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EXHIBIT 10.29
Securities Purchase Agreement, dated as of April 13, 1998
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of the date of
acceptance set forth below, is entered into by and between NHANCEMENT
TECHNOLOGIES, INC., a Delaware corporation, with headquarters located at 00000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (the "Company"), and each entity
named on a signature page hereto (each, a "Buyer").
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and
delivering this Agreement in accordance with and in reliance upon the exemption
from securities registration afforded, inter alia, by Rule 506 under Regulation
D ("Regulation D") as promulgated by the United States Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended (the "1933
Act"), and/or Section 4(2) of the 1933 Act; and
WHEREAS, the Buyer wishes to purchase, upon the terms and
subject to the conditions of this Agreement, shares of Series A Convertible
Preferred Stock, $0.01 par value per share (the "Convertible Preferred Stock"),
of the Company, which which will be convertible into shares of Common Stock,
$0.01 par value per share, of the Company (the "Common Stock"), upon the terms
and subject to the conditions of such Convertible Preferred Stock, and subject
to acceptance of this Agreement by the Company;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
a. PURCHASE; CERTAIN DEFINITIONS. (i) The undersigned hereby
agrees to initially purchase from the Company shares of the Convertible
Preferred Stock in the amount set forth on the signature page of this Agreement
(the "Initial Preferred Stock"), out of a total offering of $3,000,000 of such
Convertible Preferred Stock, and having the terms and conditions set forth in
the Certificate of Designations, Preferences and Relative, Participating,
Optional and Other Special Rights of Preferred Stock and Qualifications,
Limitations and Restrictions Thereof of Series A Preferred Stock of the Company
attached hereto as ANNEX I (the "Certificate of Designations"). The purchase
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price for the Initial Preferred Stock shall be as set forth on the signature
page hereto and shall be payable in United States Dollars.
(ii) As used herein, the term "Preferred Stock" means the
Initial Preferred Stock and the Additional Preferred Stock (as defined below),
unless the context otherwise requires.
(iii) As used herein, the term "Securities" means the
Preferred Stock and the Common Stock issuable upon conversion of the Preferred
Stock.
(iv) As used herein, the term "Purchase Price" means the
purchase price for the Initial Preferred Stock or the Additional Preferred
Stock, as the case may be.
(v) As used herein, the term "Initial Closing Date" means
the date of the closing of the purchase and sale of the Initial Preferred Stock,
as provided herein.
(vi) As used herein, the term "Additional Closing Date"
means the date of the closing of the purchase and sale of the relevant
Additional Preferred Stock, as provided herein.
(vii) As used herein, the term "Closing Date" means the
relevant Initial Closing Date or Additional Closing Date, as the case may be.
(viii) As used herein, the term "Market Price of the Common
Stock" means (x) the average closing bid price of the Common Stock for the five
(5) trading days ending on the trading day immediately before the date indicated
in the relevant provision hereof as reported by Bloomberg, LP or, if not so
reported, as reported on the over-the-counter market or (y) if the Common Stock
is listed on a stock exchange, the closing price on such exchange on the date
indicated in the relevant provision hereof, as reported in The Wall Street
Journal.
(ix) As used herein, the term "Effective Date" means the
effective date of the Registration Statement covering the Registrable Securities
(as that term is defined in the Registration Rights Agreement defined below).
b. FORM OF PAYMENT; DELIVERY OF PREFERRED STOCK.
(i) The Buyer shall pay the Purchase Price for the
relevant Preferred Stock by delivering immediately available good funds in
United States Dollars to the escrow agent (the "Escrow Agent") identified in the
Joint Escrow Instructions attached hereto as ANNEX II (the "Joint Escrow
Instructions") on the date prior to the relevant Closing Date.
(ii) No later than the relevant Closing Date, but in any
event promptly following payment by the Buyer to the Escrow Agent of the
relevant Purchase Price, the
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Company shall deliver one or more certificates representing the relevant
Preferred Stock, duly executed by or on behalf of the Company (collectively, the
"Certificate"), to the Escrow Agent.
(iii) By signing this Agreement, each of the Buyer and the
Company, subject to acceptance by the Escrow Agent, agrees to all of the terms
and conditions of, and becomes a party to, the Joint Escrow Instructions, all of
the provisions of which are incorporated herein by this reference as if set
forth in full.
c. METHOD OF PAYMENT. Payment into escrow of the Purchase
Price shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For credit to the account of Xxxxxxx & Xxxxxx, Esqs.
Account No.: -
Not later than 5:00 p.m., New York time, on the date which is two (2) New York
Stock Exchange trading days after the Company shall have accepted this Agreement
and returned a signed counterpart of this Agreement to the Escrow Agent by
facsimile, the Buyer shall deposit with the Escrow Agent the Purchase Price for
the Initial Preferred Stock in currently available funds. Time is of the essence
with respect to such payment, and failure by the Buyer to make such payment,
shall allow the Company to cancel this Agreement.
d. ESCROW PROPERTY. The Purchase Price and the Certificate
delivered to the Escrow Agent as contemplated by Sections 1(b) and (c) hereof
are referred to as the "Escrow Property."
