NOTE CONVERSION AGREEMENT
This
AGREEMENT (this “Agreement”),
dated
as of March 26, 2008, is entered into by and between Conversion Services
International, Inc., a Delaware corporation with an address at 000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxxxxx, XX 00000 (“the
Company”),
and
TAG Virgin Islands, Inc., with an address at The Tunick Building, 0000 Xxxxxxx
Xxxx, Xxxxx 000, Xx. Xxxxxx, XXXX 00000 as agent (the “Agent”)
for
the “Noteholders” as defined herein.
RECITALS
Whereas,
the Company has issued a note (the “Note”) in the name of Hare & Co, as
nominee, dated as of June 7, 2004, originally in the principal amount of
$2,000,000 and currently in the principal amount of $1,650,000, a copy of which
is appended hereto; and
Whereas,
certain beneficial holders (hereinafter referred to collectively as the
“Noteholders”)
in the
aggregate amount of $600,000 of the principal of the Note have agreed to convert
their portion of the Note (the “Noteholders’
Portion”)
into
the number of shares (the “Shares”) of the Company’s common stock, par value
$0.001 per share, (the “Common Stock”) and warrants in the form appended hereto
as Exhibit
A
(the
“Warrants” collectively with the Shares the “Securities”) to purchase Common
Stock in accordance with the provisions of Section
2
below
and the Company agrees to such conversion, all on the terms and conditions
set
forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Recitals.
The
recitals are hereby incorporated herein and made a part hereof.
2. Conversion
of the Noteholders’ Portion
of the Note and
Issuance of the Securities.
The
Noteholders herewith convert the Noteholders’ Portion into an aggregate of
4,615,385 Shares and warrants to purchase an aggregate of 4,615,385 shares
of
Common Stocks. The
Shares are to be issued in DTC form in the name of Hare & Co.
The
Company will issue 12 warrants (collectively the “Warrants” and collectively
with the Shares the “Securities”), all in the name of Hare & Co., in the
following denominations: eight issuable for 384,615 shares, one issuable for
576,924 shares, one issuable for 500,000 shares, one issuable for 269,232 shares
and one issuable for 192,309 shares. The exercise price of the Warrants is
$0.143 per share. The Noteholders will deliver the Noteholders’ Portion to the
Company against which the Company will issue and deliver the Securities to
the
Noteholders in accordance with instructions from the Agent.
3. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Agent and the Noteholders
that:
3.1
Organization;
Good Standing; Qualification and Corporate Power.
(a)
The
Company and each of its subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to carry
on
its business as now conducted and as proposed to be conducted. The Company
and
each of its subsidiaries is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure so to qualify would have
a
material adverse effect on its business or properties. True and correct copies
of the Company Certificate of Incorporation, as amended (the "Certificate
of Incorporation")
and
Bylaws have been provided to the Noteholders or made available via the SEC
XXXXX
website.
(b)
The
Company has all requisite legal and corporate power and authority to execute
and
deliver this Agreement, to issue the Shares and the Warrants and to carry out
and perform its obligations under the terms of this Agreement and to consummate
the transactions contemplated hereby and thereby. All necessary corporate action
has been taken by the Company with respect to the execution, delivery and
performance by the Company of this Agreement and the consummation of the
transactions contemplated hereby and thereby. The Shares, when issued
in
accordance with the terms of the Agreement,
will be
legally issued, fully paid and non assessable and each Noteholder will own
the
Shares purchased by such Noteholder, free and clear of all liens and
encumbrances. The Warrants, when issued in accordance with the terms of this
Agreement, will constitute the legally binding obligation of the Company in
accordance with their terms.
3.2
Capitalization
and Voting Rights. The Company’s authorized capital consists of:
(a)
Common Stock. 200,000,000 shares of Common Stock, of which 110,171,558 shares
were issued and outstanding as of the date hereof. The Common Stock is currently
accepted for trading on the American Stock Exchange.
