AGREEMENT, dated as of June 10, 1997, by and between AMNEX, INC., a New
York corporation (the "Company"), and the person or entity whose name appears on
the signature page hereto (the "Holder"). -------------------
WHEREAS, Logitech Corp. ("Logitech") is the holder of a certain promissory
note of the Company, dated May 1, 1995, in the principal amount of three hundred
twenty-five thousand dollars ($325,000) (the "Logitech Note").
WHEREAS, the principal amount of the Logitech Note, together with accrued
and unpaid interest thereon, was due and payable on May 1, 1997.
WHEREAS, the Logitech Note provides for the payment of interest on the
principal amount thereof at the rate of eight percent (8%) per annum.
WHEREAS, no interest has been paid on the principal amount of the Logitech
Note.
WHEREAS, certain persons and entities (collectively, the "1995
Noteholders") are holders of certain promissory notes, dated October 4, 1995, in
the aggregate principal amount of one million four hundred thousand dollars
($1,400,000) as set forth on Schedule A attached hereto (the "1995 Notes").
WHEREAS, the 1995 Notes provide for the payment of interest on the
principal amount thereof at the rate of ten percent (10%) per annum.
WHEREAS, the principal amounts of the 1995 Notes, together with all accrued
and unpaid interest thereon, are due and payable on October 4, 1999.
WHEREAS, the Company has the right to prepay the principal amounts of the
1995 Notes, in whole or in part, at any time without premium or penalty.
WHEREAS, there are currently outstanding seventy-two thousand four hundred
fifty (72,450) Series B Preferred Shares of the Company (the "Series B Preferred
Shares"), one million four hundred thirteen thousand three hundred thirty-seven
(1,413,337) Series D Preferred Shares of the Company (the "Series D Preferred
Shares"), one million thirty-five thousand (1,035,000) Series E Preferred Shares
of the Company (the "Series E Preferred Shares") and four hundred fifteen
thousand two hundred fifty (415,250) Series F Preferred Shares of the Company
(the "Series F Preferred Shares" and collectively with the Series B Preferred
Shares, the Series D Preferred Shares and the Series E Preferred Shares, the
"Preferred Shares").
WHEREAS, each Series B Preferred Share is convertible into ten (10) Common
Shares of the Company ("Common Shares").
WHEREAS, the holders of the Series B Preferred Shares (the "Series B
Holders") and the number of Series B Preferred Shares held by them are set forth
on Schedule B attached hereto.
WHEREAS, the Series B Holders are entitled to cumulative dividends at the
rate of forty cents ($.40) per share per annum.
WHEREAS, dividends with respect to the Series B Preferred Shares have been
paid through June 30, 1994.
WHEREAS, the holders of the Series D Preferred Shares (the "Series D
Holders") and the number of Series D Preferred Shares held by them are set forth
on Schedule C attached hereto.
WHEREAS, the Series D Holders are entitled to cumulative dividends at the
rate of twenty-five cents ($.25) per share per annum.
WHEREAS, no dividends have been paid with respect to the Series D Preferred
Shares.
WHEREAS, in the event of a liquidation of the Company, the Series D Holders
would be entitled to receive two dollars fifty cents ($2.50) per share and all
accrued and unpaid dividends thereon (the "Series D Liquidation Value").
WHEREAS, the holders of the Series E Preferred Shares (the "Series E
Holders") and the number of Series E Preferred Shares held by them are set forth
on Schedule D attached hereto.
WHEREAS, the Series E Holders are entitled to cumulative dividends at the
rate of twenty-two and one-half cents ($.225) per share per annum.
WHEREAS, no dividends have been paid with respect to the Series E Preferred
Shares.
WHEREAS, in the event of a liquidation of the Company, the Series E Holders
would be entitled to receive two dollars eighty-one and one-quarter cents
($2.8125) per share and all accrued and unpaid dividends thereon (the "Series E
Liquidation Value").
WHEREAS, the holders of the Series F Preferred Shares (the "Series F
Holders" and collectively with the Series B Holders, the Series D Holders and
the Series E Holders, the "Preferred Holders") and the number of Series F
Preferred Shares held by them are set forth on Schedule E attached hereto.
WHEREAS, the Series F Holders are not entitled to any preferential
dividends.
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WHEREAS, in the event of a liquidation of the Company, the Series F Holders
would be entitled to receive five dollars ($5.00) per share (the "Series F
Liquidation Value" and collectively with the Series D Liquidation Value and
Series E Liquidation Value, the "Liquidation Value").