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO
INFORMATION; INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees
with, the Company as follows:
a. Without limiting Buyer's right to sell the Common Stock
pursuant to the Registration Statement (as that term is defined in the
Registration Rights Agreement defined below), the Buyer is purchasing the
Preferred Stock and will be acquiring the shares of Common Stock issuable upon
conversion of the Preferred Stock (the "Converted Shares") for its own account
for investment only or as agent for other "accredited investors" (as that term
is used in paragraph 2(b) below) and not with a view
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towards the public sale or distribution thereof and not with a view to or for
sale in connection with any distribution thereof.
b. The Buyer is (i) an "accredited investor" as that term is
defined in Rule 501 of the General Rules and Regulations under the 1933 Act by
reason of Rule 501(a)(3), (ii) experienced in making investments of the kind
described in this Agreement and the related documents, (iii) able, by reason of
the business and financial experience of its officers (if an entity) and
professional advisors (who are not affiliated with or compensated in any way by
the Company or any of its affiliates or selling agents), to protect its own
interests in connection with the transactions described in this Agreement, and
the related documents, and (iv) able to afford the entire loss of its investment
in the Securities.
c. All subsequent offers and sales of the Preferred Stock and
the shares of Common Stock representing the Converted Shares (such Common Stock
sometimes referred to as the "Shares") by the Buyer shall be made pursuant to
registration of the Shares under the 1933 Act or pursuant to an exemption from
registration.
d. The Buyer understands that the Preferred Stock are being
offered and sold to it in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Buyer's compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of the Buyer set forth herein in order to determine the
availability of such exemptions and the eligibility of the Buyer to acquire the
Preferred Stock.
e. The Buyer and its advisors, if any, have been furnished
with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Preferred Stock and
the offer of the Shares which have been requested by the Buyer, including ANNEX
V hereto. The Buyer and its advisors, if any, have been afforded the opportunity
to ask questions of the Company and have received complete and satisfactory
answers to any such inquiries. Without limiting the generality of the foregoing,
the Buyer has also had the opportunity to obtain and to review an unfiled draft
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, as provided to the Buyer under cover of a copy of a letter, dated
March 8, 1998 (the "Company's SEC Documents").
f. The Buyer understands that its investment in the Securities
involves a high degree of risk.
g. The Buyer understands that no United States federal or
state agency or any other government or governmental agency has passed on or
made any recommendation or endorsement of the Securities.
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h. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally.
i. Notwithstanding the provisions hereof or of the Preferred
Stock, in no event (except if the Company is in default under any of the terms
of the Certificate of Designations or any of the Transaction Agreements, as
defined below and the Purchaser has asserted such default) shall the holder be
entitled to convert any Preferred Stock to the extent that, after such
conversion, the sum of (1) the number of shares of Common Stock beneficially
owned by the Buyer and its affiliates (other than shares of Common Stock which
may be deemed beneficially owned through the ownership of the unconverted
portion of the Preferred Stock), and (2) the number of shares of Common Stock
issuable upon the conversion of the Preferred Stock with respect to which the
determination of this proviso is being made, would result in beneficial
ownership by the Buyer and its affiliates of more than 9.99% of the outstanding
shares of Common Stock. For purposes of the proviso to the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
except as otherwise provided in clause (1) of such proviso.
3. COMPANY REPRESENTATIONS, ETC.
The Company represents and warrants to the Buyer that, except
as provided in ANNEX V hereto:
a. CONCERNING THE PREFERRED STOCK AND THE SHARES. The
Preferred Stock has been duly authorized, and when issued, will be duly and
validly issued, fully paid and non-assessable and will not subject the holder
thereof to personal liability by reason of being such holder. There are no
preemptive rights of any stockholder of the Company, as such, to acquire the
Preferred Stock or the Shares.
b. REPORTING COMPANY STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the business, operations
or condition (financial or otherwise) of the Company. The Company has registered
its Common Stock pursuant to Section 12 of the 1934 Act, and the Common Stock is
listed and traded on The NASDAQ/SmallCap Market. The Company has received no
notice, either oral or written, with respect to the continued
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eligibility of the Common Stock for such listing, and the Company has maintained
all requirements for the continuation of such listing.
c. AUTHORIZED SHARES. The Company has sufficient authorized
and unissued Shares as may be reasonably necessary to effect the conversion of
the Preferred Stock. The Converted Shares have been duly authorized and, when
issued upon conversion of, or as interest on, the Preferred Stock in accordance
with the terms of the Certificate of Designations will be duly and validly
issued, fully paid and non-assessable and will not subject the holder thereof to
personal liability by reason of being such holder.
d. SECURITIES PURCHASE AGREEMENT; REGISTRATION RIGHTS
AGREEMENT AND STOCK. This Agreement and the Registration Rights Agreement, the
form of which is attached hereto as ANNEX IV (the "Registration Rights
Agreement"), and the transactions contemplated thereby, have been duly and
validly authorized by the Company, this Agreement has been duly executed and
delivered by the Company and this Agreement is, and the Registration Rights
Agreement, when executed and delivered by the Company, will be, valid and
binding agreements of the Company enforceable in accordance with their
respective terms, subject as to enforceability to general principles of equity
and to bankruptcy, insolvency, moratorium, and other similar laws affecting the
enforcement of creditors' rights generally; and the Preferred Stock will be duly
and validly authorized and, when executed and delivered on behalf of the Company
in accordance with this Agreement, will be a valid and binding obligation of the
Company in accordance with its terms, subject to general principles of equity
and to bankruptcy, insolvency, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally.
e. NON-CONTRAVENTION. The execution and delivery of this
Agreement and the Registration Rights Agreement by the Company, the issuance of
the Securities, and the consummation by the Company of the other transactions
contemplated by this Agreement, the Registration Rights Agreement, and the
Preferred Stock do not and will not conflict with or result in a breach by the
Company of any of the terms or provisions of, or constitute a default under (i)
the articles of incorporation or by-laws of the Company, each as currently in
effect, (ii) any indenture, mortgage, deed of trust, or other material agreement
or instrument to which the Company is a party or by which it or any of its
properties or assets are bound, including any listing agreement for the Common
Stock except as herein set forth, (iii) to its knowledge, any existing
applicable law, rule, or regulation or any applicable decree, judgment, or order
of any court, United States federal or state regulatory body, administrative
agency, or other governmental body having jurisdiction over the Company or any
of its properties or assets, or (iv) the Company's listing agreement for its
Common Stock, except such conflict, breach or default which would not have a
material adverse effect on the Company or on the transactions contemplated
herein.
