EXHIBIT 10.79
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of August 17, 2006, among SEDONA
CORPORATION, a Pennsylvania corporation (THE "COMPANY"), and OAK HARBOR
INVESTMENT PROPERTIES, L.L.C., (HEREINAFTER REFERRED TO AS "OAK HARBOR").
WHEREAS, an Independent Committee of the Board of Directors of Sedona met
and reviewed the terms of a proposed refinancing of certain of the Company's
obligations to Oak Harbor (the "Refinancing") and has deemed it to be in the
best interests of the Company; and
WHEREAS, the Board of Directors has reviewed the findings of the
Independent Committee and has also deemed that the Refinancing is in the best
interests of the Company; and
WHEREAS, in connection with and in furtherance of the Refinancing, the
existing obligations of the Company to Oak Harbor, evidenced by various
promissory notes, will be exchanged for a single promissory note in the
principal amount of $1,040,402.22 (the "New Oak Harbor Note"); and
WHEREAS, the obligations of the New Oak Harbor Note will be secured by a
first priority security interest in certain assets of the Company;
NOW THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, receipt of which is acknowledged, the
parties hereto agree as follows:
ARTICLE I
EXCHANGE OF THE NOTES
1.1. EXCHANGE OF NOTES. The Company and Oak Harbor hereby agree to
exchange the notes listed on Exhibit A (the "Old Oak Harbor Notes") in the
aggregate principal amount of the One Million ($1,000,000) Dollars for the New
Oak Harbor Note, substantially in the form attached hereto as Exhibit B (the
"Exchange"). The New Oak Harbor Note includes in the aggregate principal amount
all of the accrued interest in the Old Oak Harbor Notes in the amount of Forty
Thousand Four Hundred Two 22/100 Dollars ($40,402.22).
1.2. CLOSING OF EXCHANGE. Upon the signature of this Agreement, Oak
Harbor shall surrender the Old Oak Harbor Notes to the Company for cancellation,
and the Company shall issue the New Oak Harbor Note to Oak Harbor.
ARTICLE II
CONDITIONS TO EXCHANGE
2. CONDITIONS TO EXCHANGE. Oak Harbor's obligation to surrender the
Old Oak Harbor Notes and the Company's obligation to issue the New Oak Harbor
Note are subject to the fulfillment by the Company and Oak Harbor of the
following conditions:
2.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company and Oak Harbor contained in Article 3 shall have been correct
when made and shall be correct at the time of the Exchange.
2.2 COMPLIANCE WITH SECURITY LAWS. The New Oak Harbor Note shall have
complied with all applicable requirements of federal and state securities laws.
2.3 NO ACTIONS PENDING. There shall be no suit, action, investigation,
inquiry or other proceeding by any governmental body or any other person or any
other legal or administrative proceeding pending or threatened which seeks to
enjoin or otherwise prevent the consummation of, or to recover any damages or
obtain relief as a result of the Exchange, any transaction contemplated by this
Agreement or is otherwise related to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
3.1.1. ORGANIZATION. The Company (a) has been duly incorporated and is
validly existing under the laws of the State of Pennsylvania, and (b) has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
3.1.2. AUTHORIZATION. The Company has the corporate power and
authority and the full legal right to make, deliver and perform its obligations
under this Agreement, to issue and exchange the notes and otherwise carry out
the transactions contemplated hereby and has taken all necessary corporate
action to authorize the transactions contemplated hereby. This Agreement has
been duly authorized, executed and delivered by the Company; and is the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms.
3.1.3. GOVERNMENTAL CONSENTS, ETC. Except for filings with the
Securities and Exchange Commission in the ordinary course of business, no
consent, approval or authorization of, or declaration or filing with any
governmental authority is required in connection with the execution, and
delivery of this Agreement, the performance of this Agreement, or the issuance,
exchange and delivery of the New Oak Harbor Note.
3.1.4. COMPLIANCE WITH SECURITIES LAWS. Neither the Company nor anyone
acting on its behalf has taken, or will take any action which would subject the
issuance and exchange of the New Oak Harbor Note to the registration and
prospectus delivery provisions of the Securities Act of 1933, as amended.
3.2. REPRESENTATIONS AND WARRANTIES OF OAK HARBOR. Oak Harbor
represents and warrants as follows:
3.2.1 ORGANIZATION. Oak Harbor (a) has been duly incorporated and is
validly existing under the laws its state of incorporation, and (b) has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.
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3.2.2 AUTHORIZATION. Oak Harbor has the corporate power and authority
and the full legal right to make, deliver and perform its obligations under this
Agreement, to surrender and exchange the notes and otherwise carry out the
transactions contemplated hereby and has taken all necessary corporate action to
authorize the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by Oak Harbor; and is the legal, valid and
binding obligation of Oak Harbor, enforceable against it in accordance with its
terms.
3.2.3 OWNERSHIP OF OLD OAK HARBOR NOTES. Oak Harbor owns all of the
Old Oak Harbor Notes set forth on Exhibit A free and clear of any liens and
encumbrances. Without limiting the foregoing, except for Oak Harbor's
obligations under this Agreement, Oak Harbor has sole power of disposition with
respect to the Old Oak Harbor Notes, with no restrictions on its rights of
disposition pertaining thereto and no person or entity other than Oak Harbor has
any right to direct or approve the disposition of the Old Oak Harbor Notes.
3.2.4 INVESTMENT INTENT. Oak Harbor represents that it is acquiring
the New Oak Harbor Note for its own account for investment and not with a view
to or for sale in connection with any distribution thereof, except for such
distributions and dispositions which are effected in compliance with the
Securities Act and all applicable state securities and "blue sky" laws. Oak
Harbor acknowledges that the New Oak Harbor Note has not been registered under
the Securities Act and may be resold (which resale is not now contemplated) only
if registered pursuant to the provisions of such Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such exemption is required by law.
ARTICLE IV
MISCELLANEOUS
4.1 MISCELLANEOUS. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, whether so expressed or not, and, in particular, shall inure
to the benefit of and be enforceable by any holder or holders of the New Oak
Harbor Note at that time. This Agreement, embodies the entire agreement and
understandings relating to the subject matter hereof. This Agreement and the New
Oak Harbor Note shall be construed and enforced in accordance with and governed
by the law of the State of Louisiana. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective representatives thereunto duly authorized as
of the day and year first written above.
SEDONA CORPORATION
By:
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Name: Xxxxx X. Xxxxxx
Title: President and CEO
OAK HARBOR INVESTMENT PROPERTIES, L.L.C.
By:
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EXHIBIT A
NOTES TO BE SURRENDERED
1. PROMISSORY NOTE DATED MARCH 13, 2003 IN THE PRINCIPAL AMOUNT OF $400,000.00
FROM SEDONA TO OAK HARBOR.
2. PROMISSORY NOTE DATED JANUARY 13, 2003 IN THE PRINCIPAL AMOUNT OF
$600,000.00 FROM SEDONA TO OAK HARBOR.
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EXHIBIT B
FORM OF NOTE
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