Exhibit 99.3
AGREEMENT
This Agreement (the "Agreement") is made as of the 24th day of
February, 2006 by and among Ranor Acquisition LLC, a Delaware limited liability
company with an office c/o Xxxxxx X. Xxxx 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Ranor"), Xxxxxxxxxx Holdings II, Inc., a Delaware corporation having its
offices at Xxx Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Issuer"), the
persons named in Schedule A to this Agreement (each a "Member" and collectively,
the "Members"), having the addresses set forth on said Schedule A.
W I T N E S S E T H:
WHEREAS, Ranor is a party to a stock purchase agreement dated August
17, 2005, by and among Ranor, the stockholders of Ranor, Inc., a Delaware
corporation (the "Company"), and the Company, which agreement, as amended
through the Closing, as hereinafter defined, is referred to as the "Purchase
Agreement," pursuant which Ranor has agreed to acquire all of the issued
outstanding capital stock of the Company (the "Company Stock"), and
WHEREAS, Ranor desires to assign to the Issuer, and the Issuer is
willing (a) to accept the assignment from Ranor of the Purchase Agreement and
(b) to purchase the Company Stock all on and subject to the terms of this
Agreement and the Purchase Agreement; and
WHEREAS, the Issuer is willing to sell shares of series A convertible
preferred stock, par value $.0001 per share, which is a newly-created series of
preferred stock ("Preferred Stock"), to Xxxxxx Partners pursuant to a Preferred
Stock Purchase Agreement (the "Preferred Stock Agreement"), and warrants to
purchase shares of Common Stock, the proceeds of which sale are intended to
provide the Company with a portion of the purchase price payable pursuant to the
Purchase Agreement; and
WHEREAS, the Members constitute all of the members of Ranor, and they
have advanced the sum of $115,000 in on behalf of the Issuer in connection with
the transactions contemplated by the Purchase Agreement and the Preferred Stock
Agreement, desire to purchase an aggregate of 7,697,000 shares (the "New
Shares") of common stock, par value $.0001 per share ("Common Stock") of the
Issuer, and the Issuer is willing to sell the New Shares to the Members; and
WHEREFORE, the parties to hereby agree as follows:
1. Assignment of the Purchase Agreement. Subject to the terms and
conditions of this Agreement, and in reliance upon the representations,
warranties, covenants and agreements contained in this Agreement, at or prior to
the Closing, as hereinafter defined:
(a) Ranor shall assign to the Issuer all of its rights under the
Purchase Agreement.
(b) The Issuer shall accept the assignment of the Purchase Agreement
and perform Ranor's obligations under the Purchase Agreement to purchase the
Company Stock, subject to the Issuer receiving from Ranor or from sources
provided by Ranor funding sufficient to enable the Issuer to perform such
obligations as hereinafter provided.
2. Closing.
(a) The closing of the transactions contemplated hereunder (the
"Closing") on such date and time as Ranor and the Issuer may mutually agree upon
(the "Closing Date"), but in no event shall the Closing be later than February
28, 2006, unless the parties mutually agree to extend the closing deadline to a
later date.
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(b) At the Closing, Ranor will assign the Purchase Agreement to the
Issuer, and the Issuer will accept the assignment and purchase the Company
Stock, subject to the terms of this Agreement, including the receipt by the
Issuer of funding sufficient to enable the Issuer to complete the acquisition
contemplated by the Purchase Agreement.
3. Representations and Warranties of the Members. Each Member hereby
severally represents, warrants, covenants and agrees as follows:
(a) Such Member understands that the offer and sale of the New
Shares is being made only by means of this Agreement and understands that the
Company has not authorized the use of, and the Member confirms that he or she is
not relying upon, any other information, written or oral, other than material
contained in this Agreement. Such Member is aware that the acquisition of the
New Shares involves a high degree of risk and that such Member may sustain, and
has the financial ability to sustain, the loss of his or her entire investment,
understands that no assurance can be given that the Company will be profitable
in the future, that there is no public market for the Common Stock, and the
Issuer can give no assurance that there will ever be a public market for the
Common Stock. Furthermore, in subscribing for the New Shares, such Member
acknowledges it is not relying upon any projections or any statements of any
kind relating to future revenue, earnings, operations or cash flow in making an
executing this Agreement and acquiring the New Shares.
(b) Such Member represents to the Company that he or she is an
accredited investor within the meaning of Rule 501 of the Commission under the
Securities Act of 1933, as amended (the "Securities Act") and it understands the
meaning of the term "accredited investor." The requirements for an accredited
investor as set forth in Exhibit A. Such Member further represents that he or
she has such knowledge and experience in financial and business matters as to
enable the Member to understand the nature and extent of the risks involved in
purchasing the New Shares. Such Member is fully aware that such investments can
and sometimes do result in the loss of the entire investment. Such Member has
engaged his or her own counsel and accountants to the extent that the Member
deems it necessary.
