Exhibit 10.24
OPTION AGREEMENT
This Option Agreement (this "Agreement") is made as of this
31st day of May 2001, by and between INFINITY INVESTORS LIMITED,
a corporation organized and existing under the laws of Nevis,
West Indies ("Infinity") and EDGE TECHNOLOGY GROUP, INC.
(formerly known as Visual Edge Systems Inc.), a Delaware
corporation (the "Company").
WHEREAS, Infinity is the holder of a certain Secured Note
(the "Note") in the current principal amount of $9,995,456 (the
"Current Principal Amount") due November 30, 2002 (the "Maturity
Date") issued by Aura Systems, Inc., a Delaware corporation
("Aura"), in the original principal amount of $10,441,928 on
February 22, 2000, the payment of which is secured by the
collateral security described in that certain Security Agreement
and Stock Pledge Agreement each dated February 22, 2000 and each
by and among Aura and various other parties in favor of Infinity
and various other parties (the Security Agreement, Stock Pledge
Agreement and all other documents, certificates and instruments
executed and delivered in connection with any of the foregoing,
to be collectively referred to as the "Security Documents"); and
WHEREAS, in exchange for Infinity's agreement to (i) pay to
the Company $200,000 contemporaneous herewith, (ii) pay to the
Company $200,000 on each of August 5, 2001, November 5, 2001,
February 5, 2002 and May 5, 2002 (each a "Payment Date") (such
amounts representing approximately the quarterly interest
receivable by Infinity on the Note) and (iii) contemporaneous
with any exercise of the Option (as hereafter defined), (x)
transfer and assign to the Company all of Infinity's right, title
and interest in the Note and Security Documents and (y) pay to
the Company any cash payments of the Current Principal Amount of
the Note received by Infinity after the date hereof and prior to
the time of exercise of the Option ("Principal Prepayments")
(collectively, the "Option Consideration"), the Company has
agreed to grant Infinity an option to purchase 3,333,333 shares
of common stock ("Common Stock") of the Company pursuant to the
terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. Grant of Option. In exchange for the Option
Consideration, the Company hereby grants to Infinity an option
(the "Option") to purchase from the Company 3,333,333 shares of
Common Stock (the "Option Shares") on the terms described herein.
2. Term and Exercise.
(a) This Option may be exercised by Infinity for all
of the Option Shares on May 31, 2002, but not otherwise (the
"Exercise Date").
(b) Infinity may exercise this Option (which shall be
effective as of the Exercise Date) by delivering to the Company a
Notice of Exercise in the form attached hereto as Exhibit A
(the "Notice of Exercise") on or immediately prior to the
Exercise Date and by transferring to the Company (I) all of its
right, title and interest in, to and under the Note and Security
Documents pursuant to the Assignment and Note Purchase Agreement
in the form attached hereto as Exhibit B (the "Assignment
Agreement") and (II) the amount of any Principal Prepayments
previously received by Infinity.
(c) Infinity and the Company shall each utilize all
commercially reasonable efforts to consummate as promptly as
practicable (and in all events within five (5) days of the
Exercise Date), the closing of the transfer of the Note and
Security Documents in exchange for the Option Shares upon
exercise of the Option. In furtherance thereof, Infinity and the
Company each covenant and agree to execute all commercially
reasonable documents necessary to cause such transfers,
including, without limitation, each party's execution of the
Assignment Agreement.
(d) This Agreement and the Option granted hereby shall
terminate on the earlier to occur of (i) the failure of Infinity
to make a payment of $200,000 to the Company on each Payment Date
(which failure is not cured within ten (10) days of the delivery
of written notice thereof by the Company to Infinity), (ii)
Infinity, by its voluntary actions, materially and adversely
alters the payment terms of the Note (such as Infinity accepting
prepayments of principal prior to the Maturity Date or Infinity
voluntarily agreeing to materially extend the Maturity Date) or
(iii) an event of default under the Note or Security Documents
has occurred and Infinity has exercised its remedies thereunder
and has either converted the Note to common stock of Aura or has
exercised its remedies and foreclosed on the collateral granted
pursuant to the Security Documents. Upon any such termination,
(x) the Company shall be entitled to retain any portion of the
Option Consideration previously paid to the Company as its sole
recourse for such termination and (y) Infinity shall have no
further liability whatsoever to the Company for any failure to
pay to the Company any portion of the Option Consideration.
