
limitation to decrease in the management fees due from the Company to Selway
Management from $20,000 per month to $15,000 per month from and after the
Initial Closing Date, providing that the Company may pay Selway Management
either in cash or through the issuance of Debentures pursuant to an Additional
Closing provided that all other conditions set forth in Article IX of this
Agreement shall have been met for the issuance of such Debentures and providing
a waiver of certain rights of Selway Management in connection with the
securities issued upon conversion of the Debentures issued to Selway Management.
ARTICLE XI. TERMINATION OF AGREEMENT
Section 11.1 Termination of Agreement. This Agreement may be terminated
with respect to any Closing at any time prior to such Closing:
(a) with respect to the Initial Closing, by mutual written consent
duly executed by the Company and the Investor;
(b) with respect to any Additional Closings, in the sole and absolute
discretion of Investor;
(c) by the Investor if the Initial Closing shall not have been
consummated, on or before June 21, 2001; provided, however, that the right to
terminate this Agreement under Section 11.1(a) or 11.1(c) shall not be available
to any party whose failure to fulfill any covenant or agreement under this
Agreement or breach of a representation or warranty set forth herein has, in
full or in material part, been the cause of or resulted in the failure of such
Closing to occur on or before such date.
ARTICLE XII. MISCELLANEOUS
Section 12.1 Amendments, Waivers and Consents. For the purposes of this
Agreement, the other Investment Agreements and any and all other agreements
executed pursuant hereto, no course of dealing between the Company and the
Investor and no delay on the part of any party hereto in exercising any rights
hereunder or thereunder shall operate as a waiver of the rights hereof or
thereof. No provision hereof may be waived except by a written instrument signed
by the party so waiving such provision. This Agreement may not be amended except
by a written instrument duly executed by the Company and the Investor. No
supplement or modification of this Agreement shall be binding unless in writing
and approved and executed by the requisite parties in accordance with this
Section 12.1. Any amendment or waiver effected in accordance with this Section
12.1 shall be binding upon each holder of shares of the Debentures purchased
under this Agreement at the time outstanding and each future holder of all
Securities of the Company.
Section 12.2 Indemnification.
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(a) The Company shall indemnify the Investor and hold it harmless from
any and all actual damage, liability and reasonable expense (including
reasonable legal fees and costs, but excluding any liability for consequential
damages or loss of profit) sustained or incurred by the Investor as a result of
or in connection with the breach of any representation, warranty, covenant or
agreement contained in this Agreement.
(b) The obligations of the Company under this Section 12.2 shall
survive the sale, transfer, redemption or conversion of any of the Debentures,
each Closing and the termination of this Agreement and the transactions
contemplated hereby. The agreements contained in this Section 12.2 shall be in
addition to any other rights of the indemnified parties against the Company or
others.
Section 12.3 Survival of Representations, Warranties and Covenants;
Assignability of Rights. All covenants, agreements, representations and
warranties and indemnification obligations of the Company made herein and to be
performed prior to or at each Closing and in the certificates, exhibits,
schedules or other written current and historical information delivered or
furnished to the Investor in connection herewith or therewith (i) shall be
deemed to have been relied upon by the Investor, and (ii) shall survive each
delivery of the shares of the Debentures for a period of twelve (12) months and
shall inure to the benefit of each Investor's successors and assigns and to
transferees of the shares of the Debentures or any Preferred Shares.
Section 12.4 Governing Law; Jurisdiction; Venue. This Agreement shall be
governed by the laws of the State of New Jersey without regard to its conflicts
of laws principles. The state and federal courts of the State of New Jersey
shall have exclusive jurisdiction to hear and determine any claims or disputes
between the Investor and the other party or parties hereto pertaining directly
or indirectly to this Agreement and all documents, instruments and agreements
executed pursuant hereto, or to any matter arising therefrom (unless otherwise
expressly provided for therein). To the extent permitted by law, each party
hereby expressly submits and consents in advance to such exclusive jurisdiction
in any action or proceeding commenced by an Investor in any of such courts, and
agrees that service of such summons and complaint or other process or papers may
be made by registered or certified mail, return receipt requested, addressed to
such party at the address to which notices are to be sent pursuant to this
Agreement. To the extent permitted by law, should any party, after being so
served fail to appear or answer to any summons, complaint, or process or papers
so served within 30 days after the service thereof, if served in person, or
after the mailing thereof if mailed via certified mail return receipt requested
such party shall be deemed in default and an order and/or judgment may be
entered by such Investor against such party as demanded or prayed for in such
summons, complaint, process or papers. The exclusive choice of forum set forth
in this Section 12.4 shall not be deemed to preclude the enforcement of any
judgment obtained in such forum or the taking of any action to enforce the same
in any other appropriate jurisdiction.
Section 12.5 Section Headings. The descriptive headings in this Agreement
have been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction or interpretation of any provision hereof.
Section 12.6 Counterparts. This Agreement may be executed simultaneously by
facsimile and in any number of counterparts, each of which when so executed and
delivered shall be taken to be an original; but such counterparts shall together
constitute but one and the same document.
Section 12.7 Notices and Demands. Any notice or demand which is required or
provided to be given under this Agreement shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand,
telecopy, or nationally recognized overnight courier, or five days after being
sent by certified or registered mail, postage and charges prepaid, return
receipt requested, to the following addresses:
If to the Company:
▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, corp.
Two ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
Attention: Chief Executive Officer
If to the Company at the address set forth above. If to the Investor, at
the address set forth on the signature pages hereto,
Section 12.8 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
Section 12.9 Integration. This Agreement, including the exhibits, documents
and instruments referred to herein or therein, constitutes the entire agreement,
and supersedes any other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
Section 12.10 Press Release and Filings. The Company and the Investor shall
use reasonable best efforts to (i) develop a joint press release with respect to
this Agreement and the transactions contemplated hereby, (ii) unless otherwise
required by applicable law or by obligations pursuant to any listing agreement
with or rules of any securities exchange, consult with each other before issuing
any press release, or to the extent practical, otherwise before making any
public statement with respect to this Agreement or the transactions contemplated
hereby or (iii) jointly develop and make any required SEC Filings with the SEC
and any securities exchange on which the Company's securities are listed. In
addition to the foregoing, neither the Company nor the Investor shall issue any
press release or otherwise make any public statement or disclosure concerning
the other party or the other party's business, financial condition or results of
operations without the consent of the other party, which consent shall not be
unreasonably withheld or delayed.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
counterpart signature page to this Investment Agreement as of the day and year
first above written.
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, CORP.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇
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Title: President
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SELWAY PARTNERS, LLC
By /s/▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: CEO
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SELWAY MANAGEMENT, INC.
By: /s/▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: CEO
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