(c) Such Member is acquiring the New Shares pursuant to this
Agreement for his or her own account, for investment and not with a view to the
sale or distribution thereof, for the Member's own account and not on behalf of
others; has not granted any other person any interest or participation in or
right or option to purchase all or any portion of the New Shares; is aware that
the New Shares are restricted securities within the meaning of Rule 144 of the
Commission under the Securities Act, and may not be sold or otherwise
transferred other than pursuant to an effective registration statement or an
exemption from registration; and understands and agrees that the certificates
for the New Shares shall bear the Company's standard investment legend. The
Member understands the meaning of these restrictions.
(d) The Member will not transfer any New Shares except in compliance
with all applicable federal and state securities laws and regulations, and, in
such connection, the Company may request an opinion of counsel reasonably
acceptable to the Company as to the availability of any exemption.
(e) Such Member represents and warrants that no broker or finder was
involved directly or indirectly in connection with his or her purchase of the
New Shares pursuant to this Agreement. Such Member shall indemnify the Company
and hold it harmless from and against any manner of loss, liability, damage or
expense, including fees and expenses of counsel, resulting from a breach of the
Member's warranty contained in this Paragraph 3(f).
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(f) Such Member understands that he or she has no registration
rights with respect to the New Shares except as set forth in Exhibit B to this
Agreement.
(g) Such Member represents and warrants that the address set forth
on Schedule A to this Agreement is its true and correct address, and understands
that the Company will rely on this representation in making filings under state
securities or blue sky laws.
4. Restriction on Sales. No Member may sell any New Shares for a period of
twelve months following the issuance of the New Shares (the "Lock-up Period").
No Member shall sell more than 10% of his or her New Shares in the public market
in the twelve-month period following the expiration of the Lock-up Period or
more than an additional 10% of his or her New Shares during the following
twelve-month period. Any sales that a Member is permitted to make pursuant to
this Section 4 may be made pursuant to either Rule 144 or any registration
statement which may cover such shares. Any transferee of New Shares shall be
subject to the same restrictions as are set forth in this Section 4.
5. Representations and Warranties of Ranor. Ranor hereby makes the
following representations and warranties to the Issuer, none of which shall
survive the Closing:
(a) Ranor has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby and otherwise
to carry out its obligations hereunder, and has the right, under the Purchase
Agreement, to assign its obligations under the Purchase Agreement to the Issuer.
(b) Ranor is a limited liability company organized, existing and in
good standing under the laws of the State of Delaware. Ranor has the power to
own its properties and to carry on its business as now being conducted. Ranor is
not in violation of its operating agreement. No consent, approval or agreement
of any Person is required to be obtained by Ranor in connection with the
execution and performance by Ranor of this Agreement or the execution and
performance by Ranor of any agreements, instruments or other obligations entered
into in connection with this Agreement.
(c) No consent, approval or agreement of any Person is required to
be obtained by Ranor in connection with the execution and performance by Ranor
of this Agreement.
6. Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Members as follows:
(a) General.
(i) The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Issuer does not have any equity investment or other interest, direct or
indirect, in, or any outstanding loans, advances or guarantees to or on behalf
of, any domestic or foreign corporation, limited liability company, association,
partnership, joint venture or other entity.
(ii) Complete and correct copies of the Issuer's certificate
of incorporation and by-laws are available for review on the Xxxxx system
maintained by the U.S. Securities and Exchange Commission (the "Commission").
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(iii) The Issuer has full power and authority to carry out the
transactions provided for in this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of the Issuer, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency and other laws of general application affecting the enforcement of
creditor's rights and except that any remedies in the nature of equitable relief
are in the discretion of the court. All necessary action required to be taken by
the Issuer for the consummation of the transactions contemplated by this
Agreement has been taken.
(iv) The New Shares, when issued pursuant to this Agreement,
will be duly and validly authorized and issued, fully paid and non-assessable.
The issuance of the New Shares to Members is exempt from the registration
requirements of the Securities Act, pursuant to an exemption provided by Section
4(2) thereunder.
(b) SEC Documents. The Issuer is registered pursuant to Section 12
of the Exchange Act and it current with its reporting obligations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). None of the
Issuer's filings made pursuant to the Exchange Act (collectively, the "Issuer
SEC Documents") contains any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Issuer SEC Documents, as of their respective dates, complied
in all material respects with the requirements of the Exchange Act, and the
rules and regulations of the Commission thereunder, and are available on the
Commission's XXXXX system.
7. Conditions to the Obligation of Members and the Issuer. The obligations
of Members and the Issuer under this Agreement are subject to the completion of
the sale of preferred stock and warrants to Xxxxxx Partners pursuant to an
agreement between the Issuer and Xxxxxx Partners prior to or contemporaneously
with the exchange contemplated by this Agreement.
8. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the
parties relating to the subject matter hereof, superseding any and all prior or
contemporaneous oral and prior written agreements, understandings and letters of
intent. This Agreement may not be modified or amended nor may any right be
waived except by a writing which expressly refers to this Agreement, states that
it is a modification, amendment or waiver and is signed by all parties with
respect to a modification or amendment or the party granting the waiver with
respect to a waiver. No course of conduct or dealing and no trade custom or
usage shall modify any provisions of this Agreement.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted assigns.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same document.