3. Stock Splits and Reorganizations. The provisions of
this Agreement relating to the number of Option Shares shall be
appropriately adjusted for any stock split, corporate
reorganization or similar transaction of the Company which may
occur after the date hereof. By way of example, if the Company
consummates a 1 for 2 reverse stock split after the date hereof,
the number of Option Shares shall be decreased from 3,333,333 to
1,666,667.
4. Non-Transferability. Without the prior written consent
of the Company, which consent may be withheld by the Company in
its sole discretion, this Agreement and the Option granted hereby
may not be assigned, pledged, hypothecated, sold or otherwise
transferred or encumbered by Infinity; provided, however,
Infinity may assign the Option to any affiliate or to any of its
shareholders without the Company's prior consent. An attempted
assignment of the Agreement or the Option in contravention of
this Agreement shall be null and void and of no force or effect.
5. Entire Agreement. The provisions herein constitute the
entire agreement among the Company and Infinity and supersede all
previous expectations, understandings, communications,
representations and agreements whether verbal or written among
the parties with respect to the subject matter hereof.
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6. Notice. Unless otherwise specified herein, any notice
required to be given hereunder by any party shall be deemed to
have been well and sufficiently given if mailed by prepaid
registered mail, faxed to, or delivered at, the address of the
other party hereinafter set forth:
If to the Company: Edge Technology Group, Inc.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx XX
If to Infinity: Infinity Investors Limited
Xxxxxxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxx
P.O. Box 556
Charlestown, Nevis, West Indies
Attention: Xxxx XxXxxxxxxx
or at such other address as the other party may from time to time
direct in writing, and any such notice shall be deemed to have
been received: (a) if by regular mail, on the seventh business
day after the time of mailing; (b) if couriered by a recognized
domestic overnight courier with next day delivery requested, the
next business day after the time of receipt of pick up by such
courier; (c) if faxed, upon the date of such fax, subject to
receipt of transmission confirmation; and (d) if delivered in
person, upon the date of delivery.
7. Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the each of the parties and their
respective heirs, executors, administrators, successors and
permitted assigns, as the case may be.
8. Governing Law. This Agreement shall in all respects be
governed by and be construed in accordance with the laws of the
State of Delaware without regard to conflicts of laws principles
and the parties hereto submit to the exclusive jurisdiction of
the Courts of Delaware.
9. Severability. If any one or more of the provisions
contained in this Agreement shall be invalid, illegal or
unenforceable in any respect in any jurisdiction, the validity,
legality and enforceability of such provision or provisions shall
not in any way be affected or impaired thereby in any other
jurisdiction and the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby.
10. Number and Gender. Wherever the singular or the
masculine is used herein the same shall be deemed to include the
plural or the feminine or the body politic or corporate where the
context or the parties so require.
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11. Headings. The headings of the parts of this Agreement
are inserted for convenience only and shall not affect the
construction hereof.
12. Counterparts. This Agreement may be signed in one or
more counterparts, each of which when executed and delivered will
be considered an original and all of which together will
constitute one and the same agreement.
(signature page follows)
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IN WITNESS WHEREOF the parties hereto have duly executed
this Agreement as of the date above written.
EDGE TECHNOLOGY GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
INFINITY INVESTORS LIMITED
By: /s/ Xxxxxx X. Xxxxxxx XX
-------------------------
Name: Xxxxxx X. Xxxxxxx XX
Title: President and Chief Executive
Officer
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EXHIBIT A
---------
NOTICE OF EXERCISE
Gentlemen:
The undersigned hereby exercises its option for 3,333,333
shares of Common Stock of Edge Technology Group, Inc. (formerly
known as Visual Edge Systems Inc.), pursuant to and in accordance
with the terms and conditions of the Option Agreement dated as of
May 31, 2001, and hereby sells and assigns all of its right,
title and interest in the Note and Security Documents pursuant to
the Assignment and Note Purchase Agreement dated of even date
herewith, and requests that a certificate for such shares be
issued in the name of the undersigned and delivered to the
undersigned.
