EXHIBIT 4(b)
STOCK PURCHASE
AND LOAN AGREEMENT
THIS STOCK PURCHASE AND LOAN AGREEMENT ("the Agreement") is entered
into as of this 2nd day of September, 2002 by and between ▇▇▇ ▇▇▇▇▇▇ an
Individual ("▇▇▇▇▇▇") and ▇▇▇▇▇▇ HOLDING COMPANY, INC. a Delaware corporation,
and all of its subsidiaries and affiliated companies (collectively "▇▇▇▇▇▇" or
the "Company").
WHEREAS, ▇▇▇▇▇▇ has agreed to make a $600,000 investment in ▇▇▇▇▇▇
as provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth herein, the parties agree as follows:
Agreement
1. Loan. ▇▇▇▇▇▇ hereby agrees to loan to ▇▇▇▇▇▇ the sum of $600,000
(the "Loan"). The Loan shall be evidenced by a promissory note (the "Note") in
the principal amount of $600,000 in the form attached hereto as Exhibit A.
2. Security. All obligations of ▇▇▇▇▇▇ hereunder shall be secured by a
lien and security interest in favor of ▇▇▇▇▇▇ in and to all of the assets of
▇▇▇▇▇▇, including but not limited to fixed assets, leases, leasehold
improvements, office and production equipment, accounts, contracts, contract
rights, claims, choses in action, receivables, inventory, work in process,
equipment and intellectual property. As a condition to advancing the sum set
forth in Paragraph 1 above, ▇▇▇▇▇▇ shall execute and deliver to ▇▇▇▇▇▇ a
security agreement substantially in the form attached hereto as Exhibit B (the
"Security Agreement") and a UCC-1 financing statement in a form acceptable to
▇▇▇▇▇▇ for filing in the State of Delaware (the "Financing Statement"). This
Agreement, the Note, the Security Agreement, and the Financing Statement are
sometimes referred to collectively herein as the "Transaction Documents" and
individually as a "Transaction Document".
3. Term. The outstanding balance of the Loan shall be payable in full 4
years after the date of the Note (the "Maturity Date").
4. Common Stock of ▇▇▇▇▇▇.
4.1 As additional consideration for the loan, ▇▇▇▇▇▇ hereby agrees to
issue to ▇▇▇▇▇▇ 10,000 shares of common stock of ▇▇▇▇▇▇ (the "Shares").
4.2 The Shares issued hereunder shall be fully paid and non-assessable,
and have all of the rights and benefits of any other Shares of ▇▇▇▇▇▇ now
outstanding.
4.3 In connection with the Loan and the issuance of the Shares
hereunder, ▇▇▇▇▇▇ represents and Shares to the Company that:
(1) ▇▇▇▇▇▇ understands that (A) the Shares have not been
registered under the Securities Act, nor qualified under the securities
laws of any other jurisdiction, (B) the Shares constitute "restricted
securities" for purposes of the Securities Act, (C) the Shares cannot
be resold unless they subsequently are registered under the Securities
Act and qualified under applicable state securities laws, unless the
Company determines that exemptions from such registration and
qualification requirements are available, and (D) ▇▇▇▇▇▇ has no right
to require such registration or qualification;
(2) The Shares to be acquired by ▇▇▇▇▇▇ pursuant to this
Agreement will be acquired for ▇▇▇▇▇▇'▇ own account and not with a view
to, or intention of, distribution thereof in violation of the
Securities Act, or any applicable state securities laws, and the Shares
will not be disposed of in contravention of the Securities Act or any
applicable state securities laws;
(3) ▇▇▇▇▇▇ is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
4.4 Securities Matters. Subject to the accuracy of the representations
of ▇▇▇▇▇▇ set forth in Section 4.4 hereof, the offer, sale and issuance of the
Shares as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act.
