EXHIBIT 1
Execution Copy
INTEK DIVERSIFIED CORPORATION
PREFERRED STOCK PURCHASE AGREEMENT
PREFERRED STOCK PURCHASE AGREEMENT, dated as of December 29, 1997,
between INTEK DIVERSIFIED CORPORATION, a Delaware corporation having an office
at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"),
and SECURICOR COMMUNICATIONS LIMITED, a company incorporated under the laws of
England and Wales having an office at 00 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX0
0XX, Xxxxxxx (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company desires to sell an aggregate of 12,408 shares (the
"Shares") of convertible preferred stock, $.001 par value (the "Preferred
Stock") which will, when authorized, have a liquidation preference of $1,000 per
share and the designations, powers, preferences, rights, qualifications,
limitations and restrictions substantially as those set forth in the Certificate
of Designation annexed hereto as Exhibit A (the "Designation") for an aggregate
of $12,408,000 to the Investor, who is an "accredited investor" within the
meaning of Rule 501(a) adopted under the Securities Act of 1933 (the " 1933
Act"); and
WHEREAS, the Investor wishes, pursuant to the terms and conditions
hereinafter set forth, to purchase the Preferred Stock referred to in the
proceeding paragraph.
NOW THEREFORE, in consideration of the premises, and the respective
representations and warranties hereinafter set forth, the Company and the
Investor agree as follows:
1. SUBSCRIPTION.
------------
(a) The Investor, intending to be legally bound, hereby irrevocably
subscribes for and agrees to purchase the Preferred Stock, subject to the
conditions set forth in paragraph 1(b), below.
(b) The obligations of Purchaser to purchase the Preferred Stock is
conditioned upon:
(i) the approval of the Company's shareholders of
an amendment to the Company's Certificate of
Incorporation to permit the issuance of preferred
stock; and
(ii) the amendment described in Section 5.2 shall have
been approved by the Intek shareholders by April 30,
1998.
2. PURCHASE AND CLOSING.
--------------------
2.1 At the Closing (as hereinafter defined), the Company shall issue
and sell to the Investor and the Investor shall purchase the Preferred Stock
from the Company.
2.2 The aggregate purchase price to be paid by the Investor to the
Company for the Preferred Stock (the "Purchase Price") at the Closing shall be
$12,408,000.
2.3 The closing of the purchase and sale of the Preferred Stock (the
"Closing") shall take place at 1:00 P.M. New York time on the business day
immediately following the date the Company files an amendment to its certificate
of incorporation permitting the issuance of preferred stock and the Designation.
The Closing shall take place at the offices of [INTEK] or at such other time and
place as the Company and Investor agree.
2.4 At Closing the Company will deliver the following to the
Investor:
(a) a certificate, in due and proper form, representing the
Preferred Stock purchased upon which a legend substantially in
the following form will be endorsed:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK INTO WHICH THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE
SHARES UNDER THE SECURITIES ACT OF 1933 OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE"; and
(b) an opinion of Xxxxxx & Xxxxxxxxx LLP addressed to the Company
which indicates that the Investor may rely upon it as to the
matters set forth in Sections 6.1, 6.2, 6.3, 6.5, 6.6, 6.7 and
6.8 of this Agreement, without reference to any pre-conditions
referred to therein.
2.5 At Closing, the Investor shall deliver the Purchase Price to
the Company, in immediately available funds by wire transfer
to a bank in the United States designated by the Company.