INFINITY INVESTORS LIMITED
By:
------------------------------
Name:
------------------------------
Title:
-----------------------------
Dated: May 31, 2002
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EXHIBIT B
---------
ASSIGNMENT AND NOTE PURCHASE AGREEMENT
THIS ASSIGNMENT AND NOTE PURCHASE AGREEMENT (this
"Agreement") dated May 31, 2002 among INFINITY INVESTORS LIMITED,
a corporation organized and existing under the laws of Nevis,
West Indies ("Assignor") and EDGE TECHNOLOGY GROUP, INC., a
Delaware corporation (the "Assignee").
W I T N E S S E T H:
-------------------
WHEREAS, Assignor is the holder of a Secured Note due
November 30, 2002 (the "Note") issued by Aura Systems, Inc., a
Delaware corporation (the "Company") the payment of which is
secured by the collateral security described in that certain
Security Agreement and Stock Pledge Agreement listed on Schedule
A attached hereto (the "Security Documents"); and
WHEREAS, pursuant to the terms of that certain Option
Agreement dated May 31, 2001 by and between Assignor and Assignee
(the "Option Agreement"), Assignor has agreed to sell and assign
to Assignee, and Assignee has agreed to purchase from Assignor,
on the basis provided herein, all of Assignor's right, title and
interest in the Note and the Security Documents for the
consideration and on the terms and conditions hereinafter set
forth.
A G R E E M E N T S:
-------------------
NOW, THEREFORE, in consideration of the recitals and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, Assignor and
Assignee agree as follows:
Assignment and Sale of Notes and Security Documents.
Assignor hereby GRANTS, CONVEYS, TRANSFERS and ASSIGNS (the
"Assignment") to Assignee, effective May 31, 2002, all of
Assignor's right, title and interest in, to and under the Note
and the Security Documents, together with all other liens,
security interests, financing statements, security agreements,
covenants, agreements, assignments, rights, benefits and
privileges in any way now or hereafter belonging or accruing to
the benefit of Assignor in respect of the Note and the Security
Documents and any indebtedness now or hereafter evidenced thereby
and any security therefor. The Assignment by Assignor to
Assignee is made WITHOUT RECOURSE to Assignee.
Payment for Assignment. As consideration for the Assignment
made herein and any other consideration received by Assignee from
Assignor pursuant to the terms of the Option Agreement, Assignee
shall issue on the date hereof to Assignor 3,333,333 (subject to
adjustment for stock splits, etc.) shares of common stock of
Assignee (the "Shares").
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Representations and Warranties of Assignors. Assignor
hereby represents and warrants to Assignee that as of the date
hereof:
Assignor is the sole owner and holder of the Note and
is a party to or the beneficiary of the Security Documents,
all of which are, to Assignor's knowledge, in full force and
effect.
To Assignor's knowledge, none of the provisions of the
Note or any of the Security Documents have been amended,
modified, extended, waived, released or renewed.
Assignor has not previously sold, transferred or
assigned any of its right, title or interest in the Note or
Security Documents to any other person or entity.
The unpaid principal balance of the Note as of May 31,
2002 is $9,995,456 and accrued and unpaid interest thereon
as of such date is approximately $65,000.
To the knowledge of Assignor, the Company has no
defenses to, or rights of offset against its obligations
under, the Notes or the Security Documents.
Assignor has taken all requisite corporate or other
action to authorize Assignor to execute and deliver this
Agreement and to permit it make the Assignment as
contemplated hereby. This Agreement has been duly executed
by Assignor and constitutes the valid, binding and
enforceable obligation of Assignor, except as may be limited
by applicable bankruptcy, insolvency, or other laws of
general application relating to the enforcement of
creditor's rights. No authorization, approval or consent
of, or notice to, any person under the provisions of the
organizational documents of Assignor, or under any other
relevant agreements, documents or instruments of Assignor,
or under applicable law that has not been obtained or given
is required to be obtained or given as of the date hereof
with respect to the execution and delivery by Assignor of
this Agreement, the consummation by Assignor of any
transaction contemplated hereby or the performance and
discharge by Assignor of its obligations hereunder.