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f. APPROVALS. No authorization, approval or consent of any
court, governmental body, regulatory agency, self-regulatory organization, or
stock exchange or market or the stockholders of the Company is required to be
obtained by the Company for the issuance and sale of the Securities to the Buyer
as contemplated by this Agreement, except such authorizations, approvals and
consents that have been obtained.
g. SEC FILINGS. None of the Company's SEC Documents
contained, at the time they were filed, any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements made therein in light of the circumstances under which
they were made, not misleading. The Company has since January 1, 1997 timely
filed all requisite forms, reports and exhibits thereto with the SEC.
h. ABSENCE OF CERTAIN CHANGES. Since January 1, 1998, there
has been no material adverse change and no material adverse development in the
business, properties, operations, condition (financial or otherwise), or results
of operations of the Company, except as disclosed in the Company's SEC
Documents. Since January 1, 1998, except as provided in the Company's SEC
Documents, the Company has not (i) incurred or become subject to any material
liabilities (absolute or contingent) except liabilities incurred in the ordinary
course of business consistent with past practices; (ii) discharged or satisfied
any material lien or encumbrance or paid any material obligation or liability
(absolute or contingent), other than current liabilities paid in the ordinary
course of business consistent with past practices; (iii) declared or made any
payment or distribution of cash or other property to stockholders with respect
to its capital stock, or purchased or redeemed, or made any agreements to
purchase or redeem, any shares of its capital stock; (iv) sold, assigned or
transferred any other tangible assets, or canceled any debts or claims, except
in the ordinary course of business consistent with past practices; (v) suffered
any substantial losses or waived any rights of material value, whether or not in
the ordinary course of business, or suffered the loss of any material amount of
existing business; (vi) made any changes in employee compensation, except in the
ordinary course of business consistent with past practices; or (vii) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment.
i. FULL DISCLOSURE. There is no fact known to the Company
(other than general economic conditions known to the public generally or as
disclosed in the Company's SEC Documents) that has not been disclosed in writing
to the Buyer that (i) would reasonably be expected to have a material adverse
effect on the business or financial condition of the Company , (ii) would
reasonably be expected to materially and adversely affect the ability of the
Company to perform its obligations pursuant to this Agreement or any of the
agreements contemplated hereby (collectively, including this Agreement, the
"Transaction Agreements"), or (iii) would reasonably be expected to materially
and adversely affect the value of the rights granted to the Buyer in the
Transaction Agreements.
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j. ABSENCE OF LITIGATION. Except as set forth in the Company's
SEC Documents, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board or body pending or, to the knowledge of the
Company, threatened against or affecting the Company, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
properties, business or financial condition, or results of operation of the
Company and its subsidiaries taken as a whole or the transactions contemplated
by any of the Transaction Agreements or which would adversely affect the
validity or enforceability of, or the authority or ability of the Company to
perform its obligations under, any of the Transaction Agreements.
k. ABSENCE OF EVENTS OF DEFAULT. Except as set forth in
Section 3(e) hereof, no Event of Default (or its equivalent term), as defined in
the respective agreement to which the Company is a party, and no event which,
with the giving of notice or the passage of time or both, would become an Event
of Default (or its equivalent term) (as so defined in such agreement), has
occurred and is continuing, which would have a material adverse effect on the
Company's financial condition or results of operations.
l. PRIOR ISSUES. During the twelve (12) months preceding the
date hereof, the Company has not issued any convertible securities. The
presently outstanding unconverted principal amount of each such issuance as at
April 8, 1998 are set forth in ANNEX V.
m. NO UNDISCLOSED LIABILITIES OR EVENTS. The Company has no
liabilities or obligations other than those disclosed in the Company's SEC
Documents or those incurred in the ordinary course of the Company's business
since January 1, 1998, and which individually or in the aggregate, do not or
would not have a material adverse effect on the properties, business, condition
(financial or otherwise), or results of operations of the Company. No event or
circumstances has occurred or exists with respect to the Company or its
properties, business, condition (financial or otherwise), or results of
operations, which, under applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company but which has
not been so publicly announced or disclosed. There are no proposals currently
under consideration or currently anticipated to be under consideration by the
Board of Directors or the executive officers of the Company which proposal would
(x) change the charter or by-laws of the Company, each as currently in effect,
with or without shareholder approval, which change would reduce or otherwise
adversely affect the rights and powers of the shareholders of the Common Stock
or (y) materially or substantially change the business, assets or capital of the
Company, including its interests in subsidiaries.
n. NO DEFAULT. The Company is not in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any material indenture, mortgage, deed of trust or other
material instrument or agreement to which it is a party or by which it or its
property is bound.