3. INVESTOR REPRESENTATIONS AND WARRANTIES.
---------------------------------------
The Investor hereby acknowledges, represents and warrants to (which
representations and will be true and correct as of the date of the Closing as if
the Agreement were made on the date of Closing), and agrees with, the Company as
follows:
2
3.1 The Investor is acquiring the Preferred Stock for its own account
as principal, for investment purposes only, and not with a view to, or for,
resale, distribution or fractionalization thereof, in whole or in part;
3.2 The Investor acknowledges its understanding that the offering and
sale of the Preferred Stock is intended to be exempt from registration under the
1933 Act by virtue of Section 4(2) of the 1933 Act and the provisions of
Regulation D thereunder. In furtherance thereof, the Investor represents and
warrants to and agrees with the Company as follows:
(a) the Investor has the financial ability to bear the economic
risk of its investment, has adequate means for providing for
its current needs and has no need for liquidity with respect
to its investment in the Company;
(b) the Investor is a corporation, trust, estate benefit plan,
partnership other entity, which comes within a category of
"accredited investor" as that term is defined in Rule 501(a)
of Regulation D under the 1933 Act (17 C.F.R. 230.501(a));
3.3 The Investor:
(a) has relied on all of the Company's reports and filings since
January 1, 1996 and the representations of the Company set
forth in the Second Amended and Restated Loan Agreement
between the Company, as Borrower and Investor, as Lender of
even date herewith (the "Documents") under the United States
Securities Exchange Act of 1934, as amended (the "1934 Act")
and any other documents which may have been requested and
has carefully read the Documents and understands and has
evaluated the risks of a purchase of Preferred Stock, and
has relied solely (except as indicated in subsections (b)
and (c) below) on the information contained in the
Documents;
(b) has been provided an opportunity to obtain additional
information concerning the Company and all other information
to the extent the Company possesses such information or can
acquire it without unreasonable effort or expense;
(c) has been given the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions
of this investment, and has been given the opportunity to
obtain such additional information necessary to verify the
accuracy of the information contained in the Documents or that
which was otherwise provided in order for the Investor to
evaluate the merits and risks of purchase of the Preferred
Stock to the extent the Company possesses such information or
can acquire it without unreasonable efforts or expense, and
has not been furnished any other offering literature or
prospectus except as mentioned herein;
3
(d) has not relied on any oral representation or oral information
in connection with the offering of the Preferred Stock which
is not contained in the Documents; and
(e) has determined that the Preferred Stock is a suitable
investment and that at the time of Closing the Investor could
bear a complete loss of its investment;
3.4 The Investor represents, warrants and agrees that it will not sell
or otherwise transfer the Preferred Stock or the shares of the Company's common
stock into which the Preferred Stock may be converted unless registered under
the 1933 Act (which registration may be pursuant to that Registration Rights
Agreement dated December 3, 1996 or otherwise) or in reliance upon an exemption
therefrom, and fully understands and agrees that it must bear the economic risk
of its purchase for an indefinite period of time because, among other reasons,
the Preferred Stock or underlying securities have not been registered under the
1933 Act or under the securities laws of certain states and, therefore, cannot
be resold, pledged, assigned or otherwise disposed of unless they are
subsequently registered under the 1933 Act and under the applicable securities
laws of such states or an exemption from such registration is available. The
Investor also understands that except for the Company's independent obligation
to remain current in its filings under the 1934 Act, as amended, the Company is
under no obligation to register the Preferred Stock on its behalf or to assist
the Investor in complying with any exemption from registration under the 1933
Act. The Investor further understands that sales or transfers of the Preferred
Stock or underlying securities are restricted by the provisions of state
securities laws;
3.5 The person signing this Preferred Stock Purchase Agreement on
behalf of such entity has been duly authorized by such entity to do so;
3.6 No representation or warranties have been made to the Investor by
the Company, or any officer, employee, agent, affiliate or subsidiary of the
Company, other than the representations of the Company herein;
3.7 The execution and delivery by the Investor of, and the performance
by the Investor of its obligations under this Agreement will not contravene any
provision of applicable law or the charter documents of the Investor or any
agreement or other instrument binding upon the Investor, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction over the
Investor, and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by the
Investor of its obligations under such Agreements in accordance with their
respective terms;
3.8 The Investor has been duly organized, is validly existing and is in
good standing under the laws of England and Wales. The Investor has full
corporate power and authority to enter into this Agreement and this Agreement
has been duly and validly authorized, executed and delivered by the Company and
are valid and binding obligations of the Investor, enforceable against the
Investor in accordance with their respective terms, except as such enforcement
may be limited by the laws effecting creditors rights, generally and general
equitable principles.
4
3.9 The foregoing representations, warranties and agreements shall
survive the Closing.
4. INVESTOR AWARENESS.
------------------
The Investor acknowledges and is aware that:
4.1 No Federal or state agency has passed on the Preferred Stock or
made any finding or determination as to the fairness of this investment.
4.2 There are substantial restrictions on transferability of the
Preferred Stock.
4.3 The Company is a defendant in an action entitled Xxxxx x. Xxxxxxxxx
et al in the United States District Court, Northern District of Ohio.
4.4 The foregoing acknowledgments shall survive the Closing.
5. APPROVAL OF AMENDMENT AND DESIGNATION.
-------------------------------------
5.1 As part of its 1998 Annual Meeting of Stockholders to be held no
later than April 30, 1998, the Company will propose to amend its certificate of
incorporation to, among other things, permit its board of directors to issue
shares of preferred stock in one or more series, including the series which will
include the Preferred Stock.
