Page 5 of 13 Pages
EXHIBIT 1
Page 6 of 13 Pages
AMENDED AND RESTATED SERIES C REPURCHASE AND EXCHANGE AGREEMENT
Amended and Restated Series C Repurchase and Exchange Agreement dated as of
December 23, 1996 among All-Comm Media Corporation (the "Company"), Newark Sales
Corp. ("Newark") and Saleslink Ltd. ("Saleslink").
WHEREAS, the Company has issued and outstanding 2,000 shares of its Series
C Convertible Preferred Stock, par value $.01 per share (the "Series C Preferred
Stock");
WHEREAS, Newark and Saleslink are the holders of all of the issued and
outstanding shares of Series C Preferred Stock;
WHEREAS, the shares of Series C Preferred Stock are currently convertible
into 166,666 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), in accordance with the certificate of designations of the
Series C Preferred Stock;
WHEREAS the holders of the Series C Preferred Stock also hold warrants
exercisable for 3,000,000 shares of Common Stock (the "Series C Warrants");
WHEREAS, the Company has filed a registration statement with the Securities
and Exchange Commission for a proposed underwritten public offering (the
"Offering") of shares of Common Stock, and for the delayed offering of shares of
Common Stock by certain delayed selling securityholders;
WHEREAS, the lead underwriter for the Offering has advised the Company that
the existence of the current number of outstanding options, warrants or other
rights convertible or exercisable for shares of the Common Stock could be
detrimental to the Offering and to secondary trading in the Common Stock
following consummation of the Offering;
WHEREAS, the holders of Series C Preferred Stock are willing to enter into
this Agreement in order to induce the Company to proceed with the Offering and
in order to obtain the benefits of this Agreement;
WHEREAS, the parties hereto are parties to a Series C Repurchase and
Exchange Agreement dated as of November 20, 1996 (the "Old Agreement"); and
WHEREAS, the parties wish to amend and restate the Old Agreement to change
the date of the consummation of the transactions contemplated thereby from
immediately prior to the
Page 7 of 13 Pages
Offering to December 23, 1996;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, and receipt and sufficiency which are hereby
acknowledged, the parties hereto agree as follows:
1. Repurchase of Series C Preferred Stock. On and as of the date hereof,
each of the undersigned holders of Series C Preferred Stock agrees to sell, and
the Company agrees to repurchase, all 2,000 of the outstanding shares of Series
C Preferred Stock for an aggregate of $1,000,000 (the "Repurchase Price"), to be
paid pro rata to such holders based on the number of shares of Series C
Preferred Stock held. Payment of the Repurchase Price shall be made in the form
of a promissory note of the Company, substantially in the form of Exhibit A
hereto.
2. Conversion of Warrants. Simultaneously with the repurchase of the Series
C Preferred Stock as set forth in paragraph 1, the Series C Warrants shall be
cancelled and shall cease to be outstanding and will be exchanged for an
aggregate of 600,000 shares of Common Stock, to be issued pro rata based on the
number of Series C Warrants held. The holders of the shares of Common Stock for
which the Series C Warrants are exchanged shall have the same registration
rights as such holders had under the agreement dated as of September 10, 1996
between such holders and the Company, with respect to shares of Common Stock for
which the Series C Warrants were exercisable.
3. Securities Law Matters. Each of the undersigned holders of Series C
Preferred Stock severally acknowledges and agrees that: (a) the shares of Common
Stock to be issued to it upon exchange of the Series C Warrants have not been
registered under the Securities Act of 1933, as amended (the "Securities Act");
(b) such shares may not be freely resold or transferred absent registration
under the Securities Act or an exemption therefrom; (c) it is acquiring such
shares for its own account for investment purposes only and not with a view
towards the resale or distribution thereof; (d) it may be required to hold such
shares for an indefinite period; (e) certificates representing such shares may
bear restrictive legends and the Company may instruct its transfer agent to
place stop transfer orders with respect thereto; (f) it is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D under the Securities
Act; (g) it is aware that the Company is issuing such Common Stock in
transactions exempt from the registration requirements of the Securities Act
pursuant to Regulation D or other exemptions from registration; and (h) it is
not an "affiliate" of Broad Capital Associates, Inc. within the meaning of the
Securities Act.
4. Miscellaneous. This Agreement may not be modified
Page 8 of 13 Pages
except in a writing signed by or on behalf of all of the parties hereto. This
Agreement constitutes the entire agreement of the parties with respect to the
repurchase of the outstanding shares of Series C Preferred Stock and the
exchange of the Series C Warrants, and supersedes the Old Agreement. This
Agreement may be signed in one or more counterparts, all of which shall
constitute a single original.
IN WITNESS WHEREOF, each of the undersigned has duly caused this Agreement
to be signed on its behalf as of this 23rd day of December, 1996.
All-Comm Media Corporation
By:
Name:
Title:
Newark Sales Corp.
By:
Name:
Title:
Saleslink Ltd.
By:
Name:
Title:
Page 9 of 13 Pages
Exhibit A
[Form of Promissory Note]
PROMISSORY NOTE
$_______________ December 23, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, All-Comm Media Corporation, a Nevada corporation (the
"Company"), hereby promises to pay to __________________ (the "Payee"), the
principal sum of FIVE HUNDRED THOUSAND ($500,000.00) Dollars (or such lesser
amount as shall equal the aggregate unpaid amount of the Repurchase Price owed
to Payee under the Amended and Restated Series C Repurchase and Exchange
Agreement (the "Repurchase Agreement") dated as of the date hereof), in lawful
money of the United States of America and in immediately available funds, on
demand at any time from and after the date the Offering is consummated, but in
no event later than June 7, 1998 (the "Maturity Date").
