Exhibit 10.1
PRIVATE PLACEMENT AGREEMENT
This Private Placement Agreement ("Agreement"), is made and entered into as of
the 12th day of October 2001, by and among Inprimis, Inc., a Florida
corporation, having its principal place of business at 0000 Xxxxx Xxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000 (the "Issuer"), Cash Card Communications Corp., Ltd.,
a Bermuda corporation, having its principal place of business at 00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx XX 00 ("C-4"), Eduard Will, an individual residing in
New Jersey ("Ed Will") and The Xxxxxx X. Xxxxx Trust U/A dated July 10, 1985,
Xxxxxx X. Xxxxx, Trustee, taxpayer I.D. no. ###-##-####, a resident of Palm
Beach County, Florida (the "Sider Trust"). C-4, Ed Will and the Sider Trust are
each hereinafter referred to as a "Subscriber," and collectively as the
"Subscribers."
FIRST: Pursuant to the exemption from registration provided under ss. 4(2) of
the Securities Act of 1933, as amended (the "Act"), the Issuer hereby offers to
each Subscriber for subscription and sale that number of shares of its Series A
Preferred Stock as are set forth opposite such Subscriber's name on Schedule 1
hereto (with respect to such Subscriber, such Subscriber's "Allotment"), each
such share having a par value of US$0.01 (one cent) per share and having the
terms and conditions set forth in Exhibit A hereto (each a "Preferred Share"),
at the issue price of US$0.125 (twelve and 1/2 cents) per share, for the
aggregate subscription price for such Subscriber's Allotment set forth opposite
such Subscribers name on Schedule 1 hereto (with respect to such Subscriber,
such Subscriber's "Allotment Price").
SECOND: Each Subscriber hereby irrevocably tenders payment to the Issuer in the
amount of such Subscriber's Allotment Price and subscribes for such Subscriber's
Allotment.
THIRD: The Preferred Shares shall be redeemable in whole or in part at the sole
discretion of the Issuer on or prior to 5:00 pm Eastern Daylight Savings Time,
July 1, 2002 (the "Redemption Date"), by (x) payment of $0.125 per share to the
holders thereof and (y) issuance of the number of Warrants specified in "Fifth"
below.
FOURTH: In the event any Preferred Shares have not been redeemed by the Issuer
by 5:00 pm Eastern Daylight Savings Time on the Redemption Date, each such
Preferred Share shall then be automatically converted into one share of the
Issuer's common stock.
FIFTH: In addition to the cash redemption price referred to in "Third" above, in
exchange for each two redeemed Preferred Shares the holder thereof shall receive
a warrant exercisable for one share of Issuer's common stock (the "Warrants").
SIXTH: Each Warrant shall have an expiry date of one year from date of issuance
and shall be exercisable at a strike price of $0.20 per share.
SEVENTH: Prior to the Redemption Date, the Preferred Shares may be converted
into common shares at the discretion of the Issuer.
EIGHTH: The exercise price of the Warrants, the number of shares issuable upon
exercise of the Warrants and the number of shares issuable upon conversion of
the Preferred Shares shall each be proportionally adjusted to reflect any stock
dividend, stock split, reverse stock split, combination of shares,
reclassification, recapitalization or other similar event altering the number of
outstanding shares of the Issuer's common or preferred stock, as applicable.
NINTH: Each Subscriber understands that none of the Preferred Shares, the
Warrants or the common stock issuable upon conversion or exercise thereof
(collectively, the "Securities") has been registered under the Act or under any
state or foreign securities act, that such Securities are "restricted" within
the meaning of the Act and that they may not be sold or traded in the absence of
a registration statement or opinion of counsel reasonably acceptable to the
Issuer that any such sale is exempt from registration requirements. In this
connection, each Subscriber represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby and
by the Act.
It is understood that the certificates evidencing the Securities may bear the
following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE OR FOREIGN SECURITIES OR
BLUE SKY LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER THAT REGISTRATION UNDER THE ACT OR ANY STATE OR FOREIGN SECURITIES
OR BLUE SKY LAWS IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF
THE ACT.
THESE SECURITIES ARE SUBJECT TO CERTAIN VOTING AND OTHER AGREEMENTS SET
FORTH IN A SHARE EXCHANGE AGREEMENT DATED OCTOBER 12, 2001 AND A PRIVATE
PLACEMENT AGREEMENT DATED OCTOBER 12, 2001, IN EACH CASE BETWEEN THE
ISSUER AND CERTAIN OF ITS SHAREHOLDERS. COPIES OF SUCH AGREEMENTS MAY BE
OBTAINED FROM THE ISSUER AT ITS PRINCIPAL EXECUTIVE OFFICES. "
TENTH: Each Subscriber represents and warrants to the Issuer that it is
subscribing for its Allotment for its own account for purposes of investment and
not with any present intent to effect a distribution in the same.
