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EXHIBIT 10.13
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is entered into as of
this 26th day of February 1998 by and among CYCOMM INTERNATIONAL INC., a Wyoming
corporation with offices at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, XxXxxx, Xxxxxxxx
00000 ("Seller") and Xxxxxxxx xx Xxxx Plc, 0 Xxxxxxxxx, Xxxxxx, Xxxxxxx XX0X 0XX
("Buyer").
WITNESSETH:
WHEREAS, Seller desires to sell Twenty (20) shares of its Series B
Convertible Redeemable Preferred Stock, no par value per share ("Series B
Preferred Stock") to Buyer and Buyer desires to purchase from the Seller, the
Series B Preferred Stock on the terms and subject to the conditions contained in
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Purchase and Sale. On the terms and subject to the terms and
conditions of this Agreement, at the Closing referred to in Section 2 of this
Agreement, Seller shall sell and deliver to the Buyer and the Buyer shall
purchase from the Seller, an aggregate of Twenty (20) shares of the Series B
Preferred Stock, for the Purchase Price referred to in Section 3 of this
Agreement. A copy of the Certificate of Designation of the Series B Preferred
Stock is attached as Exhibit A hereto.
2. Closing. The closing of the purchase and sale contemplated by this
Agreement shall take place on or before February 26, 1998 at the offices of
Venable, Baetjer, Xxxxxx & Civiletti, LLP, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx
0000, Xxxxxxxxxx, XX 00000, or at such other date and place as the parties may
mutually agree. The actual date of such closing is referred to herein as the
"Closing." At the Closing, the Seller shall deliver the shares of Series B
Preferred Stock to the Buyer in the number of certificates and for the number of
shares registered in the name of each Buyer, as set forth on Exhibit A hereto,
and the Buyer shall pay to the Seller the Purchase Price referred to in Section
3 of this Agreement.
3. Purchase Price. The Purchase Price for the Series B Preferred Stock
shall be One Million United States Dollars ($1,000,000) in the form of cash or
cash equivalent, in the form of a certified check, bank cashier's check, bank
money order or wire transfer payable to, to the Seller.
4. Representations of the Seller. The Seller hereby represents and
warrants to the Buyer that:
4.1 Due Incorporation, etc. The Seller is duly incorporated,
validly existing and in good standing under the laws of Wyoming and has all
requisite power and authority to execute
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and deliver this Agreement and to perform the obligations to be performed by it
hereunder. Neither the execution or delivery of this Agreement nor the
performance by the Seller hereof will constitute a breach of or default under
the governing instruments of the Seller or any agreement, instrument, indenture,
judgment or decree to which it is a party or by which it is bound. Prior to the
Closing, all consents and approvals, if any, required to be obtained by the
Seller for the sale of the Shares to be sold by it hereunder will have been
obtained.
4.2 Due Execution, Validity and Effect. This Agreement has
been duly authorized, executed and delivered by the Seller and, assuming the due
authorization, execution and delivery by the Buyer, this Agreement constitutes
the valid, legal and binding obligation of the Seller, enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
4.3 Title to the Shares. At Closing, the Seller shall deliver
to the Buyer the shares of Series B Preferred Stock, with legal and valid title
thereto, free and clear of all liens, charges, pledges, claims and encumbrances
of any kind or nature whatsoever, other than those created by this Agreement.
Such shares shall be registered in the name of Willbro Nominees Limited.
4.4 Board Approval. The Board of Directors of the Seller has
duly approved the transactions contemplated by this Agreement and the Seller has
delivered to the Buyer a copy of the certificate of designation reflecting such
approval, certified by the Secretary of the Seller.
4.5 Full Disclosure. No representation or warranty made by the
Seller in this Agreement and no certificate or document furnished or to be
furnished to the Buyer pursuant to this Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
4.6 Certain Fees. The Seller has incurred liability for a fee
of 10% of the Purchase Price payable to Mission Beach Investments Ltd. in
connection with the transactions contemplated by this Agreement for which the
Buyer would not be liable. The Seller agrees to indemnify and hold harmless the
Buyer from and against any commission, fee or claim of any person employed or
retained or claiming to have been employed or retained by the Seller to bring
about the transactions contemplated hereby or to represent the Seller in
connection therewith.