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o. NO INTEGRATED OFFERING. Neither the Company nor any of its
affiliates nor any person acting on its or their behalf has, directly or
indirectly, at any time since January 1, 1997, made any offer or sales of any
security or solicited any offers to buy any security under circumstances that
would eliminate the availability of the exemption from registration under Rule
506 of Regulation D in connection with the offer and sale of the Securities as
contemplated hereby.
p. DILUTION. The number of Shares issuable upon conversion of
the Preferred Stock may increase substantially in certain circumstances,
including, but not necessarily limited to, the circumstance wherein the trading
price of the Common Stock declines prior to the conversion of the Preferred
Stock. The Company's executive officers and directors have studied and fully
understand the nature of the Securities being sold hereby and recognize that
they have a potential dilutive effect. The board of directors of the Company has
concluded, in its good faith business judgment, that such issuance is in the
best interests of the Company. The Company specifically acknowledges that its
obligation to issue the Shares upon conversion of the Preferred Stock is binding
upon the Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
a. TRANSFER RESTRICTIONS. The Buyer acknowledges that (1) the
Preferred Stock have not been and are not being registered under the provisions
of the 1933 Act and, except as provided in the Registration Rights Agreement,
the Shares have not been and are not being registered under the 1933 Act, and
may not be transferred unless (A) subsequently registered thereunder or (B) the
Buyer shall have delivered to the Company and opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (2) any sale of the Securities made in
reliance on Rule 144 promulgated under the 1933 Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Securities under circumstances in which the
seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the 1933 Act, may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC
thereunder; and (3) neither the Company nor any other person is under any
obligation to register the Securities (other than pursuant to the Registration
Rights Agreement) under the 1933 Act or to comply with the terms and conditions
of any exemption thereunder.
b. RESTRICTIVE LEGEND. The Buyer acknowledges and agrees
that the Preferred Stock and, until such time as the Common Stock has been
registered under the 1933 Act as contemplated by the Registration Rights
Agreement and sold in accordance with an effective Registration Statement,
certificates and other instruments representing any of the Securities shall
bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of any such Securities):
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THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER
EVIDENCE ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS
NOT REQUIRED.
c. REGISTRATION RIGHTS AGREEMENT. The parties hereto agree to
enter into the Registration Rights Agreement on or before the Closing Date.
d. FILINGS AND SHAREHOLDER CONSENT. (i) The Company
undertakes and agrees to make all necessary filings in connection with the sale
of the Preferred Stock to the Buyer under any United States laws and regulations
applicable to the Company, or by any domestic securities exchange or trading
market, and to provide a copy thereof to the Buyer promptly after such filing.
(ii) The Company undertakes and agrees to take all steps
necessary to have a vote of the shareholders of the Company regarding
authorization of the Company's issuance to the holders of the Preferred Stock of
shares of Common Stock in excess of twenty percent (20%) of the outstanding
shares of Common Stock on the Initial Closing Date or any Additional Closing
Date, whichever is higher on or before the Effective Date in accordance with
NASDAQ Rule 4301(c)(25)(H)(i)(d)(2). The Company will recommend to the
shareholders that such authorization be granted and will seek proxies from
shareholders not attending the meeting (if such meeting is required to
effectuate such authorization) naming a director or officer of the Company as
such shareholder's proxy and directing the proxy to vote, or giving the proxy
the authority to vote, in favor of such authorization. The Company has obtained
the commitment of each director and officer of the Company owning, directly or
indirectly, shares of the Common Stock or who might be designated as a proxy for
shareholders that such director or officer will vote such shares and any proxy
given to him or her (except to extent specifically directed otherwise in a
proxy) in favor of such authorization. Upon determination that the shareholders
have voted in favor of such authorization, the Company shall cause its counsel
to issue to the Buyer an unqualified opinion (the "Authorization Opinion") that
such authorization has been duly adopted by all necessary corporate action of
the Company and that the Company will be able to issue, without restriction as
to the number of such shares, all shares of Common Stock as may be issuable upon
conversion of the Preferred Stock and without any limits imposed by the Cap
Regulations (as defined below) adopted on or before and in effect on the date of
the Authorization Opinion. The Authorization Opinion shall state that the Buyer
may rely thereon in connection with the transactions contemplated regarding the
Additional Preferred Stock and its holdings of the Preferred Stock.
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e. REPORTING STATUS. So long as the Buyer beneficially owns
any of the Preferred Stock, the Company shall file all reports required to be
filed with the SEC pursuant to Section 13 or 15(d) of the 1934 Act, and the
Company shall not terminate its status as an issuer required to file reports
under the 1934 Act even if the 1934 Act or the rules and regulations thereunder
would permit such termination. The Company will take all reasonable action under
its control to continue the listing and trading of its Common Stock on The
NASDAQ/SmallCap Market and will comply in all material respects with the
Company's reporting, filing and other obligations under the by-laws or rules of
the National Association of Securities Dealers, Inc. ("NASD") or The
NASDAQ/SmallCap Market.
f. USE OF PROCEEDS. The Company will use the proceeds from the
sale of the Preferred Stock (excluding amounts paid by the Company for legal
fees, finder's fees and escrow agent fees in connection with the sale of the
Preferred Stock) for internal working capital purposes and for payment of the
purchase price of Infotel Technologies (PTE) Ltd., a company incorporated in
Singapore, and shall not, directly or indirectly, use such proceeds for any loan
to or investment in any other corporation, partnership, enterprise or other
person, including any of its affiliates, or to repay any debt to any of its
affiliates.
g. CERTAIN AGREEMENTS. The Company covenants and agrees that
it will not, without the prior written consent of the Buyer, enter into any
subsequent or further offer or sale of Common Stock or securities convertible
into Common Stock with any third party on any date which is earlier than the
later of (A) one hundred eighty (180) days after the Effective Date or (B) one
hundred twenty (120) days after the last Additional Closing Date.
h. FUTURE PURCHASES. (i) The Buyer hereby unconditionally and
irrevocably agrees to purchase from the Company, and the Company hereby
unconditionally and irrevocably agrees to issue to the Buyer additional shares
of Preferred Stock (collectively, the "Additional Preferred Stock") having a
liquidation amount of up to the relevant Additional Tranche identified in
subparagraph (h)(ii) below multiplied by a fraction, of which the numerator is
the principal amount of the Initial Preferred Stock and the denominator is
$1,250,000. The Additional Preferred Stock shall be issued and acquired in three
tranches (each, an "Additional Tranche"), on the terms and subject to the
conditions hereinafter provided.