4.5 Restrictions on Transfer of Shares. ▇▇▇▇▇▇ is advised that federal
and state securities laws govern and restrict ▇▇▇▇▇▇'▇ right to offer, sell or
otherwise dispose of any securities unless ▇▇▇▇▇▇'▇ offer, sale or other
disposition thereof is registered under the Securities Act and state securities
laws, or in the opinion of the Company's counsel, such offer, sale or other
disposition is exempt from registration or qualification thereunder. ▇▇▇▇▇▇
agrees that he will not offer, sell or otherwise dispose of any such securities
in any manner which would: (i) require the Company to file any registration
statement with the Commission (or any similar filing under state law) or to
amend or supplement any such filing or (ii) violate or cause the Company to
violate the Securities Act, the rules and regulations promulgated thereunder or
any other state or federal law. The certificates for any securities will bear
such legends as the Company deems necessary or desirable in connection with the
Securities Act or other rules, regulations or laws.
4.6 Option to Redeem Common Stock. ▇▇▇▇▇▇ shall have the option to
redeem the common stock granted to him under this Section 4 for $10.00 cash per
share at the five-year anniversary of this agreement (the "Redemption Date").
The shares may be redeemed in whole or in part. In order to redeem the shares,
▇▇▇▇▇▇ must provide written notice to ▇▇▇▇▇▇ not earlier than 90 days prior to
the Redemption Date of his intent to redeem the shares. ▇▇▇▇▇▇ will pay to
▇▇▇▇▇▇ $10.00 cash for each share redeemed within 90 days of the receipt by
▇▇▇▇▇▇ of ▇▇▇▇▇▇' written notice of intent to redeem. This redemption option
applies only to the 10,000 shares granted herein, and does not apply to any
other shares of ▇▇▇▇▇▇ common stock owned by ▇▇▇▇▇▇. This option to redeem will
expire immediately after the five-year anniversary of this Agreement.
5. Option to Convert Loan Amount to Equity.
5.1 ▇▇▇▇▇▇ shall have the right at any time the Note remains unpaid
(in whole or part), to convert the unpaid balance of the Loan or any portion
thereof to Shares at a price per Share equal to the Conversion Price on the day
the Option is exercised; provided, however, that unless there shall have
2
occurred an Event of Default, ▇▇▇▇▇▇ may not convert more than that portion of
the Loan which would result in the ownership by ▇▇▇▇▇▇ of more than 4.9% of the
outstanding common stock of ▇▇▇▇▇▇ at the time of conversion. In the event
▇▇▇▇▇▇ elects to convert the Loan, or any portion thereof into Shares, ▇▇▇▇▇▇
shall promptly issue to ▇▇▇▇▇▇ an amount of Shares equal to the principal amount
of the Loan to be converted divided by the Conversion Price. Such Shares shall
be deemed to be fully paid, non-assessable shares as of the date of this
Agreement. In the event any ▇▇▇▇▇▇ shares are registered subsequent to the
conversion of the Note pursuant to the Securities Act of 1933, as amended (the
"Securities Act") the Shares issued hereunder shall likewise be registered.
6. Representations and Warranties of ▇▇▇▇▇▇.
(a) Organization. ▇▇▇▇▇▇ is a corporation duly incorporated,
validly existing, and in good standing under the laws of the State of Delaware,
and is in good standing and qualified to do business in the State of Delaware.
(b) Corporate Power. ▇▇▇▇▇▇ has all requisite corporate power
to execute and deliver this Agreement and to carry out and perform its
obligation under the terms of this Agreement, and the person executing this
Agreement has the requisite authority to do so.
(c) Authorization. All corporate action on the part of ▇▇▇▇▇▇,
its directors and shareholders, necessary for the authorization, execution,
delivery, and performance of this Agreement, and the performance of its
respective obligations hereunder, including the issuance and delivery of the
Note, and the Shares has been taken or will be taken prior to closing. ▇▇▇▇▇▇
agrees to take all reasonably necessary corporate action to reserve or authorize
the equity securities issuable upon conversion of the Note, if applicable. The
Transaction Documents, when executed and delivered by ▇▇▇▇▇▇, shall constitute
valid and binding obligations of ▇▇▇▇▇▇ enforceable in accordance with their
terms, subject to laws of general application relating to bankruptcy,
insolvency, and the relief of debtors. Upon conversion of the Note, the equity
securities of ▇▇▇▇▇▇ will be validly issued, fully paid, and nonassessable and
free of any liens or encumbrances.