WHEREAS, the Holder is Logitech and/or a Preferred Holder.
WHEREAS, upon the terms and subject to the conditions hereof, the Holder
(if a Series B Holder) has agreed to convert its Series B Preferred Shares into
Common Shares.
WHEREAS, upon the terms and subject to the conditions hereof, the Company
has agreed to repurchase from the Holder (other than the Series B Holders), and
the Holder (other than the Series B Holders) has agreed to sell to the Company,
the Logitech Note and/or the Holder's Preferred Shares, as the case may be.
WHEREAS, upon the terms and subject to the conditions hereof, the Company
has agreed to prepay the outstanding principal amounts of, and all accrued and
unpaid interest due under, the 1995 Notes.
WHEREAS, prior hereto, Spring Technology Corp. ("Spring") elected to
convert $96,000 principal amount of a certain $450,000 principal amount
promissory note of the Company dated March 8, 1993 (the "Spring Note"), together
with accrued interest thereon, into Common Shares in accordance with the
provisions of the Spring Note.
WHEREAS, concurrently herewith, Spring and Cofinvest 97 Ltd. ("Cofinvest")
are entering into a Note Purchase Agreement of even date (the "Note Purchase
Agreement") with, among others, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") pursuant to which,
among other matters, Spring and Cofinvest are agreeing to sell to Galesi or his
designee, upon the terms and subject to the conditions thereof, the unconverted
portion of the Spring Note and a certain promissory note of the Company dated
July 13, 1993 in the principal amount of $50,000, respectively (collectively,
the "1993 Notes").
WHEREAS, concurrently herewith, the Company and Galesi are entering into an
agreement of even date (the "Conversion Agreement") pursuant to which, among
other matters, Galesi is agreeing to convert or cause the conversion of the
principal amounts of, and accrued interest on, the 1993 Notes into Common Shares
in accordance with the provisions of the 1993 Notes and the Conversion
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto have
agreed, and do hereby agree, as follows:
1. Recitals. Each of the parties hereto acknowledges and agrees that each of
the above recitals is true and that each has relied upon the accuracy
thereof in entering into this Agreement.
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2. Conversion of Series B Preferred Shares; Sale of Logitech Note and
Preferred Shares; Escrow Agreement; Prepayment of 1995 Notes.
2.1 Conversion of Series B Preferred Shares. In the event the Holder
is a Series B Holder, upon the terms and subject to the conditions
hereinafter set forth, effective at the Closing (as hereinafter defined),
the Holder elects and agrees to convert all of its Series B Preferred
Shares into Common Shares (the "Series B Underlying Shares").
2.2 Sale of Logitech Note. In the event the Holder is Logitech, upon
the terms and subject to the conditions hereinafter set forth, at the
Closing, the Holder agrees to sell, transfer and deliver to the Company,
and the Company agrees to repurchase from the Holder, the Logitech Note,
free and clear of all liens, security interests, pledges, claims, charges
and encumbrances thereon (collectively, "Encumbrances"), at a purchase
price (the "Note Purchase Price") equal to the principal amount thereof
together with accrued and unpaid interest thereon through the day
immediately preceding the Closing.
2.3 Sale of Preferred Shares. (a) In the event the Holder is a
Preferred Holder (other than a Series B Holder), upon the terms and subject
to the conditions hereinafter set forth, at the Closing, the Holder agrees
to sell, transfer and deliver to the Company, and the Company agrees to
repurchase from the Holder, the Holder's Preferred Shares, free and clear
of all Encumbrances, at a purchase price (the "Preferred Purchase Price"
and collectively with the Note Purchase Price, the "Purchase Price") equal
to the Liquidation Value thereof.
2.4 Escrow Agreement. Simultaneously herewith, if the Holder is
Logitech, the Company, the Holder and Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇, LLP
(the "Escrow Agent") are entering into an Escrow Agreement pursuant to
which the original Logitech Note and an Assignment of Note are being
delivered to the Escrow Agent, to be held pursuant to the terms and
conditions of the Escrow Agreement.