5. Representations of the Buyer. The Buyer hereby represents and
warrants to the Seller that:
5.1 Due Execution, Validity and Effect. This Agreement has
been duly authorized, executed and delivered by the Buyer and, assuming the due
authorization, execution and delivery by the Seller, this Agreement constitutes
the valid, legal and binding obligation of the Buyer, enforceable in accordance
with its terms, except to the extent that enforceability may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
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5.2 Full Disclosure. No representation or warranty made by the
Buyer in this Agreement and no certificate or document furnished or to be
furnished to the Seller pursuant to this Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not
misleading.
5.3 Certain Fees. The Buyer has incurred no liability for any
brokers' or finders' fees or commissions in connection with the transactions
contemplated by this Agreement for which the Seller is or would be liable. The
Buyer agrees to indemnify and hold harmless the Seller from and against any
commission fee or claim of any person employed or retained by the Buyer to bring
about the transactions contemplated hereby or to represent the Buyer in
connection therewith.
6. Securities Act of 1933 and Holding Period.
6.1 Reporting Issuer. The Seller is a "reporting issuer" as
defined in Regulation S under the United States ("US") Securities Act of 1933
(the "1933 Act"). The Seller warrants that, based only on the facts with respect
to the Buyer set forth in Section 6.3, upon expiration of the Restricted Period
set forth in Regulation S, the offer and sale of any or all of the shares of
Series B Preferred Stock, or any of the shares of Common Stock into which such
Stock is convertible, by the Buyer in the United States or to a United States
person, as defined in Regulation S, will be exempt from the registration
requirements of the 1933 Act as defined in Regulations in accordance with
Section 4(1) thereof.
6.2 Regulation S and Regulation D. The Buyer understands that
the Shares acquired pursuant to this Agreement have not been registered under
the 1933 Act with the United States Securities and Exchange Commission in
reliance upon the exemption from such registration requirements afforded by
either Regulation S or Regulation D under the 1933 Act, governing either the
offer and sale of securities that occur outside the United States or
transactions by an issuer not involving any public offering, respectively, nor
with any state securities commission. The Buyer agrees that there shall be
imprinted an appropriate restrictive transfer legend on the face of the
certificates of the shares of Series B Preferred Stock, and of the shares of
Common Stock into which such Stock is convertible.
6.3 US Person. The Buyer hereby represents and warrants that
the Buyer is not a national or resident of the United States and is not
otherwise deemed to be a "US person" within the meaning of Regulation S under
the 1933 Act.
6.4 Accredited Investor. The Buyer hereby represents and
warrants that the Buyer is an "accredited investor" within the meaning of
Regulation D under the 1933 Act.
6.5 Resales. The Buyer understands and agrees that any
disposition of the shares of Series B Preferred Stock, or of the shares of
Common Stock into which such Stock is convertible, in violation of either this
Agreement, Regulation S or Regulation D shall be null and
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void, and that no transfer of the Shares shall be made by the Seller's secretary
or transfer agent upon the Seller's stock transfer books unless, in the opinion
of counsel satisfactory to Seller, there has been compliance with the terms of
this Agreement, Regulation S or Regulation D. The Buyer also understands and
agrees that the Seller shall issue stop transfer instructions to the Seller's
transfer agent with respect to the transfer restrictions.
6.6 The Securities Act of 1933. The Buyer (i) acknowledge that
the Shares of Series B Preferred Stock have not been registered under the 1933
Act and that the shares of Common Stock into which such Stock is convertible
also have not been registered under the 1933 Act, (ii) represents and warrants
that the Buyer is acquiring and will acquire beneficial ownership of shares for
its own account, and (iii) agrees that the Buyer will not transfer or otherwise
dispose of any of the Shares unless such transfer or other disposition is
registered under the 1933 Act or, in the opinion of counsel satisfactory to the
Seller, is exempt from such registration. The Buyer represents and warrants,
further, that by reason of the Buyer's knowledge and experience in financial and
business matters the Buyer is capable of evaluating the merits and risks of
their purchase hereunder and that the Buyer has had available such information
with respect to Seller as deemed necessary or appropriate to make such
evaluation.