(d) Governmental Consents. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations,
or filings with, any governmental authority, required on the part of ▇▇▇▇▇▇ in
connection with the valid execution and delivery of this Agreement, the offer,
sale, or issuance of the equity securities issuable upon conversion of the Note
or the consummation of any other transaction contemplated hereby shall have been
obtained and will be effective at the closing, except for notices required or
permitted to be filed with certain state and federal securities commissions,
which notices will be filed on a timely basis.
7. Cross-Default. Any Event of Default (as such term is defined in the
Promissory Note) which occurs under any of the Transaction Documents shall
automatically be deemed an Event of Default under all of the Transaction
Documents and ▇▇▇▇▇▇ shall be entitled to exercise all or any of the rights and
remedies available to ▇▇▇▇▇▇ under the Transaction Documents in any order, at
▇▇▇▇▇▇'▇ sole discretion, after the occurrence of an Event of Default.
3
8. Senior Securities. ▇▇▇▇▇▇ agrees that so long as the Note remains
unpaid, in full or part, ▇▇▇▇▇▇ shall not issue any securities senior to the
Note without the prior written agreement of ▇▇▇▇▇▇.
9. Miscellaneous.
(a) Binding Agreement; Further Assurances; Enforceablility of
Terms. The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
third party any rights, remedies, obligations, or liabilities under or by reason
of this Agreement except as expressly provided in this Agreement. Each party
shall execute such other and further documents, and take such other and further
actions as are reasonably necessary to carry out the intents and purposes of
this Agreement and the Transaction Documents, without notice and additional
consideration. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be or become prohibited or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
of the remaining provisions of this Agreement.
(b) Governing Law; Attorneys Fees. This Agreement shall be
governed by and construed under the laws of the State of Delaware. Any action on
this agreement may be brought in Delaware. In the event either party should
initiate legal action to enforce such party's rights, or to collect damages on
account of a breach of this Agreement, the non-prevailing party shall pay to the
prevailing party all costs and attorneys fees incurred.
(c) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument
(d) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Modification; Waiver. No modification or waiver of any
provision of this Agreement, or delay in enforcing any right or remedy, or
consent to departure therefrom shall be effective unless in writing and approved
by the parties.
4
(f) Notices. All notices and other communications with respect
to this Agreement shall be in writing, mailed, telefaxed, emailed
if to ▇▇▇▇▇▇; at:
▇▇▇▇▇▇ Holding Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
if to ▇▇▇▇▇▇; at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. Definition of Terms.
"Conversion Price" shall mean the lesser of $15.00 per share or the Market Price
of ▇▇▇▇▇▇ common stock. Provided, however, that in the event ▇▇▇▇▇▇ completes an
Offering of its common stock resulting in net proceeds of at least three million
dollars in the aggregate prior to the three year anniversary of the date of this
Agreement, the Conversion Price shall be fixed and shall be equal to the Net
Offer Price of such Offering.
"Event of Default" shall be as defined under the Promissory Note attached as
Exhibit A hereto.
"Market Price" shall mean the lesser of (i) the twenty-day weighted average
trading price of ▇▇▇▇▇▇ common stock up to and including the day on which Market
Price is calculated; and (ii) the mid-point between the closing bid price and
closing offer price for ▇▇▇▇▇▇ common stock on the day Market Price is
calculated.
"Net Offer Price" shall mean the net proceeds per share to ▇▇▇▇▇▇ from the sale
or other placement of its common stock, for cash or other consideration, after
adjusting for selling commissions, underwriting fees, additional take-down fees,
selling group fees, syndication fees or any other cost associated in any way
with the sale of its common stock.
"Offering" shall mean the sale of common stock, whether registered or not, to
one or more persons, for any consideration, whether issued for cash, securities,
or for the acquisition of any assets or businesses.
"Share" shall mean a share of common stock of ▇▇▇▇▇▇ Holding Company, Inc. as
traded on the Over-the-Counter Bulletin Board under the symbol "SRHI" (or such
subsequent exchanges and/or symbols as may prevail). Any reference to Shares
shall be adjusted for subsequent splits, reverse splits, or other
recapitalizations of ▇▇▇▇▇▇ subsequent to the date of this Agreement.
5
IN WITNESS WHEREOF, the parties have executed this Loan Agreement as
of the date first written above.
▇▇▇▇▇▇ HOLDING COMPANY, INC.
By:_____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇
_____________________________
6