2.5 Prepayment of 1995 Notes. Promptly following the Closing, the
Company agrees to send to the 1995 Noteholders a notice in the form of
Exhibit A hereto (the "Redemption Notice") to the effect that it will
redeem and prepay the outstanding principal amounts of, and all accrued and
unpaid interest under, the respective 1995 Notes for an aggregate
consideration to all of the 1995 Noteholders of one million four hundred
seventy thousand dollars ($1,470,000) plus the aggregate amount to all of
the 1995 Noteholders of three hundred eighty three dollars and fifty-six
cents ($383.56) per day from July 1, 1997 to the date of redemption, and
the Company shall redeem and prepay the 1995 Notes in accordance with the
provisions of the Redemption Notice.
3. Representations and Warranties of the Holder. As a material inducement to
the Company's entering into this Agreement, the Holder hereby represents
and warrants to the Company as follows:
3.1 Valid Existence; Authority; Binding Nature. The Holder, if other
than a natural person, is validly existing and in good standing under the
laws of the jurisdiction of
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its formation. The Holder has the power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement by the Holder and the performance by the Holder
of its obligations hereunder have been duly authorized by the Board of
Directors or other governing body, if any, of the Holder and, if required,
its respective shareholders in conformity with applicable law. No other
corporate or other proceeding on the part of the Holder is necessary to
authorize the execution or delivery of this Agreement or the performance by
the Holder of its obligations hereunder. This Agreement is the valid and
binding obligation of the Holder and is enforceable against it in
accordance with the terms hereof. Each person executing this Agreement on
behalf of the Holder has been duly authorized to execute and deliver this
Agreement on the Holder's behalf.
3.2 Consent. Neither the execution and delivery of this Agreement by
the Holder, nor the performance by the Holder of its obligations hereunder,
requires the consent or approval of any third party or any foreign
governmental body or other foreign regulatory or administrative authority,
agency, bureau or commission (collectively, "Foreign Governmental Body").
3.3 No Breach. Neither the execution and delivery of this Agreement by
the Holder, nor the performance by the Holder of its obligations hereunder,
(i) violates, conflicts with or results in a breach of any provision of the
Certificate of Incorporation or By-Laws or other charter or organizational
document, if any, of the Holder; (ii) violates, breaches or is in conflict
with, or constitutes a default (or an event which, with notice or lapse of
time or both, would constitute a default) under any agreement or other
obligation to which the Holder is a party or by which it is otherwise
bound; or (iii) violates any order, writ, injunction, decree or judgment,
or any law, statute, rule or regulation of any Foreign Governmental Body
applicable to the Holder.
3.4 Litigation. There is no litigation or governmental proceeding
pending against the Holder or, to the knowledge of the Holder, pending
against any other person or entity or threatened, that seeks to restrain,
invalidate, prevent, or otherwise impede, or to obtain damages in respect
of, the carrying out by the Holder of the transactions contemplated hereby.
3.5 Title. The Holder owns the Logitech Note and/or its Preferred
Shares free and clear of any and all Encumbrances; the Holder has good and
marketable title to the Logitech Note and/or its Preferred Shares and has
the absolute and unqualified right to sell, transfer and deliver the
Logitech Note and/or its Preferred Shares to the Company; and the delivery
of the Logitech Note and/or its Preferred Shares to the Company pursuant to
the provisions hereof will transfer valid title thereto, free and clear of
all Encumbrances.
3.6 Receipt of SEC Reports. The Holder acknowledges receipt of, and
has reviewed, the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (including an accompanying letter to shareholders
sent in connection with the Company's Annual Meeting of Shareholders held
on May 14, 1997 (the "Meeting")), Quarterly Report on Form 10-Q for the
period ended March 31, 1997, Current Reports on Form 8-K for events dated
June 28,
5
1996, as amended, May 3, 1997 and May 28, 1997 and Proxy Statement dated
May 3, 1997 with regard to the Meeting (the "Proxy Statement") and has been
afforded the opportunity to obtain such other information with respect to
the Company as the Holder determined was necessary in order to evaluate the
merits and risks of the sale of the Logitech Note and/or its Preferred
Shares to the Company on the terms and conditions hereof. The Holder also
acknowledges that, concurrently with its receipt of the initial draft of
this Agreement, it received a copy of the Company's preliminary Proxy
Statement with regard to the Meeting (as filed with the Securities and
Exchange Commission (the "SEC") on April 23, 1997).