6.7 Registration. The Seller shall file a registration
statement on Form S-3 of the U.S. Securities and Exchange Commission ("SEC") to
register the shares of Common Stock deliverable upon the conversion of the
Series B Preferred Stock immediately following the Closing. In the event such
Form S-3 registration statement is not effective within 90 days after Closing,
the holder of Series B Preferred Stock may resell such shares pursuant to the
provisions of Regulation S of the 1933 Act.
7. Conditions to Obligations of the Seller. All obligations of the
Seller under this Agreement are subject to the fulfillment or satisfaction,
prior to or at Closing, of each of the following conditions precedent (all of
which may be waived by the Seller):
(a) each of the representations and warranties of the Buyer
herein being true and correct in all material respects on the date hereof and as
of the Closing, and the Buyer's having performed or complied with all agreements
and covenants contained in this Agreement to be performed or complied with by
them prior to or at the Closing;
(b) neither the Seller nor the Buyer's being precluded by an
order or preliminary or permanent injunction of a court of competent
jurisdiction from consummating the sale and purchase of the shares of Series B
Preferred Stock pursuant to this Agreement (each party agreeing to use its
reasonable best efforts to have any such injunction lifted); and
(c) there not having been any statute, rule or regulation
enacted or promulgated by any governmental body or agency after the date hereof
which is applicable to the purchase and sale pursuant to this Agreement which
would render the consummation of any such purchase and sale illegal.
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8. Conditions to Obligations of the Buyer. All obligations of the Buyer
under this Agreement are subject to the fulfillment or satisfaction prior to or
at Closing, of each of the following conditions precedent (all of which may be
waived by the Buyer):
(a) each of the representations and warranties of the Seller
herein being true and correct in all material respects on the date hereof and as
of the Closing, and the Seller having performed or complied with all agreements
and covenants contained in this Agreement to be performed or complied with by it
prior to the Closing;
(b) neither the Seller nor the Buyer's being precluded by an
order or preliminary or permanent injunction of a court of competent
jurisdiction from consummating the sale or purchase of the Shares, pursuant to
this Agreement (each party agreeing to use its reasonable best efforts to have
any such injunction lifted);
(c) there not having been any statute, rule or regulation
enacted or promulgated by any governmental body or agency after the date hereof
which is applicable to the purchase and sale of the Shares, pursuant to this
Agreement which would render the consummation of any such purchase and sale
illegal; and
(d) the Seller shall have delivered to the Buyer a certified
copy of the resolution of its Board of Directors, in form reasonably
satisfactory to the Buyer, authorizing the execution and delivery of this
Agreement and the performance by the Seller of its obligations hereunder.
9. Survival of Representation. etc. All representations, warranties and
agreements made herein shall survive any investigation made by the Seller and
the Buyer and shall survive the Closing.
10. Termination. This Agreement may be terminated:
(a) on the date specified in a writing executed by the Seller
and the Buyer;
(b) by the Seller, upon written notice to the Buyer, if any
representation or warranty made in this Agreement by the Buyer shall have been
false or incorrect in any material respect when made or shall have become false
or incorrect in any material respect thereafter, or if the Buyer shall fail to
perform or observe any material covenant or agreement made by the Buyer in this
Agreement; or
(c) by the Buyer, upon written notice to the Seller, if any
representation or warranty made in this Agreement by the Seller shall have false
or incorrect in any material respect when made or shall have become false or
incorrect in any material respect thereafter, or if the Seller shall fail to
perform or observe any material covenant or agreement made by it in this
Agreement.
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11. Miscellaneous.
11.1 Binding Effect: Assignment. This Agreement shall inure to
the benefit of and be binding upon the parties hereto, their respective legal
representatives and successors. This Agreement may not be assigned.
11.2 Further Assurances, Cooperation. Each party shall, upon
reasonable request by the other party, execute and deliver any additional
documents necessary or desirable to complete the sale, conveyance, transfer and
assignment of the Shares acquired by the Buyer, pursuant to and in the manner
contemplated by this Agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this Agreement.