ARTICLE I
DEFINITIONS
Capitalized terms used but not defined herein have the meanings given to
such terms in the Repurchase Agreement. In addition, when used herein, the
following terms have the following meanings:
"Business Day" means any day on which commercial banks are not authorized
or required to close in New York City, New York or in Los Angeles, California.
"Dollars" and "$" shall mean lawful money of the United States of America.
ARTICLE II
PRINCIPAL AND INTEREST
2.01 Repayment of Principal. The Company hereby promises to pay to the
Payee the entire unpaid principal amount of this Note, together with accrued
interest thereon, on demand at any time from and after the date of consummation
of the Offering (or any other underwritten public offering of Common Stock by
the Company), but in no event later than the Maturity Date; provided that, in
the case of payment on demand, Payee has given the Company at least ten (10)
Business Days' prior written
Exhibit A to Repurchase
Agreement, Page 2
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notice of its intention to make such demand, which notice shall specify the date
designated for payment (which shall be a Business Day). Simultaneously with the
payment in full of this Note, Payee shall surrender this Note to the Company for
cancellation.
2.02 Interest. The Company hereby promises to pay to Payee interest on the
unpaid principal amount of the Note for the period from and including the date
hereof to but excluding the date the principal amount of this Note shall be paid
in full, at a rate per annum equal to eight percent (8%); provided that in no
event shall the amount paid or agreed to be paid to Payee for the use,
forbearance, or detention of the indebtedness evidenced by this Note exceed the
maximum amount permitted by law. Interest on this Note shall be computed on the
basis of a year of 365 or 366 days (as the case may be) and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which interest is payable. Notwithstanding the foregoing, the Company hereby
promises to pay to Payee interest ("Default Interest") at a rate per annum equal
to ten percent (10%) on any principal and any other amount payable by the
Company hereunder that shall not be paid in full when due (whether on demand or
otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest (including Default
Interest, if any) shall be payable at the time of payment or prepayment of any
principal of this Note (but only on the principal amount so paid or prepaid).
ARTICLE III
PAYMENTS AND PREPAYMENTS
3.01 Payments. Except to the extent otherwise provided herein, all payments
of principal, interest and other amounts to be made by the Company under this
Note, shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, by wire transfer to an account designated by
Payee in the notice required by Section 2.01 not later than 1:00 p.m. (New York
time) on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
3.02 Optional Prepayments. The Company shall have the right to
prepay, without premium or penalty, the unpaid principal amount of this Note, in
whole or in part, at any time or from time to time; provided that (a) the
Company shall give Payee at least ten (10) Business Days' prior written notice
thereof, which notice shall specify the amount to be prepaid and the date of
Exhibit A to Repurchase
Agreement, Page 3
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prepayment (which shall be a Business Day and upon which date the amount to be
prepaid shall become due and payable hereunder) and (b) any such prepayment
shall be in a minimum amount of $100,000 or a larger multiple of $50,000.
ARTICLE IV
MISCELLANEOUS
4.01 Subordination. This Note shall be a general obligation of the Company
and is subordinated to any and all obligations of the Company to any bank or
other financial institution, regardless of whether such obligations presently
exist or are subsequently incurred.
4.02 Waiver. (a) No failure on the part of Payee to exercise and no delay
in exercising, and no course of dealing with respect to, any right, power or
privilege under this Note or the Repurchase Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Note or the Repurchase Agreement preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(b) The Company hereby waives demand, presentment, protest, notice of
protest, notice of dishonor, and all other notices or demand of any kind or
nature with respect to this Note (other than as otherwise expressly provided
herein).
4.03 Notices. All notices, requests and other communications provided for
herein (including, without limitation, any modifications of, or waivers,
requests or consents under, this Note) shall be given or made in writing
(including, without limitation, by telecopy) by the close of business on the day
the notice is given, delivered to the intended recipient at the address
specified below or at such other address as shall be designated by such
recipient in a notice to the Company or Payee, as the case may be. Except as
otherwise provided herein, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
If to Payee:
__________________________________
__________________________________
__________________________________
Exhibit A to Repurchase
Agreement, Page 4
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If to the Company:
All-Comm Media Corporation
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
4.04 Costs of Collection. The Company agrees to pay or reimburse the Payee
for all reasonable out-of-pocket costs and expenses of Payee (including, without
limitation, the reasonable fees and expenses of legal counsel) in connection
with (i) any default under this Note and any enforcement or collection
proceedings resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) any bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
4.04.
4.05 Successors and Assigns. This Note and the Repurchase Agreement shall
be binding upon and inure to the benefit of the Company and Payee and their
respective successors and permitted assigns.
4.06 Assignments. The Company may not assign or transfer this Note or any
of its obligations hereunder without the prior written consent of Payee. Payee
may assign or transfer this Note or any of its rights hereunder at any time.
4.07 Amendment, Modification, Waiver. The terms of this Note may not be
waived, altered or amended except by an instrument in writing duly executed by
the Company and Payee. Any such amendment or waiver shall be binding upon the
Company and Payee, and their respective successors and permitted assigns.
4.08 Governing Law; Submission to Jurisdiction. This Note and the
Repurchase Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York (without giving effect to its principles of
conflicts of law). Each of the Company and Payee hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of the Supreme Court of the State of New York sitting
in New York County (including its Appellate Division), and of any other
appellate court in the State of New York, for the purposes of all legal
proceedings arising out of or
Exhibit A to Repurchase
Agreement, Page 5
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relating to this Note or the transactions contemplated hereby. Each of the
Company and the Payee hereby irrevocably waives, to the fullest extent permitted
by applicable law, any objection that it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
4.09 Waiver of Jury Trial. EACH OF THE COMPANY AND THE PAYEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
ALL-COMM MEDIA CORPORATION
By________________________
Name:
Title:
