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EXHIBIT 10.52
CERPLEX NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of January 30, 1998, between
THE CERPLEX GROUP, INC., a Delaware corporation (the "Company"), and AURORA
ELECTRONICS, INC., a Delaware corporation (the "Purchaser").
WHEREAS, pursuant to an Agreement and Plan of Merger of even
date herewith (the "Merger Agreement"), among the Company, the Purchaser and
Xxxxx Acquisition Corp., a newly organized wholly-owned Delaware subsidiary of
the Purchaser ("Sub"), the Purchaser desires to acquire the Company through the
merger of Sub with and into the Company; and
WHEREAS, in connection with the transactions contemplated by
the Merger Agreement, the Purchaser and certain stockholders of the Purchaser
have entered into a Securities Purchase and Exchange Agreement, dated the date
hereof (the "Securities Purchase and Exchange Agreement"), pursuant to which
the Purchaser has agreed, among other things, to sell to such stockholders, and
such stockholders have agreed to purchase from the Purchaser, up to $15,000,000
aggregate principal amount of Senior Subordinated Notes of the Purchaser (the
"Purchaser Notes"), on the terms and subject to the conditions set forth in the
Securities Purchase and Exchange Agreement; and
WHEREAS the Company desires to issue and sell to the
Purchaser, and the Purchaser desires to purchase from the Company, a 10%
Subordinated Note due June 30, 1998 of the Company, in the aggregate principal
amount of $2,000,000, on the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, pursuant to the Securities Purchase and Exchange
Agreement, it is understood and agreed that a portion of the proceeds of the
sale of the Purchaser Notes shall be used by the Purchaser to purchase the Note
(as hereinafter defined) from the Company; and
WHEREAS, as an inducement to the Purchaser to enter into this
Agreement and to purchase the Note on the Closing Date (as hereinafter
defined), the Purchaser has granted to the Company an option to repurchase the
Note, on the terms and subject to the conditions set forth in a Stockholders
Agreement, dated the date hereof (the "Stockholders Agreement"), among the
Purchaser, the Company and Welsh, Carson, Xxxxxxxx & Xxxxx VII, L.P.;
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NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE OF THE NOTE
SECTION 1.001 Purchase and Sale of the Note. Subject to the
terms and conditions set forth herein, on the Closing Date:
(i) the Company shall execute, sell and deliver to the
Purchaser, and the Purchaser shall purchase from the Company, a 10%
Subordinated Note of the Company, substantially in the form attached
hereto as Exhibit A, dated the Closing Date, issued in the name of the
Purchaser and in the original principal amount of $2,000,000 (said
note, together with any notes issued in exchange or substitution
therefor, being hereinafter collectively called the "Note"); and
(ii) as payment in full for the Note being purchased by it
hereunder as aforesaid, the Purchaser shall pay to the Company the sum
of $2,000,000 by wire transfer of immediately available funds to an
account designated by the Company.
SECTION 1.002 Closing Date. The closing of the purchase and
sale of the Note shall take place at the offices of Reboul, MacMurray, Xxxxxx,
Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on January
30, 1998, or on such other date and at such time as may be mutually agreed upon
between the Purchaser and the Company (such date and time of the closing being
herein called the "Closing Date").
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
SECTION 2.001 Representations and Warranties of the Company.
The Company hereby represents and warrants to the Purchaser as follows:
(a) Organization and Corporate Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company has the corporate power and
authority (i) to own and hold its properties and carry on its business as
currently conducted and (ii) to execute, deliver and perform this Agreement and
the Note.
(b) Authorization of Agreements, Etc. The execution and
delivery by the Company of this Agreement and the Note and
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the performance by the Company of its respective obligations hereunder and
thereunder have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which the Company
or any of its properties or assets is bound, or conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(c) Validity. This Agreement has been duly executed and
delivered by the Company and constitutes, and the Note when executed and
delivered by the Company against payment therefor as provided in this Agreement
will constitute, legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws from time to time in effect
affecting the enforcement of creditors' rights generally and to general
principles of equity.
(d) Governmental Approvals. Subject to the accuracy of
the representations and warranties of the Purchaser set forth in Section 2.02,
no registration or filing with, or consent or approval of, or other action by,
any Federal, state or other governmental agency or instrumentality is or will
be necessary for the valid execution, delivery and performance of this
Agreement and the Note.
SECTION 2.002 Representations and Warranties of the
Purchaser. The Purchaser hereby represents and warrants to the Company as
follows:
(i) the Purchaser is acquiring the Note, for its own account,
for investment, and not with a view toward the resale or distribution
thereof;
(ii) the Purchaser understands that it must bear the economic
risk of its investment for an indefinite period of time because the
Note is not registered under the Securities Act of 1933, as amended
(the "Securities Act") or any applicable state securities laws, and
may not be resold unless subsequently registered under the Securities
Act and such other laws or unless an exemption from such registration
is available;
(iii) the Purchaser is able to fend for itself in the
transactions contemplated by this Agreement and has the
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ability to bear the economic risks of its investment in the Note for
an indefinite period of time; and
(iv) the Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of its investment in the Note, that it is an
"accredited investor" as such term is defined in Rule 501 of
Regulation D of the Securities and Exchange Commission under the
Securities Act and that it has not been formed solely for the purpose
of acquiring the Note being purchased by it hereunder.
ARTICLE III.
CONDITIONS PRECEDENT
SECTION 3.001. Conditions Precedent to the Obligations of the
Purchaser. The obligation of the Purchaser to purchase the Note hereunder is,
at its option, subject to the satisfaction, on or before the Closing Date, of
each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on and as
of the Closing Date as though made at and as of that date, and, if the
Closing Date is other than the date of this Agreement, the Company
shall have delivered to the Purchaser a certificate to that effect.
(b) All Proceedings To Be Satisfactory. All proceedings
to be taken by the Company in connection with the transactions
contemplated hereby and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Purchaser and its
counsel, and the Purchaser and its counsel shall have received all
such counterpart originals or certified or other copies of such
documents as it or they may reasonably request.
(c) Stockholders Agreement. The Company shall have
executed and delivered the Stockholders Agreement.
SECTION 3.002. Conditions Precedent to the Obligations of the
Company. The obligations of the Company hereunder are, at its option, subject
to the satisfaction, on or before the Closing Date, of the following
conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of the Purchaser contained in this
Agreement shall be true and correct in all material respects on and as
of the Closing Date as though made at and
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as of that date, and, if the Closing Date is other than the date of
this Agreement, the Purchaser shall have delivered to the Company a
certificate to that effect.
(b) All Proceedings To Be Satisfactory. All proceedings to
be taken by the Purchaser in connection with the transactions
contemplated hereby and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Company and its
counsel, and the Company and its counsel shall have received all such
counterpart originals or certified or other copies of such documents
as they may reasonably request.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.001. Expenses, Etc. Each party hereto will pay its
own expenses in connection with the transactions contemplated hereby, including
the fees and expenses of legal counsel.
SECTION 4.002 Survival of Agreements. All covenants,
agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement and the execution, sale and delivery
of the Note.
SECTION 4.003. Execution in Counterparts. For the convenience
of the parties, this Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
SECTION 4.004. Notices. Any notice or other communications
required or permitted hereunder shall be deemed to be sufficient if contained
in a written instrument delivered in person or duly sent by national overnight
courier service, by first class certified mail, postage prepaid, or by
facsimile addressed to such party at the address or facsimile number set forth
below:
If to the Company, to:
The Cerplex Group, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
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with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP
0000 XxxXxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Xx., Esq.
If to the Purchaser, to:
Aurora Electronics, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxx
with copies to:
Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxx X. XxXxxxxxx
and:
Reboul, MacMurray, Xxxxxx
Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or to such other address or facsimile number as each party hereto shall have
designated by notice in writing to the other party hereto.
SECTION 4.005. Entire Agreement. This Agreement and the Note
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject matter
hereof. No representation, warranty, promise, inducement or statement of
intention has been made by either party which is not embodied in this Agreement
or the Note, and neither party shall be bound by, or be liable for, any alleged
representation, warranty, promise, inducement or statement of intention not
embodied herein.
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SECTION 4.006. Applicable Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.007. Binding Effect; Benefits. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 4.008. Assignability. Neither this Agreement nor any
of the parties' rights or obligations hereunder shall be assignable by either
party hereto without the prior written consent of the other party hereto.
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IN WITNESS WHEREOF, the Company and the Purchaser have
executed this Agreement as of the day and year first above written.
THE CERPLEX GROUP, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Chairman
AURORA ELECTRONICS, INC.
By: /s/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
Title: Chairman