(ii) The first Additional Tranche (the "First Additional
Tranche") and the second Additional Tranche (the "Second Additional Tranche")
shall be for $500,000 each. The third Additional Tranche (the "Third Additional
Tranche") shall be for $750,000.
(iii) The closing for the First Additional Tranche shall
occur on the date (the "First Additional Closing Date") which is sixty (60)
days after the Effective Date,
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unless otherwise agreed to by the Company and the Buyer. The closing for the
Second Additional Tranche shall occur on the date (the "Second Additional
Closing Date") which is thirty (30) days after the First Additional Closing
Date, unless otherwise agreed to by the Company and the Buyer. The closing for
the Third Additional Tranche shall occur on the date (the "Third Additional
Closing Date") which is thirty (30) days after the Second Additional Closing
Date, unless otherwise agreed to by the Company and the Buyer. The closing of
each Additional Tranche shall be conducted upon the same terms and conditions
as those applicable to the Initial Preferred Stock. Each of the First
Additional Closing Date, the Second Additional Closing Date and the Third
Additional Closing Date is referred to as an "Additional Closing Date."
(iv) On the relevant Additional Closing Date, (A) the
Registration Statement required to be filed under the Registration Rights
Agreement shall continue to be effective, and (B) the representations and
warranties of the Company contained in Section 3 hereof shall be true and
correct in all material respects (and the Company's issuance of the relevant
Additional Preferred Stock shall constitute the Company's making each such
representation and warranty as of such date) and there shall have been no
material adverse changes (financial or otherwise) in the business or conditions
of the Company from the Initial Closing Date through and including the relevant
Additional Closing Date (and the Company's issuance of the relevant Additional
Preferred Stock shall constitute the Company's making such representation and
warranty as of such date).
(v) It shall be a condition to the Buyer's obligation to
purchase the relevant Additional Preferred Stock that, as of the relevant
Additional Closing Date, (A) the Market Price of the Common Stock, as adjusted
to reflect any stock splits, reverse stock splits or stock dividends effected or
declared after the Initial Closing Date, be Two Dollars ($2.00) or more per
share, (B) the average daily trading volume for the Common Stock for the thirty
(30) consecutive trading days ending the day before the Additional Closing Date
be twenty thousand (20,000) or more shares, and (C) the Authorization Opinion
shall have been issued to the Buyer.
i. AVAILABLE SHARES. The Company shall have at all times
authorized and reserved for issuance, free from preemptive rights, shares of
Common Stock sufficient to yield two hundred percent (200%) of the number of
shares of Common Stock issuable at conversion as may be required to satisfy the
conversion rights of the Buyer pursuant to the terms and conditions of the
Preferred Stock.
j. LIMITATION ON ISSUANCE OF SHARES. The Company may be
limited in the number of shares of Common Stock it may issue by virtue of (i)
the number of authorized shares or (ii) the applicable rules and regulations of
the principal securities market on which the Common Stock is listed or traded
(collectively, the "Cap Regulations"). The Company agrees whether or not
provided in the Certificate of Designations, (i) the Company will take all steps
reasonably necessary to be in a position to issue shares of Common Stock on
conversion of the Preferred Stock without violating the Cap Regulations and (ii)
if, despite taking such steps, the Company still can not issue
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such shares of Common Stock without violating the Cap Regulations, the holder
of a share Preferred Stock which can not be converted as result of the Cap
Regulations (each such share, an "Unconverted Preferred Stock") shall have the
option, exercisable in such holder's sole and absolute discretion, to elect
either of the following remedies:
(x) require the Company to issue shares of Common Stock in
accordance with such holder's notice of conversion at a conversion purchase
price equal to the average of the closing bid price per share of Common Stock
for any five (5) consecutive trading days (subject to certain equitable
adjustments for certain events occurring during such period) during the sixty
(60) trading days immediately preceding the date of notice of conversion; or
(y) require the Company to redeem such share of Unconverted
Preferred Stock for an amount (the "Redemption Amount"), payable in cash, equal
to:
V x M
-----------
CP
where:
"V" means the liquidation preference of a share of Unconverted
Preferred Stock plus any accrued but unpaid dividends thereon;
"CP" means the conversion price in effect on the date of
redemption (the "Redemption Date") specified in the notice from the holder of
the Unconverted Preferred Stock electing this remedy; and
"M" means the highest closing bid price per share of the
Common Stock during the period beginning on the Redemption Date and ending on
the date of payment of the Redemption Amount.
If a holder owns more than one share of Unconverted Preferred Stock, such holder
may elect one of the above remedies with respect to some of such shares of
Unconverted Preferred Stock and the other remedy with respect to other shares of
Unconverted Preferred Stock. The Certificate of Designations shall not contain
any provisions inconsistent with the above terms. The provisions of this
paragraph are not intended to limit the scope of the provisions otherwise
included in the Certificate of Designations.
k. HEDGING TRANSACTIONS. The Company understands that the
Buyer may be a so-called "hedge" fund, and the Company hereby expressly agrees
that the Buyer shall not in any way be prohibited or restricted from any
purchases or sales of any securities or other instruments of, or related to, the
Company or any of its securities, including, but not necessarily limited to,
puts, calls, futures contracts, short sales and
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hedging and arbitrage transactions. The Buyer acknowledges that such purchases,
sales and other transactions may be subject to various federal and state
securities laws and agrees to comply with all such applicable securities laws.