Assignor is acquiring the Shares for its own account
and for investment purposes only; provided, however, nothing
contained herein shall limit or prohibit Assignor from
making a pro rata distribution of such Shares to its
shareholders.
Assignor is not acquiring the Shares with a view to
dividing its participation with others or with a view to or
in connection with any offering or distribution in violation
of Section 5 of the Securities Act of 1933, as amended (the
"Act"), or any other applicable federal or state securities
laws; provided, however, nothing contained herein shall
limit or prohibit Assignor from making a pro rata
distribution of such Shares to its shareholders.
Assignor has not been induced to acquire the Shares by
the use of advertisements or any form of public solicitation
by Assignee or its agents or representatives, and Assignor
has not and does not intend to pay any commission or other
remuneration to any person in connection with its
acquisition of the Shares.
The Shares will be held by Assignor or its shareholders
subject to all applicable provisions of the Act, the Rules
and Regulations of the Securities and Exchange Commission
thereunder, and all applicable state securities laws and
rules thereunder.
Assignor understands that the Shares have not been
registered under the Act, or under the securities laws of
any state, and that the Shares cannot be sold unless they
are subsequently registered under the Act and/or applicable
state securities laws or unless exemptions from such
registration provisions are available. Assignor understands
that the certificates representing the Shares and any and
all securities issued in replacement therefor or exchanged
therefor shall bear the following legend, or one
substantially similar thereto:
THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT
BE TRANSFERRED UNLESS THEY ARE SO REGISTERED
OR, IN THE OPINION OF COUNSEL ACCEPTABLE TO
THIS CORPORATION, SUCH TRANSFER IS EXEMPT
FROM REGISTRATION.
Assignor understands that ownership of the Shares
involves substantial risk. Assignor acknowledges that
Assignor has evaluated such risk and has determined that the
Shares are suitable investments. Assignor considers itself
sophisticated in financial and business matters and is
capable of evaluating the merits and risks of an investment
of this type and of protecting its own interests in
connection with this transaction.
Assignor and its shareholders are each "accredited
investors" as such term is defined in Rule 501(a) of the
Act.
Assignor understands that Assignee is relying on the
accuracy of the representations made herein and, but for the
existence of this letter, Assignee would not issue the
Shares.
Assignor has been provided access to business and
financial information regarding Assignee and has had the
opportunity to attend a meeting with representatives of
Assignee for the purpose of asking questions of and
receiving answers from the officers and directors of
Assignee, concerning Assignee's financial position,
valuation, opportunities and/or business and to discuss such
information with Assignor's advisors to enable Assignor to
make an informed investment decision regarding the
acquisition of the Shares.
Representations and Warranties of Assignee.
------------------------------------------
Assignee represents and warrants to Assignor that
Assignee has taken all requisite corporate and other action
to authorize Assignee to execute and deliver this Agreement
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and issue the Shares and to permit it to perform its
obligations hereunder and thereunder. This Agreement has
been duly executed by an authorized officer of Assignee and
constitutes the valid, binding and enforceable obligations
of Assignee. No authorization, approval or consent of, or
notice to, any person under the provisions of the
certificate of incorporation or bylaws, or any amendments
thereof, of Assignee, or under any other relevant
agreements, documents or instruments of Assignee, or under
applicable law that has not been obtained or given by
Assignee is required to be obtained or given by Assignee as
of the date hereof with respect to the execution and
delivery by Assignee of this Agreement, the issuance of the
Shares, the consummation by Assignee of any transaction
contemplated hereby or thereby or the performance and
discharge by Assignee of its obligations hereunder or
thereunder.
Assignee has made its own credit analysis and decision
to enter into this Agreement and acquire the Note and the
Security Documents and has not relied on any statements or
representations whatsoever from Assignor associated with the
financial status of the maker of the Note or its
collectibility.