5.2 Pursuant to Section 218(c) of the Delaware General Corporation Law,
the Investor will agree with Xxxxxx Xxxxxx, the Company's President, to vote
shares of the Company's common stock owned by it for such amendment consistent
with the resolutions of the directors of the Company dated November 20, 1997.
5.3 Investor agrees to cause its directors of the Company that are
employed directly or indirectly by Investor to abstain from voting on matters
concerning the authorization and issuance of the Preferred Stock to the
Investor.
6. COMPANY REPRESENTATIONS AND WARRANTIES.
--------------------------------------
The Company hereby acknowledges, represents and warrants to, and agrees
with the Investor (which representations and will be true and correct as of the
date of the Closing as if the Agreement were made on the date of Closing) as
follows:
6.1 The Company has been duly organized, is validly existing and is in
good standing under the laws of the State of Delaware. The Company has full
corporate power and authority to enter into this Agreement and perform the
obligations hereunder. This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as such enforcement may be limited by the United States
Bankruptcy Code, laws effecting creditors rights, generally and general
equitable principles.
5
6.2 Assuming the accuracy of the representations and warranties of the
Investor, the offering and sale of the Preferred Stock will be exempt from the
registration requirements of the 1933 Act and all applicable State Securities
Laws.
6.3 The execution and delivery by the Company of, and the performance
by the Company of its obligations under this Agreement in accordance with the
terms of this Agreement will not (a) contravene any provision of applicable law
or the charter documents or by-laws of the Company or any agreement or other
instrument binding upon the Company, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company, or; (b)
give any third party rights to acquire capital stock. No filing (except for a
Form D and For 8-K following the closing), notice, consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement in accordance with the terms of this Agreement.
6.4 The Documents did not, and through the date of the Closing will
not, contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made and at the time of their filing, not misleading.
6.5 All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
free of preemptive or similar rights. The Company does not have any class of
authorized stock other than Common Stock. Following the amendment to the
Company's certificate of incorporation and approval of the Designation, the
Preferred Stock will have been duly authorized and, when issued and delivered as
provided by this Agreement, will be validly issued and fully paid and
non-assessable, and the Preferred Stock is not subject to any preemptive or
similar rights. In addition, the shares of Common Stock issuable upon the
conversion of the Preferred Stock, when issued as provided in the Designation
will be validly issued and fully paid and non-assessable, and such shares are
not subject to any preemptive or similar rights. Except for the approval of the
Company's shareholders, the issuance of the Preferred Stock in accordance with
the terms hereof has been duly authorized by all requisite action on the part of
the Company.
6.6 The Company is not in violation of its charter or bylaws and is not
in default in the performance of any bond, debenture, note or any other evidence
of indebtedness or any indenture, mortgage, deed of trust, license, contract,
lease or other instrument to which the Company is a party or by which it is
bound, or to which any of the property or assets of the Company is subject,
except such as have been waived or which would not have, singly or in the
aggregate, a material adverse effect on the Company, taken as a whole.
6
6.7 Except as set forth in the Documents, there is no material
litigation or governmental proceeding pending, or to the knowledge of the
Company, threatened against, or involving the property or the business of the
Company, or, to the best knowledge of the Company which would adversely affect
the condition (financial or otherwise), business, prospects or results of
operations of the Company, taken as a whole.
6.8 The consolidated financial statements set forth in the Documents
fairly present the financial position and the results of operations of the
Company, at the dates and periods therein specified. Such financial statements
have been prepared in accordance with U.S. generally accepted accounting
principles applied on a consistent basis throughout the respective periods
involved and are complete and accurate and are in accordance with the books and
records of the Company.
6.9 (a) The authorized capital stock of Purchaser consists of
60,000,000 shares of Purchaser Common Stock. As of the date hereof, there are
41,932,514 shares of the Purchaser Common Stock issued and outstanding and
465,582 shares of the Purchaser Common Stock are held by Purchaser as treasury
stock. All of the issued and outstanding shares of Common Stock were duly
authorized for issuance and are validly issued, fully paid and non-assessable.