3.7 Negotiation of Terms; Powers of Representative. The purchase price
for the Logitech Note and/or Preferred Shares and the other terms and
conditions set forth herein were determined by negotiation between the
Company and ▇▇▇▇▇▇▇ Corporate Finance AG (the "Representative"), which the
Holder represents, warrants, acknowledges and agrees acted as
representative on behalf of the Holder in such regard. The Holder
acknowledges and agrees further that, pursuant to the terms of this
Agreement, the Representative has the right and power, and the Holder
hereby confirms that the Representative shall have the right and power, to,
among other things, receive, on behalf of the Holder, the Purchase Price
for the Logitech Note and/or its Preferred Shares, the Underlying Series B
Shares and the Series B Dividend (as hereinafter defined), and/or designate
the account(s) to which the Purchase Price and/or Series B Dividend is to
be sent (which account may or may not be in the name of or for the benefit
of the Holder), and/or designate the name(s) in which the Series B
Underlying Shares are to be registered (which may or may not be the names
of the Series B Holders) and/or the address to which the Purchase Price,
Series B Dividend and/or Series B Underlying Shares are to be delivered.
3.8 Opportunity to Evaluate Terms. The Holder was given ample and
adequate opportunity to evaluate the terms and conditions of this Agreement
and was not given any deadline or subjected to other pressure to execute
and deliver this Agreement.
3.9 Status of Holders. The Holder is an "accredited investor" (as such
term is defined in Rule 501 promulgated under the Securities Act of 1933,
as amended (the "Securities Act")), is not a "U.S. person" (as such term is
defined in Rule 902 promulgated under the Securities Act) and, either alone
or with the Representative, has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks
of the sale of the Logitech Note and/or its Preferred Shares to the Company
on the terms and conditions hereof.
3.10 Ownership of Securities. Except for the Logitech Note and/or the
Preferred Shares and except as set forth on Schedule 3.10 attached hereto,
the Holder does not own, beneficially or of record, any Common Shares or
Preferred Shares, any rights, options or warrants for the purchase of
Common Shares or Preferred Shares or any securities or instruments that are
convertible into or exchangeable for Common Shares or Preferred Shares.
4. Representations and Warranties of the Company. As a material inducement to
the Holder's entering into this Agreement, the Company hereby represents
and warrants to the Holder as follows:
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4.1 Valid Existence; Authority; Binding Nature. The Company is validly
existing and in good standing under the laws of the state of New York. The
Company has the power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution and delivery of this
Agreement by the Company and the performance by the Company of its
obligations hereunder have been duly authorized by the Board of Directors
of the Company in conformity with applicable law. No other corporate
proceeding on the part of the Company, including, without limitation,
shareholder approval, is necessary to authorize the execution or delivery
of this Agreement or the performance by the Company of its obligations
hereunder. This Agreement is the valid and binding obligation of the
Company and is enforceable against it in accordance with the terms hereof.
The person executing this Agreement on behalf of the Company has been duly
authorized to execute and deliver this Agreement on its behalf.
4.2 Consents. Neither the execution and delivery of this Agreement by
the Company, nor the performance by the Company of its obligations
hereunder, requires the consent or approval of any third party or any
United States governmental body or other United States regulatory or
administrative authority, agency, bureau or commission ("Domestic
Governmental Body"), except that the foregoing representation and warranty
with regard to the requirement of any consent or approval of the SEC is
subject to the accuracy of the Holder's representations and warranties in
Sections 3.6 through 3.9 hereof.
4.3 No Breach. Neither the execution and delivery of this Agreement by
the Company, nor the performance by the Company of its obligations
hereunder, (i) violates, conflicts with or results in a breach of any
provision of the Certificate of Incorporation or By-Laws of the Company;
(ii) violates, breaches or is in conflict with, or constitutes a default
(or an event which, with notice of lapse of time or both, would constitute
a default) under any agreement or other obligation to which the Company is
a party or by which the Company is otherwise bound; or (iii) violates any
order, writ, injunction, decree or judgment, or any law, statute, rule or
regulation of any Domestic Governmental Body applicable to the Company,
except that the foregoing representation and warranty with regard to any
law, statute, rule or regulation, as it applies to the SEC or any
securities laws, statutes, rules or regulations, is subject to the accuracy
of the Holder's representations in Sections 3.6 through 3.9 hereof.
4.4 Litigation. There is no litigation or governmental proceeding
pending against the Company or, to the knowledge of the Company, pending
against any other person or entity or threatened, that seeks to restrain,
invalidate, prevent, or otherwise impede, or to obtain damages in respect
of, the carrying out by the Company of the transactions contemplated
hereby.