5. TRANSFER AGENT INSTRUCTIONS.
a. Promptly following the delivery by the Buyer of the
Purchase Price for the Initial Preferred Stock in accordance with Section 1(c)
hereof, the Company will irrevocably instruct its transfer agent to issue Common
Stock from time to time upon conversion of the Preferred Stock in such amounts
as specified from time to time by the Company to the transfer agent, bearing the
restrictive legend specified in Section 4(b) of this Agreement prior to
registration of the Shares under the 1933 Act, registered in the name of the
Buyer or its nominee and in such denominations to be specified by the Buyer in
connection with each conversion of the Preferred Stock. The Company warrants
that no instruction other than such instructions referred to in this Section 5
and stop transfer instructions to give effect to Section 4(a) hereof prior to
registration and sale of the Shares under the 1933 Act will be given by the
Company to the transfer agent and that the Shares shall otherwise be freely
transferable on the books and records of the Company as and to the extent
provided in this Agreement, the Registration Rights Agreement, and applicable
law. Nothing in this Section shall affect in any way the Buyer's obligations and
agreement to comply with all applicable securities laws upon resale of the
Securities. If the Buyer provides the Company with an opinion of counsel
reasonably satisfactory to the Company that registration of a resale by the
Buyer of any of the Securities in accordance with clause (1)(B) of Section 4(a)
of this Agreement is not required under the 1933 Act, the Company shall (except
as provided in clause (2) of Section 4(a) of this Agreement) permit the transfer
of the Securities and, in the case of the Converted Shares, promptly instruct
the Company's transfer agent to issue one or more certificates for Common Stock
without legend in such name and in such denominations as specified by the Buyer.
b. Subject to the completeness and accuracy of the Buyer's
representations and warranties herein, upon the conversion of any Preferred
Stock by a person who is a non-U.S. Person, and following the expiration of any
then applicable Restricted Period (as those terms are defined in Regulation S),
the Company, shall, at its expense, take all necessary action (including the
issuance of an opinion of counsel) to assure that the Company's transfer agent
shall issue stock certificates without restrictive legend or stop orders in the
name of Buyer (or its nominee (being a non-U.S. Person) or such non-U.S. Persons
as may be designated by Buyer) and in such denominations to be specified at
conversion representing the number of shares of Common Stock issuable upon such
conversion, as applicable. Nothing in this Section 5, however, shall affect in
any way Buyer's or such nominee's obligations and agreement to comply with all
applicable securities laws upon resale of the Securities.
c. (i) The Company will permit the Buyer to exercise its
right to convert the Preferred Stock by telecopying or delivering an executed
and completed
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Notice of Conversion to the Company and delivering, within five (5) business
days thereafter, the original Preferred Stock being converted to the Company by
express courier, with a copy to the transfer agent.
(ii) The term "Conversion Date" means, with respect to any
conversion elected by the holder of the Preferred Stock, the date specified in
the Notice of Conversion, provided the copy of the Notice of Conversion is
telecopied to or otherwise delivered to the Company in accordance with the
provisions hereof so that is received by the Company on or before such specified
date.
(iii) The Company shall, at its expense, take all actions
and use all means necessary and diligent to cause its transfer agent to transmit
the certificates representing the Converted Shares issuable upon conversion of
any Preferred Stock (together with Preferred Stock not being so converted) to
the Buyer via express courier, by electronic transfer or otherwise, within three
(3) business days (such third business day, the "Delivery Date") after (A) the
business day on which the Company has received both of the Notice of Conversion
(by facsimile or other delivery) and the original Preferred Stock being
converted (and if the same are not delivered to the Company on the same date,
the date of delivery of the second of such items) or (B) the date a dividend
payment on the Preferred Stock, which the Company has elected to pay by the
issuance of Common Stock, as contemplated by the Preferred Stock, was due.
d. The Company understands that a delay in the issuance of the
Shares of Common Stock beyond the Delivery Date could result in economic loss to
the Buyer. As compensation to the Buyer for such loss, the Company agrees to pay
late payments to the Buyer for late issuance of Shares upon Conversion in
accordance with the following schedule (where "No. Business Days Late" is
defined as the number of business days beyond two (2) business days from the
Delivery Date):
Late Payment For Each
$10,000 of Preferred Stock
Liquidation Preference or Interest
No. Business Days Late Amount Being Converted
---------------------- ----------------------------------
1 $100
2 $200
3 $300
4 $400
5 $500
6 $600
7 $700
8 $800
9 $900
10 $1,000
>10 $1,000+$200 for each
Business Day Late
beyond 10 days
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The Company shall pay any payments incurred under this Section in immediately
available funds upon demand. Nothing herein shall limit the Buyer's right to
pursue actual damages for the Company's failure to issue and deliver the Common
Stock to the Buyer. Furthermore, in addition to any other remedies which may be
available to the Buyer, in the event that the Company fails for any reason to
effect delivery of such shares of Common Stock within two (2) business days
after the Delivery Date, the Buyer will be entitled to revoke the relevant
Notice of Conversion by delivering a notice to such effect to the Company
whereupon the Company and the Buyer shall each be restored to their respective
positions immediately prior to delivery of such Notice of Conversion.