(b) Except as set forth on Schedule 6.9 hereto, there is no
existing option, warrant, call, right, commitment or other agreement of any
character to which the Company is a party requiring, and there are no securities
of the Company outstanding which upon conversion or exchange would require the
issuance, sale or transfer of any additional shares of capital stock or other
equity securities of the Company or other securities convertible into,
exchangeable for or evidencing the right to subscribe for or purchase shares of
capital stock or other equity securities of the Company. The Company is not a
party to any voting trust or other voting agreement with respect to any of the
shares of the Company Common Stock or to any agreement relating to the issuance,
sale, redemption, transfer or other disposition of the capital stock of the
Company, except for matters arising after the date hereof.
(c) The consummation of the transaction contemplated hereby
will not (i) conflict with, violate, result in the breach or termination of, or
constitute a default under any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which Purchase or any of its
Subsidiaries or any of its properties or assets is bound; (ii) violate any
statue, rule, regulation, order or decree of any Governmental Body by which
Purchase or any of its Subsidiaries is bound.
6.10 The Company at all times will keep sufficient shares of its Common
Stock available for issuance upon the conversion of the Preferred Stock.
6.11 The foregoing representations, warranties and agreements shall
survive the Closing.
7
7. MISCELLANEOUS.
-------------
7.1 Complete Agreement; Modification of Agreement . The Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof and may not be modified, altered or amended except by an
agreement in writing signed by Company and Investor.
7.2 Waiver Of Jury Trial . THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE
LOAN DOCUMENTS.
7.3 Severability . Wherever 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 prohibited by 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 or the remaining provisions of this Agreement.
7.4 Parties . This Agreement shall be binding upon, and inure to the
benefit of, the successors of Company and Investor.
7.5 Governing Law . EXCEPT AS TO MATTERS OF INTERNAL CORPORATE LAW,
WHICH SHALL BE GOVERNED BY THE GENERAL CORPORATION LAW OF DELAWARE, IN ALL OTHER
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. INVESTOR AND COMPANY AGREE TO SUBMIT TO PERSONAL
JURISDICTION AND TO WAIVE ANY OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK,
STATE OF NEW YORK. SERVICE OF PROCESS ON COMPANY OR INVESTOR IN ANY ACTION
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE EFFECTIVE IF MAILED TO
SUCH PARTY AT THE ADDRESS LISTED IN SECTION 7.6 HEREOF.
7.6 Notices . Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by another, or whenever any of the parties desires to give or serve upon
another any communication with respect to this Agreement, each such notice,
demand, request, consent, approval, declaration or other communication shall be
in writing and either shall be delivered in person with receipt acknowledged or
by registered or certified mail, return receipt requested, postage prepaid, or
telecopied and confirmed by telecopy answerback addressed as follows:
8
(a) If to Investor at:
00 Xxxxxxxxxx Xxxx
Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Attention: Xxxxx Xxxxxxxxx, LLB
Telecopy No. (0000) 000 0000
With copies to:
Weil, Gotshal & Xxxxxx LLP
00 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopy No. (0000) 000 0000
(b) If to Company at:
Intek Diversified Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
With copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
9
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback or
seven (7) Business Days after the same shall have been deposited (i) in the
United States mail (in the case of notice being given by Company or any other
Person in the United States) or (ii) in the United Kingdom mail (in the case of
notice being given by Investor or any other Person located in the United
Kingdom). Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
7.7 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall, collectively and separately,
constitute one agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first written above.
INTEK DIVERSIFIED CORPORATION
By:_______________________________
Name:
Title:
SECURICOR COMMUNICATIONS LIMITED
By:_______________________________
Name:
Title:
10
The undersigned hereby guarantees to Company the performance by
Investor of all of its obligations under this Agreement.
SECURITY SERVICES PLC
By:_______________________________
Name:
Title:
Date:
-------------------------------------------------
Pursuant to Section 218(c) of the Delaware General Corporation Law, the
undersigned shareholders agree to vote (or give proxy's to vote) shares of Intek
Diversified Corporation's (the "Company") common stock owned by them on the
record date for the Company's next annual meeting as directed by the independent
directors of the Company on matters relating to amendments to the Company's
certificate of incorporation and the issuance of Preferred Stock consistent with
the resolutions of the Company's board of directors dated November 20, 1997.
Date:_____________________ ________________________________
Xxxxxx Xxxxxx
Date:_____________________ SECURICOR COMMUNICATIONS LIMITED
By:______________________________
11
Schedule 6.9
Outstanding Options, Warrants and Convertible Securities
12