5. Covenants; Lock-Up.
5.1 Holder Covenants. (a) The Holder hereby covenants that, from and
after the date hereof and until the Closing or earlier termination of this
Agreement:
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(i) The Holder will not exercise its right to convert the
Logitech Note and/or any of its Preferred Shares (other than the
Series B Preferred Shares as set forth herein) into Common Shares.
(ii) The Holder will not sell, transfer or otherwise dispose of,
or enter into or conduct negotiations, or enter into any agreement or
understanding, for the sale, transfer or disposition of, the Logitech
Note and/or any of its Preferred Shares.
(iii) The Holder will use its best efforts to ensure that all of
its representations and warranties contained herein are true in all
material respects as of the Closing as if repeated at and as of such
time.
(b) In the event the Holder is Spring, Cofinvest, Logitech, Eagle
Growth Ltd. or ▇▇▇▇▇ Ltd., each a Preferred Holder, or Pine Inc.,
concurrently with the execution of this Agreement, the Holder is executing
and delivering to the Company a letter in the form of Exhibit B hereto
addressed to the representative of the initial purchasers in the Offering
(as hereinafter defined).
(c) In the event the Holder is Spring or is otherwise a Series B
Holder, concurrently with the execution of this Agreement, the Holder is
executing and delivering to the Company a letter in the form of Exhibit C
hereto addressed to the representative of the initial purchasers in the
Offering.
5.2 Company Covenants. The Company hereby covenants that, from and
after the date hereof and until the Closing or earlier termination of this
Agreement, it will use its best efforts to ensure that all of its
representations and warranties contained herein are true in all material
respects as of the Closing as if repeated at and as of such time.
6. Conditions Precedent to the Obligation of the Company to Close. The
obligation of the Company to consummate the transactions contemplated
hereby is subject to the fulfillment prior to or on the Closing Date (as
hereinafter defined) of each of the following conditions, any one or more
of which may be waived by the Company:
6.1 Representations and Warranties. All representations and warranties
of the Holder contained in this Agreement shall be true in all material
respects as of the Closing Date, as if made at the Closing and as of the
Closing Date.
6.2 Covenants. The Holder shall have performed and complied in all
material respects with all covenants required by this Agreement to be
performed or complied with by it prior to or at the Closing.
6.3 Certificates. The Company shall have received a certificate, dated
the Closing Date, signed by or on behalf of the Holder by a duly authorized
officer or other duly authorized representative thereof, as to the
satisfaction of the conditions set forth in Sections 6.1 and 6.2.
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6.4 No Actions. No action, suit, proceeding or investigation shall
have been instituted, and be continuing, before a court or before or by a
governmental body or agency, or shall have been threatened and be
unresolved, to restrain, invalidate, prevent, or otherwise impede, or to
obtain damages in respect of, the carrying out by the Company of its
obligations hereunder.
6.5 Consummation of Offering. The Company shall have consummated the
convertible debt offering described in the Proxy Statement or other similar
equity or convertible debt offering (in either case, the "Offering") and,
in either case, shall have received gross proceeds of at least fifty
million dollars ($50,000,000) therefrom.
6.6 Delivery of Logitech Note and/or Preferred Shares. The Escrow
Agent shall have delivered to the Company the Logitech Note and/or the
Holder shall have delivered to the Company its Preferred Shares in
conformity with the provisions of Section 8.2 hereof.
6.7 Agreements with Logitech and Other Preferred Holders. The Company
shall have entered into agreements, in or substantially in the form of this
Agreement, with Logitech and all of the other Preferred Holders and the
Company's obligations to repurchase the Logitech Note and/or Preferred
Shares pursuant to such other agreements shall have been fulfilled or
waived by the Company.
6.8 Note Purchase Agreement; Conversion Agreement. Simultaneously with
the Closing, the Note Purchase Agreement and the Conversion Agreement shall
have been consummated in accordance with the provisions thereof.
7. Conditions Precedent to the Obligation of the Holder to Close. The
obligation of the Holder to consummate the transactions contemplated hereby
is subject to the fulfillment prior to or on the Closing Date of each of
the following conditions, any one or more of which may be waived by the
Holder:
7.1 Representations and Warranties. All representations and warranties
of the Company contained in this Agreement shall be true in all material
respects as of the Closing Date, as if made at the Closing and as of the
Closing Date.