(b)
Preferred Stock. 20,000,000 shares of preferred stock (the "Preferred
Stock"),
of
which, as of the date hereof, an aggregate of 39,000 shares are issued and
outstanding, 19,000
as
Series A Convertible Preferred Stock
and
20,000 as Series B Convertible Preferred Stock.
3.3
Subsidiaries;
Interests of the Company. Except as set forth in the SEC Documents, as defined
in Section
3.5
below,
the Company does not currently own or control, directly or indirectly, any
interest in any other partnership, limited liability company, corporation,
joint
stock company, trust, estate, joint venture, association or unincorporated
organization, or any other form of business or professional entity.
3.4
Authorization.
This Agreement and all other agreements executed and delivered by the Company
in
connection therewith, have been duly authorized, executed and delivered by
the
Company and constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to (i) applicable
bankruptcy, insolvency, reorganization and moratorium laws, (ii) other laws
of
general application affecting the enforcement of creditors' rights generally
and
general principles of equity, (iii) the discretion of the court before which
any
proceeding therefor may be brought, and (iv) as rights to indemnity may be
limited by federal or state securities laws or by public
policy.
-2-
3.5 SEC
Documents. The Company has filed all reports, schedules, forms, statements
and
other documents required to be filed by it with the Securities and Exchange
Commission (the “Commission”)
pursuant to the Securities Act of 1933 (the “Securities
Act”)
and
the Securities Exchange Act of 1934 (the “Exchange
Act”)
(the
“SEC
Documents”),
and
during the 12 calendar months prior to the date hereof all such SEC Documents
have been filed in a timely manner. The Company is currently eligible to use
Form S-3 for stockholder registration statements under the Securities Act.
The
SEC Documents have complied in all material respects with the requirements
of
the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were filed with
the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made, not misleading. As of their respective dates, to the best of the Company’s
knowledge during those respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all material respects
with
applicable accounting requirements and the published rules and regulations
of
the Commission with respect thereto. Such financial statements have been
prepared in accordance with accounting principles generally accepted in the
United States as in effect from time to time (“GAAP”),
consistently applied, during the periods involved (except (a) as may be
otherwise indicated in such financial statements or the notes thereto, or (b)
in
the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in
all
material respects the financial condition of the Company as of the respective
dates thereof and the results of its operations and cash flows for the
respective periods then ended (subject, in the case of unaudited statements,
to
normal year-end audit adjustments). Except as set forth in the SEC Documents,
the Company has not received notification from the Commission, the American
Stock Exchange and/or any federal or state securities bureaus that any
investigation (informal or formal), inquiry or claim is pending, threatened
or
in process against the Company and/or relating to any of the Company’s
securities.
3.6
Governmental
Consents. No consent, approval, order, or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state,
local or provincial governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated
by
this Agreement. The Company and each of its subsidiaries has obtained all
federal, state, local and foreign governmental licenses and permits material
to
and necessary in the conduct of its business, such licenses and permits are
in
full force and effect, no material violations are or have been recorded in
respect of any such licenses or permits, and no proceeding is pending or
threatened to revoke or limit any thereof. There are no consents or waivers
necessary for the consummation of the transactions contemplated by this
Agreement.
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3.7
Litigation.
Except as set forth in the SEC Documents, (i) there is no action, suit,
proceeding, or investigation pending or currently threatened against the
Company, and (ii) in the Company’s reasonable judgment, none of such disclosures
are likely to question the validity of this Agreement, or the right of the
Company to enter into such agreements, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually
or in
the aggregate, in any material adverse change in the assets, condition, affairs,
or property of the Company, financially or otherwise, or any change in the
current equity ownership of the Company, including, without limitation, actions
pending or to the Company’s knowledge threatened involving the prior employment
of any of the Company’s employees, their use in connection with the Company’s
business of any information or techniques allegedly proprietary to any of their
former employers, or their obligations under any agreements with prior
employers.