(e) The various representations, warranties, and covenants set forth
in this Agreement or in any other writing delivered in connection therewith
shall survive the issuance of the Shares.
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(f) If the Member is a resident of a state set forth in Exhibit C to
this Agreement or if the Member negotiates the purchase of the Shares from or
receives this Agreement while in Florida, the provisions of such Exhibit C
relating to the Member's purchase of the Shares are incorporated as if set forth
in full in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first aforeseaid.
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Xxxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxxxx
REDSTONE CAPITAL CORP.
By:
--------------------------------
Name:
Title:
-----------------------------------
Xxxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxxxxxxxx
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Xxxxxxx Xxxxx
XXXXXXXXXX HOLDINGS II, INC.
By:
--------------------------------
Xxxxxxx Xxxxx, President
RANOR ACQUISITION LLC.
By:
--------------------------------
Xxxxxx X. Xxxx, Manager
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Schedule A
Members
Name and Address No. Shares
---------------- ----------
Xxxxxx X. Xxxx 2,675,300
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Social Security No.
Xxxxx X. Xxxxxx 2,945,300
000 X. Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Social Security No.
Redstone Capital Corporation 250,000
c/o Xxxxxx X. Xxxx
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Taxpayer ID No.
Xxxxxxx Xxxxx 796,000
0 Xxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Social Security No.
Xxxxxx Xxxxx 741,400
Social Security No.
Xxxxx Xxxxxxxxxxx 204,000
Social Security No.
Xxxxxxx Xxxxx 85,000
Social Security No.
Total 7,697,000
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Exhibit A
Accredited investors
A Member who meets any one of the following tests is an accredited investor:
(a) The Member is an individual who has a net worth, or joint net worth
with the Member's spouse, of at least $1,000,000.
(b) The Member is an individual who had individual income of more than
$200,000 (or $300,000 jointly with the Member's spouse) for the past two years,
and the Member has a reasonable expectation of having income of at least
$200,000 (or $300,000 jointly with the Member's spouse) for the current year.
(c) The Member is an officer or director of the Company.
(d) The Member is a bank as defined in section 3(a)(2) of the
Securities Act or any savings and loan association or other institution as
defined in section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity.
(e) The Member is a broker or dealer registered pursuant to section 15
of the Securities Exchange Act of 1934.
(f) The Member is an insurance company as defined in section 2(13) of
the Securities Act.
(g) The Member is an investment company registered under the Investment
Company Act of 1940 or a business development company as defined in section
2(a)(48) of that Act.
(h) The Member is a small Business Investment Company licensed by the
U.S. Small Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958.
(i) The Member is an employee benefit plan within the meaning of Title
I of the Employee Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in section 3(21) of such Act,
which is either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total assets
in excess of $5,000,000 or, if a self-directed plan, with investment decisions
made solely by persons that are accredited investors.
(j) The Member is a private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940.
(k) The Member is an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000.
(l) The Member is a trust, with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of the Commission under the Securities Act.
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(m) The Member is an entity in which all of the equity owners are
accredited investors (i.e., all of the equity owners meet one of the tests for
an accredited investor).
If an individual Member qualifies as an accredited investor, such
individual may purchase the Shares in the name of his or her individual
retirement account ("XXX").
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Exhibit C
State Representations
The following provisions are an integral part of this Agreement if the
Member is a resident of the following state(s).
1. Florida
If the Member is a Florida resident or if the offer or sale occurs in
Florida or if the Disclosure Material is delivered in Florida, the following
shall apply:
Pursuant to Section 517.061(11)(a)(5) of the Florida Statutes, Florida
Members have a three day right to rescission. If a Florida resident has executed
a subscription agreement, he or she may elect, within three business days after
signing the subscription agreement, to withdraw from the subscription agreement
and receive a full refund and return (without interest) of any money paid by him
or her. A Florida resident's withdrawal will be without any further liability to
any person. To accomplish such withdrawal, a Florida resident need only send a
letter or telegram to the issuer at Xxx Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000, Attention of Xx. Xxxxx X. Xxxxxx, Chairman, indicating his or her
intention to withdraw. Such letter or telegram must be sent and postmarked prior
to the end of the aforementioned third business day. If a Florida resident sends
a letter, it is prudent to sent it by certified mail, return receipt requested,
to insure that it is received and also to evidence the time and date when it is
mailed. Should a Florida resident make this request orally, he or she should ask
for written confirmation that his or her request has been received.
2. Pennsylvania
If the Member is a Pennsylvania resident, the following shall apply:
Each person who accepts an offer to purchase securities exempted from
registration by Section 203(d) of the Pennsylvania Securities Act of 1972, as
amended, directly from the issuer or affiliate of the issuer, shall have the
right to withdraw his or her acceptance without incurring any liability to the
seller, underwriter (if any) or any other person within two business days from
the date of receipt by the issuer of his or her written binding contract of
purchase or, in the case of a transaction in which there is no binding contract
of purchase, within two business days after he or she makes the initial payment
for the securities being offered.
Each Pennsylvania subscriber is prohibited from selling his or her
Shares for a period of twelve months from the date of his or her purchase.
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