ELEVENTH: Each Subscriber represents and warrants to the Issuer that it is an
"accredited investor" as that term has been defined under Regulation D
promulgated under the Act .
TWELFTH: Each Subscriber represents and warrants to the Issuer that it (w) has
had the opportunity to conduct a due diligence investigation concerning the
Issuer's business operations, financial affairs and prospects and the terms and
conditions of the offering of the Preferred Shares, (x) believes it has received
all the information it considers necessary or appropriate for
deciding whether to purchase the Preferred Shares, (y) has examined and reviewed
all recent filings of the Issuer with the United States Securities and Exchange
Commission on Forms 10-Q and 10-K, respectively, and (z) has evaluated the risk
factors inherent in its investment in the Preferred Shares. Each Subscriber
represents that is an investor in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear the economic
risk of its investment and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
investment in the Preferred Shares. Each Subscriber also represents it has not
been organized for the purpose of acquiring the Preferred Shares.
Each Subscriber further represents and warrants that it has full power and
authority to enter into this Agreement, and this Agreement constitutes its valid
and legally binding obligation, enforceable in accordance with its terms.
THIRTEENTH: Each Subscriber's Allotment will be issued to such Subscriber
promptly following receipt by the Issuer of all required NASDAQ and shareholder
approvals relating to issuance of the Preferred Shares hereunder (or receipt of
appropriate waivers therefor). Pending such receipt, each Subscriber's Allotment
Price shall be held in escrow by the Issuer.
FOURTEENTH: Each Subscriber agrees that, so long as the Share Exchange Agreement
between Cash Card Communications Corp. Ltd. and Issuer dated October 12, 2001
and certain other parties thereto remains effective, such Subscriber shall vote
any Series A Preferred Shares of Issuer held by it, and any common shares of
Issuer held by it that were issued upon conversion of Series A Preferred Shares
of Issuer, as may be required to give effect to the transactions contemplated by
such Share Exchange Agreement. This voting agreement is intended to be governed
by Florida Business Corporation Act Section 607.0731, and shall be described in
the legend on any securities issued hereunder as set forth in "Ninth" above.
FIFTEENTH: Each party hereto represents that it neither is nor will be obligated
for any finders' fee or commission in connection with this transaction. Each
Subscriber, severally and not jointly, agrees to indemnify and hold harmless the
Issuer from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which such Subscriber or any of its officers, directors,
employees or representatives is responsible.
SIXTEENTH: Each party hereto shall pay all costs and expenses it incurs with
respect to the negotiation, execution, delivery and performance of this
Agreement.
SEVENTEENTH: This Agreement contains the entire understanding between the
parties and supersedes any prior understandings and agreements between them
respecting the subject matter of this Agreement.
EIGHTEENTH: This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without giving effect to the conflicts of laws
rules of that state.
NINETEENTH: This Agreement may not be changed orally. All modifications of this
Agreement must be in writing and must have be signed by the Parties.
TWENTIETH: This Agreement may be executed in several counterparts and all so
executed shall constitute one Agreement, binding on the parties even though any
party hereto does not sign the original or the same counterpart.
TWENTY-FIRST: Facsimile transmission of any signed original document, and the
retransmission of any signed facsimile transmission, shall be the same as
delivery of the original signed document. At the request of either party, a
party shall confirm documents with a facsimile transmitted signature by signing
an original document.
TWENTY-SECOND: Issuer at its own expense hereby agrees to cause promptly the
shares issued upon conversion of any of the Preferred Shares and upon the
exercise of any Warrants to be registered under the Securities Act of 1933, as
amended, and all applicable state securities laws and to comply with all rules
and regulations promulgated thereunder such that such shares shall be freely
tradeable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers as of the date first written above.
INPRIMIS, INC.
By: /s/ Eduard Will
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Eduard Will, CEO
CASH CARD COMMUNICATIONS CORP., LTD.
By: /s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx, CEO
/s/ Eduard Will
---------------------------------------
Eduard Will, as an individual
THE XXXXXX X. XXXXX TRUST U/A
DATED JULY 10, 1985, XXXXXX X.
XXXXX, TRUSTEE
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, Trustee
SCHEDULE 1
Subscriber Allotment Allotment Price
---------- --------- ---------------
EDUARD WILL 2,000,000 $250,000
CASH CARD
COMMUNICATIONS LTD. 1,600,000 $200,000
THE XXXXXX X. XXXXX
TRUST U/A DATED JULY
10, 1985, XXXXXX X.
XXXXX, TRUSTEE 400,000 $ 50,000