3.8
Compliance
with Other Instruments. The Company is not in violation or default of any
provisions of its Certificate of Incorporation or Bylaws or of any instrument,
judgment, order, writ, decree, or contract to which it is a party or by which
it
is bound or, to its knowledge, of any provision of federal or state statute,
rule or regulation, license, or permit applicable to the Company, the violation
or default of which would have a material adverse effect on the Company. The
execution, delivery, and performance of this Agreement and the consummation
of
the transactions contemplated hereby and thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage
of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree, or material contract or an event
which results in the creation of any lien, charge, or encumbrance upon any
assets of the Company.
4. Representations
and Warranties of the Noteholders.
Each
Noteholder represents and warrants to the Company as follows:
4.1 Review
and Inspection. The Noteholder is relying on his own analysis regarding the
Company’s operations, financial condition, assets, liabilities and other
relevant matters as the Noteholder deemed necessary or desirable in order to
evaluate the merits and risks of the prospective investment contemplated herein.
The Noteholder
acknowledges
that he has not relied upon any information given to the Noteholder, or any
statements made, by the Company or any officers or directors of the Company,
except for the representations and warranties of the Company expressly made
herein.
4.2 Noteholder
Due Diligence. The Noteholder and his representatives are solely responsible
for
the Noteholder’s own “due diligence” investigation of the Company and its
management and business and for the Noteholder’s analysis of the financial
future and viability of the Company and desirability of the terms of this
investment. The Noteholder acknowledges that neither the Company nor any officer
or director of the Company is making any representation or warranty regarding
any financial projections previously given to the Noteholder or the assumptions
underlying such financial projections, as such financial projections are subject
to significant business, economic and other uncertainties and contingencies.
The
Noteholder acknowledges that if the Company is not able to operate profitably
or
generate positive cash flows, the Company may have difficulty meeting its
obligations and may not be able to continue to operate its business, and the
Noteholder could lose all of his investment. The Noteholder has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the acquisition of the Shares pursuant to
the
terms of this Agreement and of protecting his interest in connection
therewith.
-4-
4.3 Accredited
Investor Status.
The
Noteholder is an “Accredited Investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act and the Noteholder is able
to
bear the economic risk of the acquisition of the Shares pursuant to the terms
of
this Agreement, including a complete loss of his investment in the
Shares.
4.4 Authority
for Agreement.
The
Noteholder has the full right, power and authority to enter into and perform
his
obligations under the Agreement, and the Agreement constitutes the valid and
binding obligations of the Noteholder enforceable in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization and moratorium
laws, (ii) other laws of general application affecting the enforcement of
creditors' rights generally and general principles of equity, (iii) the
discretion of the court before which any proceeding therefor may be brought,
and
(iv) as rights to indemnity may be limited by federal or state securities laws
or by public policy..
4.5 Governmental
Consents.
To the
Noteholder’s knowledge, no consent, approval or authorization of or designation,
declaration or filing with any governmental authority on the part of the
Noteholder is required in connection with the valid execution, delivery and
performance of the Agreement.
4.6 Taxes.
The
Noteholder has not relied on any statements or representations of the Company
or
any of its agents (other than the representations and warranties set forth
herein) with respect to the federal, state, local and foreign tax consequences
of this investment and the federal, state, local and foreign tax consequences
of
transactions contemplated by this Agreement. With respect to such matters,
the
Noteholder understands that he (and not the Company) shall be responsible for
his own tax liability that may arise as a result of this investment or the
transactions contemplated by this Agreement.
4.7
Unregistered
Securities.
The
Noteholder understands that the Securities and the Common Stock issuable upon
exercise of the Warrants (the “the Warrant Shares”) have not been registered
under the Securities Act or the laws of any state and may not be sold or
transferred, or otherwise disposed of, without registration under the Securities
Act and applicable state securities laws, or pursuant to an exemption therefrom.
In the absence of an effective registration statement or an exemption therefrom
covering the Securities and the Warrant Shares, the Noteholder will sell or
transfer, or otherwise dispose of, the Securities and any the Warrant Shares
he
may acquire only in a manner consistent with his representations and agreements
set forth herein and any applicable federal and state securities laws. Anything
to the contrary notwithstanding, the Company agrees with and acknowledges to
each Noteholder that the Shares and Warrants are being issued pursuant to the
exemption from registration provided by Section 3(a)(9) of the Securities Act
and, in accordance with the provisions of that Section and Rule 144 promulgated
under the Securities Act, neither the certificates representing the Shares
nor
the Warrants shall bear the legend referred to in Section
4.8
below.
-5-
4.8
Legends.
It is
understood that the certificates evidencing the Warrant Shares may bear the
following legend:
(a)
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THE SECURITIES EVIDENCED BY THIS
CERTIFICATE, FILED AND MADE EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND
SUCH
APPLICABLE STATE SECURITIES LAWS OR, UNLESS REASONABLY REQUESTED BY THE COMPANY,
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT AND SUCH APPLICABLE
STATE
SECURITIES LAWS IS NOT REQUIRED.
(b)
Any
legend required by the securities (“Blue Sky”) laws of any state.
The
legend referred to in clause (a) above shall be removed by the Company from
any
certificate at such time as the holder of the securities represented by the
certificate delivers an opinion of counsel reasonably satisfactory to the
Company to the effect that such legend is not required in order to establish
compliance with any provisions of the Securities Act, or at such time as the
holder of such shares satisfies the requirements of Rule 144 or such other
substantially similar rule promulgated under the Securities Act then in effect
under the Securities Act; provided, that the Company has received from the
holder a written representation that (i) such holder is not an affiliate of
the
Company and has not been an affiliate during the preceding three months, (ii)
such holder has beneficially owned and paid for the shares represented by the
certificate for a period of at least one year (or the period of time then
required by Rule 144 or such other substantially similar rule promulgated under
the Securities Act then in effect), and (iii) such holder otherwise satisfies
the requirements of Rule 144 as then in effect with respect to such
shares.
-6-
4.9 No
Short
Sales. The Noteholders and their affiliates have not engaged in short sales
of
the Common Stock (as defined in applicable SEC and FINRA rules) prior to the
date hereof and will not engage in short sales of the Common Stock prior to
the
registration of the Shares.
5. Representations
and warranties of the Agent.
The
Agent represents and warrants to the Company that it is authorized to act on
behalf of the Noteholders with respect to the transactions referred to in this
Agreement including providing the Noteholders” representations and warranties
set forth in Section
4
above.
6. Conditions
to the Obligations of the Noteholders.
The
obligation of the Noteholders to convert the Notes into the Securities (the
“Conversion”)
is
subject to the fulfillment, or the written waiver, of each of the following
conditions on or before the date of the Conversion (the “Conversion
Date”):
6.1 Accuracy
of Representations and Warranties. Each representation and warranty of the
Company contained in Section
3
hereof
shall be true on and as of the Conversion Date with the same effect as though
such representation and warranty had been made on and as of that
date.
6.2 Performance.
the Company shall have performed and complied with all covenants, agreements
and
conditions contained in this Agreement and required to be performed or complied
with by the Company prior to or at the Conversion Date.
6.3 Proceedings
and Documents. All documents and instruments incident to the transactions
contemplated at the Conversion shall be reasonably satisfactory in substance
and
form to each Noteholder and his counsel.
6.4
Share
Certificates and Warrants. Each Noteholder shall have received a certificate
or
certificates representing such number of Shares of his investment and the
Warrants registered in his name as set forth on the Schedule of
Noteholders.
6.6 Execution
of Registration Rights Agreement. The Company shall have executed and delivered
to the Registration Rights Agreement in the form appended hereto as Exhibit
B.
7. Condition
to the Obligations of the Company.
The
obligation of the Company to sell the Shares and deliver the Warrants at the
Conversion is subject to fulfillment, or the written waiver, of each of the
following conditions on or before the Conversion Date:
7.1 Accuracy
of Representations and Warranties. Each representation and warranty of the
Noteholders contained in Section
4
hereof
shall be true on and as of the Conversion Date with the same effect as though
such representation and warranty had been made on and as of that
date.
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7.2 Performance.
All covenants, agreements and conditions contained in this Agreement and
required to be performed by the Noteholders on or prior to the Conversion Date
shall have been performed or complied with in all material
respects.
8.
Covenants
of the Company.
In
addition to any covenants set forth in the Company's Certificate of
Incorporation, the Company agrees that, so long as any Noteholder and/or an
affiliate thereof beneficially owns any Shares and/or a Warrant remains
outstanding:
8.1
Maintenance
of Existence. the Company shall at all times (a) preserve, renew and keep in
full force and effect its legal existence and rights and franchises with respect
thereto; and (b) maintain in full force and effect all patents, copyrights,
permits, licenses, trademarks, trade names, approvals, authorizations, leases
and contracts necessary to carry on the business as currently or proposed to
be
conducted.
8.2 Payment
of Obligations. The Company shall pay and discharge at or before maturity,
all
of its material obligations and liabilities, including, without limitation,
tax
liabilities, except where the same may be contested in good faith by appropriate
proceedings or as waived, forgiven or modified by the creditor, and will
maintain, in accordance with generally accepted accounting principles as they
then exist, appropriate reserves for the accrual of any of the
same.
8.3 Reservation
of Shares. The Company shall at all times duly reserve the
Warrant Shares for
issuance upon exercise of the Warrants.
9.
Indemnity.
The
Company shall, with respect to the representations, warranties, covenants and
agreements made by it herein indemnify, defend and hold each Noteholder and
his
employees, partners, agents, counsel and affiliates (each, an “Indemnified
Party”)
harmless from and against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including legal and accounting
fees and expenses), arising from the untruth, inaccuracy or breach of any such
representations, warranties, covenants or agreements of the Company contained
in
this Agreement or the assertion of any claims relating to the foregoing. Without
limiting the generality of the foregoing, each Indemnified Party shall be deemed
to have suffered liability, loss or damage as a result of the untruth,
inaccuracy or breach of any such representations, warranties, covenants or
agreements if such liability, loss or damage shall be suffered by the
Indemnified Party as a result of, or in connection with, such untruth,
inaccuracy or breach or any facts or circumstances constituting such untruth,
inaccuracy or breach. the Company shall indemnify and hold harmless each
Indemnified Party against any losses, claims, damages or liabilities, joint
or
several, to which any of the foregoing persons may become subject, insofar
as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any violations by the Company of the Securities
Act or state Blue Sky laws applicable to the Company relating to action or
inaction required of the Company in connection with the Securities Act or
registration or qualification under such state Blue Sky laws; and shall
reimburse each such Indemnified Party for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however,
that no
indemnification shall be required hereunder for the gross negligence or willful
misconduct of any Indemnified Party or material breach by a Noteholder of any
of
the representations and warrants set forth in Section
4
hereof.
In case any such action is brought against an Indemnified Party, the Company
will be entitled to participate in and assume the defense thereof with counsel
reasonably satisfactory to such Indemnified Party, and after notice from the
Company to such Indemnified Party of its election to assume the defense thereof,
the Company shall be responsible for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, provided that
if
any Indemnified Party shall have reasonably concluded that there may be one
or
more legal defenses available to such Indemnified Party that conflict in any
material respect with those available to the Company, or that such claims or
litigation involves or could have an effect upon matters beyond the scope of
the
indemnity provided by this Section
9,
the
Company shall reimburse such Indemnified Party and shall not have the right
to
assume the defense of such action on behalf of such Indemnified party and the
Company shall reimburse each such Indemnified Party and any individual,
partnership, limited liability company, corporation, joint stock company, trust,
estate, joint venture, association or unincorporated organization, or any other
form of business or professional entity (“Person”) controlling such Indemnified
Party for that portion of the reasonable fees and expenses of any counsel
retained by the Indemnified Party. the Company shall not make any settlement
of
any claims indemnified against hereunder without the written consent of the
Indemnified Party or Parties, which consent shall not be unreasonably withheld.
Any claim for indemnification under this Section
9
with
respect to representations and warranties must be made not later than the end
of
the 12-month survival period set forth in Section
10.2.
-8-
10. Miscellaneous.
10.1 Assignment.
This Agreement and all of the provisions hereof will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights, interests
or
obligations hereunder may be assigned by any party without prior written consent
of the other party.
10.2 Survival
of Representations and Warranties. The warranties, representations and covenants
of the Company and the Noteholders contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement for a
period of 12 months after the date hereof and shall in no way be affected by
any
investigation of the subject matter thereof made by or on behalf of the
Noteholders or the Company.
10.3 Notices.
Unless otherwise provided, any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given (i) upon
personal delivery to the party to be notified, (ii) four days after deposit
with
the United States Post Office, by registered or certified mail, postage prepaid,
or (iii) one day after deposit with a reputable overnight courier service and
addressed to the party to be notified:
-9-
If
to the
Company:
Conversion
Services International, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx
Xxxxxx, President and Chief Executive Officer
With
a
Copy to:
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx, Esq.
If
to the
Noteholders:
TAG
Virgin Islands, Inc.
The
Tunick Building
0000
Xxxxxxx Xxxx, Xxxxx 000
Xx.
Xxxxxx, XX 00000
Attn: Xxxxx
Xxxxxxxxxxx, President
With
a
copy to:
Xxxxx
Xxxxxx, Esq.
000
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
10.4 Brokers.
Each Noteholder, on the one hand, and the Company, on the other hand
(a) represents and warrants to the other party that he/it has not retained
any finders or brokers in connection with the transactions contemplated by
this
Agreement, and (b) will indemnify and save the other party harmless from
and against any and all claims, liabilities or obligations with respect to
brokerage or finders’ fees or commissions, or consulting fees in connection with
the transactions contemplated by this Agreement asserted by any Person on the
basis of any statement or representation alleged to have been made by
him/it.
10.5 Expenses.
The Company and the Noteholders
shall
bear their own expenses incurred with respect to this Agreement and the
transactions contemplated hereby except that the Company shall pay the
reasonable fees and expenses incurred by the Noteholders for the legal services
rendered to them with respect to this Agreement and the transactions
contemplated hereby.
-10-
10.6 Entire
Agreement. This Agreement, the other documents delivered herewith pursuant
to
this Agreement and the Purchase Agreement embody the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings relating to such
subject matter.
10.7 Amendments
and Waivers. Any term of this Agreement may be amended and the observance of
any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Company and the Noteholders. No waivers of or exceptions to
any
term, condition or provision of this Agreement, in any one or more instances,
shall be deemed to be, or construed as, a further or continuing waiver of any
such term, condition or provision.
10.8 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original, but all of which shall be one and the same
document.
10.9 Section
Headings. The Section headings are for the convenience of the parties and in
no
way alter, modify, amend, limit, or restrict the contractual obligations of
the
parties.
10.10 Severability.
Any part, provision, representation or warranty of this Agreement that is
prohibited or that is held to be void or unenforceable shall be ineffective
solely to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
10.11 Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware (without regard to its conflict of laws
principles). The parties hereto irrevocably consent to the exclusive personal
jurisdiction of the federal and state courts located in the New York County,
New
York, as applicable, for any matter arising out of or relating to this
Agreement.
10.12 Gender.
The use herein of the masculine pronouns or similar terms shall be deemed to
include the feminine and neuter genders as well and the use of the singular
pronouns shall be deemed to include the plural as well.
(signature
page to follow)
-11-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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By:
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Name:
Xxxxx Xxxxxx
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Title:
President and Chief Executive Officer
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TAG
VIRGIN ISLANDS, INC.,
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as
agent for the Noteholders
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By:
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Name:
Xxxxx Xxxxxxxxxxx
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Title:
President
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-12-