7.2 Covenants. The Company shall have performed and complied in all
material respects with all covenants required by this Agreement to be
performed or complied with by it prior to or at the Closing.
7.3 Certificate. The Representative, on behalf of the Holder, shall
have received a certificate, dated the Closing Date, signed on behalf of
the Company by a duly authorized officer thereof, as to the satisfaction of
the conditions set forth in Sections 7.1 and 7.2.
9
7.4 No Action. No action, suit, proceeding or investigation shall have
been instituted, and be continuing, before a court or before or by a
governmental body or agency, or shall have been threatened and be
unresolved, to restrain, invalidate, prevent or otherwise impede, or to
obtain damages in respect of, the carrying out by the Holder of its
obligations hereunder.
7.5 Tender of Purchase Price. The Company shall have tendered to the
Representative, on behalf of the Holder (other than a Series B Holder), the
Purchase Price for the Logitech Note and/or the Holder's Preferred Shares,
as the case may be, in accordance with the provisions of Sections 3.7 and
8.3 hereof.
7.6 Series B Dividends; Stock Certificate. If the Holder is a Series B
Holder, the Company shall have declared and tendered to the Representative,
on behalf of the Holder, in accordance with the provisions of Sections 3.7
and 8.3 hereof, a dividend on the Series B Preferred Shares covering the
period ending immediately preceding the Closing Date (the "Series B
Dividend") and shall have tendered to the Representative, on behalf of the
Holder, in accordance with the provisions of Sections 3.7 and 8.3 hereof, a
certificate representing the Series B Underlying Shares (which certificate
shall contain a legend to reflect the lock-up provided for in Section
5.1(c) hereof).
8. Closing.
8.1 Location Time and Date. Subject to the satisfaction or waiver of
the conditions to Closing set forth in Sections 6 and 7 hereof, the sale
and repurchase of the Logitech Note and/or Preferred Shares contemplated by
this Agreement shall be consummated at a closing (the "Closing") to be held
at the offices of Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇, LLP, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 a.m. on the business day immediately
following the closing of the Offering or at such other time and place as
may be mutually agreed to by the Company and the Representative (the
"Closing Date").
8.2 Items to be Delivered by the Holder. At the Closing, the Holder
will deliver or cause to be delivered to the Company the following
documents, or, pursuant to the terms of the Escrow Agreement, the following
documents will be delivered to the Company:
(a) the original Logitech Note and the Assignment of Note; and/or
(b) for Holders other than Series B Holders, the Holder's
certificate(s) representing its Preferred Shares, duly endorsed in
blank, or accompanied by a stock power duly executed in blank, in
either case with (i) signature(s) guaranteed and notarized and
accompanied by such other evidence as is acceptable to the Company as
to the identity of the Holder or the authority of the person(s)
signing on behalf of the Holder and (ii) all necessary transfer tax
stamps affixed and cancelled; and/or
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(c) for Series B Holders, the Holder's certificate(s)
representing its Preferred Shares.
8.3 Items to be Delivered by the Company. At the Closing, the Company
will deliver or cause to be delivered to the Representative, on behalf of
the Holder, in accordance with the provisions of Section 3.7 hereof, the
following:
(a) the Purchase Price and/or Series B Dividend by bank or
certified check payable to the order of the Holder, or by wire
transfer to an account or accounts designated by the Representative,
in either case in immediately available funds; and/or
(b) a certificate representing the Series B Underlying Shares.
9. Survival of Representations. The parties hereby agree that their respective
representations and warranties shall survive the Closing.
10. Termination. This Agreement may be terminated and the transactions provided
for herein abandoned at any time prior to the Closing Date:
(a) by mutual consent of the Company and the Holder;
(b) by the Company if any of the conditions set forth in Section 6
hereof shall not have been fulfilled on or prior to July 31, 1997 (the
"Outside Date"), or shall become incapable of fulfillment, and shall not
have been waived by the Company; or
(c) by the Holder if any of the conditions set forth in Section 7
hereof shall not have been fulfilled on or prior to the Outside Date
(except that the Company shall have the right to extend the Outside Date to
a date no later than September 30, 1997 upon written notice to the Holder)
or shall have become incapable of fulfillment, and shall not have been
waived by the Holder.
In the event that this Agreement is terminated as provided for above,
this Agreement shall be of no further force and effect and no party shall
have any liability or obligation hereunder, except for any breach of this
Agreement that has occurred prior to the termination thereof.
11. Notices. Except as otherwise expressly provided for hereunder, any
communication or notice given hereunder shall be, and shall be deemed to be
given when, delivered by hand, or sent by certified or registered mail,
return receipt requested and postage being prepaid, overnight mail or
courier, or telecopier as follows:
If to the Company:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to:
Certilman Balin ▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇ ▇. ▇▇▇▇▇, Esq.
American Network Exchange, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holder:
c/▇ ▇▇▇▇▇▇▇ Corporate Finance AG
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier Number: 011 411 283 2901
or at such other address as any party may specify by notice given to the
other parties hereto in accordance with the provisions hereof.
12. Further Assurances. Each of the parties hereto will execute and deliver any
and all further documents as are reasonably necessary to carry out the
provisions hereof.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, applicable to
agreements performed wholly within such state.
14. Entire Agreement. This Agreement sets forth the entire understanding of the
parties hereto with regard to the subject matter hereof and there are no
representations, warranties or commitments except as set forth herein. This
Agreement supersedes all prior agreements, understandings, negotiations and
discussions, whether written or oral, relating to the subject matter
hereof. This Agreement may be modified only by a written agreement between
the Company and the Holder.
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15. Waiver of Breach; Partial Invalidity. The waiver by either party of a
breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach. If any provision, or part thereof, of
this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and not
in any way affect or render invalid or unenforceable any other provisions
of this Agreement, and this Agreement shall be carried out as if such
invalid or unenforceable provision, or part thereof, had been reformed, and
any court of competent jurisdiction is authorized to so reform such invalid
or unenforceable provision, or part thereof, so that it would be valid,
legal and enforceable to the fullest extent permitted by applicable law.
16. Binding Nature. This Agreement shall be binding upon the successors,
assigns and legal representatives of the parties hereto.
17. Headings. The paragraph headings of this Agreement are for convenience and
reference only and do not in any way modify, interpret or construe the
intent of the parties or affect any of the provisions of this Agreement.
18. Counterparts; Effectiveness. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which taken
together shall constitute one agreement. This Agreement shall be effective
against the Holder in accordance with the terms and conditions hereof upon
its execution and delivery hereof (regardless of whether Logitech and/or
any other Preferred Holder shall execute and deliver an agreement in the
form executed by the Holder or otherwise).
19. Facsimile Signatures. Signatures transmitted by facsimile transmission
shall be deemed original signatures.
20. Third Party Beneficiary. This Agreement is for the sole benefit of the
parties hereto. No third party shall have any beneficial interest herein,
directly or indirectly, nor may any third party rely on the terms,
provisions, or conditions of this Agreement.
21. Materiality. All promises, covenants, agreements, understandings,
acknowledgments, representations, and warranties made in this Agreement
shall be deemed material and relied on by each party to this Agreement.
22. Remedies Cumulative. Each right, power, and remedy provided for herein or
now or hereafter existing at law or in equity, by statute or otherwise,
shall be cumulative and concurrent and shall be in addition to every other
right, power, and remedy provided for herein or now or hereafter existing
at law or in equity, by statute or otherwise, and the exercise or the
beginning of the exercise by any party of any one or more of such rights,
powers, or remedies shall not preclude the simultaneous or later exercise
by such party of any or all of such other rights, powers and remedies.
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23. Specific Performance; Jurisdiction.
23.1 Specific Performance. The parties hereby acknowledge and agree
that the failure of either party to this Agreement to perform the
provisions hereof in accordance with their specific terms or other breach
of such provisions will cause irreparable injury to the other party to this
Agreement for which damages, even if available, will not be an adequate
remedy. Accordingly, the parties hereby consent to the issuance of
injunctive relief by any court of competent jurisdiction to compel
performance of any party's obligations, including an injunction to prevent
breaches, and to the granting by any such court of the remedy of specific
performance of the terms and conditions hereof.