e. If, by the relevant Delivery Date, the Company fails for
any reason to deliver the Shares to be issued upon conversion of a Preferred
Stock and after such Delivery Date, the holder of the Preferred Stock being
converted (a "Converting Holder") purchases, in an open market transaction or
otherwise, shares of Common Stock (the "Covering Shares") in order to make
delivery in satisfaction of a sale of Common Stock by the Converting Holder (the
"Sold Shares"), which delivery such Converting Holder anticipated to make using
the Shares to be issued upon such conversion (a "Buy-In"), the Company shall pay
to the Converting Holder, in addition to all other amounts contemplated in other
provisions of the Transaction Agreements, and not in lieu thereof, the Buy-In
Adjustment Amount (as defined below). The "Buy-In Adjustment Amount" is the
amount equal to the excess, if any, of (x) the Converting Holder's total
purchase price (including brokerage commissions, if any) for the Covering Shares
over (y) the net proceeds (after brokerage commissions, if any) received by the
Converting Holder from the sale of the Sold Shares. The Company shall pay the
Buy-In Adjustment Amount to the Company in immediately available funds
immediately upon demand by the Converting Holder. By way of illustration and not
in limitation of the foregoing, if the Converting Holder purchases shares of
Common Stock having a total purchase price (including brokerage commissions) of
$11,000 to cover a Buy-In with respect to shares of Common Stock it sold for net
proceeds of $10,000, the Buy-In Adjustment Amount which Company will be required
to pay to the Converting Holder will be $1,000.
f. In lieu of delivering physical certificates representing
the Common Stock issuable upon conversion, provided the Company's transfer agent
is participating in the Depository Trust Company ("DTC") Fast Automated
Securities Transfer program, upon request of the Buyer and its compliance with
the provisions contained in this paragraph, so long as the certificates therefor
do not bear a legend and the Buyer thereof is not obligated to return such
certificate for the placement of a legend thereon, the Company shall use its
best efforts to cause its transfer agent to electronically transmit the Common
Stock issuable upon conversion to the Buyer by crediting the account of Buyer's
Prime Broker with DTC through its Deposit Withdrawal Agent Commission system.
g. The Company will authorize its transfer agent to give
information relating to the Company directly to the Buyer or the Buyer's
representatives upon the
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request of the Buyer or any such representative. The Company will provide the
Buyer with a copy of the authorization so given to the transfer agent.
6. DELIVERY INSTRUCTIONS.
The Initial Preferred Stock or the Additional Preferred Stock,
as the case may be, shall be delivered by the Company to the Escrow Agent
pursuant to Section 1(b) hereof, on a delivery against payment basis, no later
than on the relevant Closing Date. Notwithstanding the foregoing provision or
any other provision hereof to the contrary, the Escrow Agent is authorized and
directed to retain in escrow, out of the Purchase Price proceeds for the Initial
Preferred Stock deposited in escrow with the Escrow Agent, the sum of Five
Hundred Thousand Dollars ($500,000; the "Retained Escrow Amount") until the
Escrow Agent receives written confirmation from counsel to the Company that the
Registration Statement complying with the provisions of the Registration Rights
Agreement (including, without limitation, [x] inclusion of all concepts
specified therein, [y] after affording counsel for the Initial Holder, as
defined in the Registration Rights Agreement the opportunity to review and
comment on the draft of the Registration Statement and [z] not including any
statement therein to which such counsel to the Initial Holder reasonably
objected) has been filed with the SEC (the "Filing Confirmation"). Upon receipt
of the Filing Confirmation by the Escrow Agent, the Escrow Agent shall release
the Retained Escrow Amount to the Company as contemplated by the Joint Escrow
Instructions.
7. CLOSING DATE.
a. The Initial Closing Date shall occur on the date which is
the first NYSE trading day after the fulfillment or waiver of all closing
conditions pursuant to Sections 8 and 9 hereof or such other date and time as is
mutually agreed upon by the Company and the Buyer. The date of an Additional
Closing Date shall be the date specified by either party to other on at least
ten (10) business days' advance notice to the other; provided, however, that it
shall be a condition of such Additional Closing Date that , on or before such
date, each of the conditions contemplated by Section 4(h) and by Sections 8 and
9 hereof shall have either been satisfied or been waived by the party in whose
favor such conditions run.
b. Each closing of the purchase and issuance of Preferred
Stock shall occur on the relevant Closing Date at the offices of the Escrow
Agent and shall take place no later than 12:00 Noon, New York time, on such day
or such other time as is mutually agreed upon by the Company and the Buyer.
c. Notwithstanding anything to the contrary contained herein,
the Escrow Agent will be authorized to release the Escrow Property only upon
satisfaction of the conditions set forth in Sections 8 and 9 hereof. The
Certificates representing the relevant Preferred Stock shall be delivered by the
Company to the Escrow Agent pursuant to Section 1(b) hereof no later than on the
relevant Closing Date.
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8. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell
the Preferred Stock to the Buyer pursuant to this Agreement on the relevant
Closing Date is conditioned upon:
a. The execution and delivery of this Agreement by the Buyer;
b. Delivery by the Buyer to the Escrow Agent of good funds as
payment in full of an amount equal to the purchase price for the relevant
Preferred Stock in accordance with this Agreement;
c. The accuracy on such Closing Date of the representations
and warranties of the Buyer contained in this Agreement, each as if made on such
date, and the performance by the Buyer on or before such date of all covenants
and agreements of the Buyer required to be performed on or before such date; and
d. There shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby, or requiring
any consent or approval which shall not have been obtained.
9. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to
purchase the Preferred Stock on the relevant Closing Date is conditioned upon:
a. The execution and delivery of this Agreement and the
Registration Rights Agreement by the Company;
b. Delivery by the Company to the Escrow Agent of the
Certificate representing the relevant Preferred Stock in accordance with this
Agreement;
c. The accuracy in all material respects on such Closing Date
of the representations and warranties of the Company contained in this
Agreement. each as if made on such date, and the performance by the Company on
or before such date of all covenants and agreements of the Company required to
be performed on or before such date;
d. On such Closing Date, the Registration Rights Agreement
shall be in full force and effect and the Company shall not be in default
thereunder;
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e. On such Closing Date, the Buyer shall have received an
opinion of counsel for the Company, dated such Closing Date, in form, scope and
substance reasonably satisfactory to the Buyer, substantially to the effect set
forth in ANNEX III attached hereto;
f. No statute, rule, regulation, executive order, decree,
ruling or injunction shall be enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction which prohibits or
adversely effects any of the transactions contemplated by this Agreement or the
Transaction Documents, and no proceeding or investigation shall have been
commenced or threatened which may have the effect of prohibiting or adversely
effecting any of the transactions contemplated by this Agreement or the
Transaction Documents;
g. From and after the date hereof to and including the
relevant Closing Date, the trading of the Common Stock shall not have been
suspended by the SEC, or the NASD and trading in securities generally on the New
York Stock Exchange or The NASDAQ/SmallCap Market shall not have been suspended
or limited, nor shall minimum prices been established for securities traded on
The NASDAQ/SmallCap Market, nor shall there be any outbreak or escalation of
hostilities involving the United States or any material adverse change in any
financial market that in either case in the reasonable judgment of the Buyer
makes it impracticable or inadvisable to purchase the relevant Preferred Stock;
and
h. With respect to each Additional Closing Date, each of the
conditions set forth in Section 4(h) hereof shall have either been satisfied or
waived by the Buyer.
10. GOVERNING LAW: MISCELLANEOUS.
a. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the jurisdiction
of the federal courts whose districts encompass any part of the City of New York
or the state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions.
b. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
c. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the
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validity or enforceability of the remainder of this Agreement or the validity
or enforceability of this Agreement in any other jurisdiction.
d. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
e. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
f. A facsimile transmission of this signed Agreement shall be
legal and binding on all parties hereto.
g. This Agreement may be signed in one or more counterparts,
each of which shall be deemed an original.
h. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
i. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
j. This Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement thereof.
k. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
11. NOTICES. Any notice required or permitted hereunder
shall be given in writing (unless otherwise specified herein) and shall be
deemed effectively given on the earliest of
(a) the date delivered, if delivered by personal delivery as
against written receipt therefor or by confirmed facsimile
transmission,
(b) the seventh business day after deposit, postage prepaid,
in the United States Postal Service by registered or
certified mail, or
(c) the third business day after mailing by international
express courier, with delivery costs and fees prepaid,
in each case, addressed to each of the other parties thereunto entitled at the
following addresses (or at such other addresses as such party may designate by
ten (10) days' advance written notice similarly given to each of the other
parties hereto):
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COMPANY: NHANCEMENT TECHNOLOGIES, INC.
00000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
ATTN: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxx Morosoli & Maser
000 Xxxx Xxxx Xxxx, 0xx Xxxxx
Xxxx Xxxx, XX 00000
ATTN: Xxxxx Xxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
BUYER: At the address set forth on the signature page of
this Agreement.
ESCROW AGENT: Xxxxxxx & Prager, Esqs.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No. (000) 000-0000
Telephone No.: (000) 000-0000
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
Company's and the Buyer's representations and warranties herein shall survive
the execution and delivery of this Agreement and the delivery of the Preferred
Stock and payment of the Purchase Price, and shall inure to the benefit of the
Buyer and the Company and their respective successors and assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the Buyer by one of its officers thereunto duly authorized as of the date set
forth below.
NUMBER OF SHARES OF
INITIAL PREFERRED STOCK TO BE PURCHASED: 6,250
AGGREGATE PURCHASE PRICE OF
SUCH INITIAL PREFERRED STOCK: $625,000.00
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this 13th day of April, 1998.
The Endeavour Capital Fund S.A.
---------------------------------- ----------------------------------
Address Printed Name of Subscriber
c/o Endeavor Management Inc.
00/00 Xxxxxx Xxxxx Xx
Xxxxxxxxx 00000 Xxxxxx
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Telecopier No.972-2-582-4443 (Signature of Authorized Person)
Xxxxxx Xxxxxxxxx, Director
Printed Name and Title
BVI
----------------------------------
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Purchase Agreement to be duly executed on its behalf.
NHANCEMENT TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Title: Chief Financial Officer
Date: April 13, 1998
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the Buyer by one of its officers thereunto duly authorized as of the date set
forth below.
NUMBER OF SHARES OF
INITIAL PREFERRED STOCK TO BE PURCHASED: 6,250
AGGREGATE PURCHASE PRICE OF
SUCH INITIAL PREFERRED STOCK: $625,000.00
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this 13th day of April, 1998.
AMRO INTERNATIONAL S.A.
---------------------------------- ----------------------------------
Address Pnted Name of Subscriber
SO ULTRA FINANCE
Gross Munster Xxxxx 00
Xxxxxx XX 0000
Xxxxxxxxxxx
By: /s/ X. X. Xxxxxxxx
----------------------------------
Telecopier No.000-000-000-0000 (Signature of Authorized Person)
X.X. Xxxxxxxx, President/Director
Printed Name and Title
Panama
----------------------------------
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Purchase Agreement to be duly executed on its behalf.
NHANCEMENT TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Xxxxxxx X. Xxxx
Title: Chief Financial Officer
Date: April 13, 1998
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ANNEX I AMENDMENT TO/EXCERPT FROM CERTIFICATE OF
INCORPORATION or CERTIFICATE OF DESIGNATIONS
ANNEX II JOINT ESCROW INSTRUCTIONS
ANNEX III OPINION OF COUNSEL
ANNEX IV REGISTRATION RIGHTS AGREEMENT
ANNEX V COMPANY DISCLOSURE MATERIALS