Assignee is acquiring the Note for its own account, for
investment and not with a view to distribution.
Assignee represents and warrants that the Shares, when
issued and delivered in accordance with the terms of this
Agreement against the Assignment therefor, will be duly and
validly issued, fully paid, non-assessable and free and
clear of all liens, charges, claims and encumbrances.
Effect of Assignment. Assignor acknowledges and agrees that
upon consummation of the Assignment, the Assignment will vest in
and convey to Assignee all claims, rights and causes of action of
Assignor known to Assignor and existing on the date hereof
against the maker of the Note which arise out of or are in any
way related in and to the Note and the Security Documents.
Assignee acknowledges and agrees that upon consummation of this
Assignment, HW Partners, L.P. shall continue to act as the Agent
for the Funds (as such terms are defined in the Note and Security
Documents) and shall become the Agent for Assignee for purposes
of the Note and Security Documents. Assignee hereby grants to
Assignor (and its shareholders if the Shares are distributed to
Assignor's shareholders) registration rights associated with the
Shares as "Registrable Securities" to the same extent as set
forth in that certain Registration Rights Agreement dated
June 13, 1997, as subsequently amended, between Assignee,
Assignor and the other parties named therein.
Further Assurances. Assignor hereby agrees to execute and
deliver or cause to be executed and delivered hereafter any and
all further instruments or documents as Assignee may reasonably
request to evidence and vest in Assignee all interests of
Assignor in, to and under the Note, Security Documents, and all
collateral and agreements related thereto, including, without
limitation, endorsement and delivery of the Note to Assignee, and
execution and delivery of a financing statement or financing
statements and any related assignment assigning the Security
Documents to Assignee, each as of the date of consummation of the
Assignment.
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Miscellaneous.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTURED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELWARE WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Notification of the Company. Assignor hereby covenants and
agrees that, upon execution of this Agreement, Assignor
shall deliver a copy of this Agreement to the Company.
Severability. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or
future laws effective during the term thereof, such
provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part hereof;
and the remaining provisions hereof shall remain in full
force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance
herefrom.
Counterparts. This Agreement may be executed in a number of
identical counterparts, each of which, for all purposes,
shall be deemed an original, and all of which shall
constitute, collectively, one agreement.
Entire Agreement; Amendments. This instrument, together
with the other agreements, documents and instruments
executed in connection therewith, embodies the entire
agreement among the parties hereto and supersedes all prior
and contemporaneous agreements, representations and
understandings, if any, relating to the subject matter
hereof (except documents, agreements and instruments
delivered or to be delivered in accordance with the express
terms hereof). This Agreement may be amended only by a
written instrument signed by the parties against whom
enforcement is sought.
Parties Bound. This Agreement shall be binding upon, and
shall inure to the benefit of, each party and its respective
successors and assigns. Assignee may assign its rights or
obligations hereunder to any affiliate; provided, any such
assignment shall not relieve Assignee of its obligations
hereunder.
(Signature page follows)
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EXECUTED as of the day and year first written above.
Assignor:
INFINITY INVESTORS LIMITED
By:
------------------------------
Name:
------------------------------
Title:
-----------------------------
Assignee:
EDGE TECHNOLOGY GROUP, INC.
By:
------------------------------
Name:
------------------------------
Title:
----------------------------
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SCHEDULE A
SCHEDULE OF NOTE AND SECURITY DOCUMENTS
A. Secured Note payable by Aura Ceramics, Inc. (the "Company")
-----------------------------------------------------------
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A. B. C. D.
Original Stated Unpaid Principal
Note Date of Note Principal Amount Balance at 5/30/02
-----------------------------------------------------------------
Secured Note 2/22/00 $10,411,928 $9,995,456
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B. Security Documents
------------------
1. Security Agreement dated February 22, 2000 by and among
Aura and various other parties in favor of the Funds
and HW Partners, LP, as agent.
2. Stock Pledge Agreement dated February 22, 2000 by and
among Aura in favor of the Funds and HW Partners, LP,
as agent.