23.2 Jurisdiction. Each party hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State
of New York and of the United States of America located in the State of New
York for any actions, suits or proceedings arising out of or relating to
this Agreement, the matters referred to herein or the transactions
contemplated hereby. Each party also hereby irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or
proceeding arising out of this Agreement, the matters referred to herein or
the transactions contemplated hereby in the courts of the State of New York
or of the United States of America located in the State of New York, and
hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
24. Confidentiality.
(a) Except as otherwise required by applicable law based upon a
written opinion of counsel to the disclosing party reasonably satisfactory
to the party affected by the disclosure and as otherwise hereinafter
provided, each party shall use Confidential Information (as hereinafter
defined) only in connection with the performance of its obligations under
this Agreement, shall not otherwise use Confidential Information to its own
advantage, shall not use Confidential Information in competition with or to
the detriment of the other party, shall hold and treat all Confidential
Information in confidence and shall not disclose or offer to disclose any
Confidential Information to any person or entity not a party to this
Agreement, except that the Holder may disclose Confidential Information to
a particular banking institution for whose benefit the Holder is holding
the Notes and/or Preferred Shares (an "Institution") or to others for whom
the Institutions hold the Notes and/or Preferred Shares (an "Ultimate
Beneficial Owner"), provided that, prior to such disclosure, such
Institution and/or Ultimate Beneficial Owner shall have executed and
delivered to the Company a writing, in form and substance reasonably
acceptable to the Company, in which it agrees to be bound by the provisions
hereof. The term "Confidential Information", as used in this section, means
all confidential or proprietary information and trade secrets of or
relating to any other party, an Institution or an Ultimate Beneficial
Owner. Confidential Information shall not include information generally
known or readily ascertainable by proper means. To the extent that
14
Confidential Information, through no act or omission of a party, an
Institution or an Ultimate Beneficial Owner, or any of its affiliates,
employees or agents, becomes generally known or readily ascertainable by
proper means, such information shall no longer be considered Confidential
Information for purposes of this Agreement. If any party or its affiliates
or agents are requested or required (by oral questions, interrogatories,
requests for information or documents, subpoena or similar process) to
disclose any Confidential Information, it is agreed that such party (the
"disclosing party") will cooperate with the other party (the "protected
party") and provide it with prompt notice of such request(s) so that the
protected party may seek an appropriate protective order and/or waive
compliance by the disclosing party with the provisions of this Section
24(a). If, in the absence of a protective order or the receipt of a waiver
hereunder, the disclosing party or its affiliates or agents are
nonetheless, in the opinion of the disclosing party's counsel, legally
required to disclose Confidential Information to any tribunal or else stand
liable for contempt or suffer other censure or penalty, it may disclose
such information to such tribunal without liability hereunder.
(b) Nothing herein shall restrict the Company from disclosing publicly
this Agreement and/or the terms and conditions hereof.
25. Pronouns. Whenever the context requires, any pronoun used in this Agreement
shall be deemed to cover both gender forms as well as the neuter form.
26. Counsel. The Holder acknowledges that it has been given the opportunity,
and has been encouraged, to consult with counsel in connection with the
negotiation, execution and delivery of this Agreement and has determined
not to consult with counsel in connection therewith.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
LOGITECH CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
SPRING TECHNOLOGY CORP.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
K:\WPDOC\CORP\AMNEX\▇▇▇▇▇▇▇.2\AGREEMEN\AMDMAIN.8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
COFINVEST 97 LTD.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
K:\WPDOC\CORP\AMNEX\▇▇▇▇▇▇▇.2\AGREEMEN\AMDMAIN.8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
EAGLE GROWTH LTD.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
K:\WPDOC\CORP\AMNEX\▇▇▇▇▇▇▇.2\AGREEMEN\AMDMAIN.8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
▇▇▇▇▇ LTD.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
K:\WPDOC\CORP\AMNEX\▇▇▇▇▇▇▇.2\AGREEMEN\AMDMAIN.8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
hereof.
AMNEX, INC.
By:
Signature of Authorized Officer
Name of Authorized Officer
Title of Authorized Officer
(Corporate Seal)
▇▇▇▇▇ ▇▇▇▇▇▇▇ as representative of each of
BANCA NOVARA
BORDIER & CIE
EXPERTA TREUHAND AG
BARCLAYS BANK (SCHWEIZ) AG
HANS-▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇
EXPERTA TRUSTEE CO., LTD.
FINANZVERWALTUNG DES KANTONS
ZURICH
▇▇▇▇▇ ▇▇▇▇▇
I.A.A.C. INTERNATIONAL AUTOMOTIVE
ADVISORS CORP., PANAMA
INFIDAR ▇▇
▇▇▇▇▇▇▇ WULLINGER
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
K:\WPDOC\CORP\AMNEX\▇▇▇▇▇▇▇.2\AGREEMEN\AMDMAIN.8