11.3 Entire Agreement: Absence of Representation. This
Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior arrangements, understandings and agreements, oral or
written, between the parties hereto with respect to the subject matter hereof.
The Buyer hereby acknowledges that in acquiring the Shares to be acquired
hereunder the Buyer has relied only upon the representations and warranties
expressly made in this Agreement and upon information contained in public
reports of the Seller, and that no other statements, representations or
warranties, oral or written, expressed or implied, have been made or relied upon
in connection with such acquisition or as an inducement therefor.
11.4 Execution in Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original and all of which
shall be deemed to be one and the same instrument.
11.5 Notices. All notices, requests, permissions, waivers and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by telegram, telex, facsimile transmission
or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties at the following respective addresses or to
such other address as any party hereto shall specify in a notice to the other
parties hereto in accordance with the terms hereof:
If to the Seller: Cycomm International Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, President
Facsimile Transmission: 000-000-0000
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With a copy (which shall not constitute notice) to:
Venable, Baetjer, Xxxxxx & Xxxxxxxxx, LLP
0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile Transmission: 000-000-0000
If to the Buyer: Xxxxxxxx xx Xxxx Plc
0 Xxxxxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention:
Facsimile Transmission: 011-441-71-588-8797
11.6 Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the party against whom enforcement of any such modification or amendment is
sought. The Seller may, by an instrument in writing, waive compliance by the
Buyer with any term or provision of this Agreement on the part of the Buyer to
be performed or complied with. The Buyer may, by an instrument in writing, waive
compliance by the Seller, with any term or provision of this Agreement on the
part of the Seller to be performed or complied with. Any waiver of a breach of
any term or provision of this Agreement shall not be construed as a waiver of
any subsequent breach.
11.7 Headings; Severability. The headings contained in this
Agreement are for convenience of reference only and shall not affect the
interpretation or construction hereof. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
11.8 Governing Law. This Agreement shall be construed (both as
to validity and performance) and enforced in accordance with and governed by the
laws of the District of Columbia applicable to agreements made and to be
performed wholly within such jurisdiction and without regard to conflicts of
laws. The Buyer hereby irrevocably consents to personal jurisdiction within the
District of Columbia solely for the purpose of any litigation with respect to
this Agreement and hereby confirms that upon service of process upon the Buyer,
the Buyer shall be deemed to be under the personal jurisdiction of the
applicable United States federal or local court in the District of Columbia. The
Buyer hereby waives any right it may have to seek a change of venue of such
proceedings.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
SELLER:
CYCOMM INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx, President
BUYER:
Xxxxxxxx xx Xxxx Plc
By: /s/ Xxxxxxxx xx Xxxx Plc
-----------------------------------
Director
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CERTIFICATE OF DESIGNATION
OF
CYCOMM INTERNATIONAL INC.
CYCOMM INTERNATIONAL INC., a corporation organized and existing under
the State of Wyoming, desiring to state the designations, powers, voting rights,
qualifications, limitations, and other special rights, if any, of a Series B of
its class of shares, referred to as Series B Preferred Stock, hereby certifies
as follow:
1. The name of the corporation is CYCOMM INTERNATIONAL INC.
2. The resolution creating and designating the Series B of shares of
the corporation's Preferred Stock, no par value per share, and fixing and
determining the relative rights and preferences thereof is set forth in full in
Exhibit A attached hereto and made a part hereof by reference.
3. The aggregate number of shares of such Series B established and
designated by such resolution is twenty (20) shares.
4. The resolution set forth on the attached Exhibit A was duly adopted
on February 19, 1998 at a meeting of the Board of Directors duly called and held
in accordance with the Wyoming Business Corporation Act.
IN WITNESS WHEREOF, said CYCOMM INTERNATIONAL INC. has caused this
Certificate to be signed by Xxxxxx X. Xxxx, its President and Chief Executive
Officer, and attested by Xxxxxxx X. Xxxxx, its Assistant Secretary, this 26th
day of February, 1998.
Attest: CYCOMM INTERNATIONAL INC.
/s/ Xxxxxxx X. Xxxxx By: Xxxxxx X. Xxxx
------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxx, Assistant Secretary Xxxxxx X. Xxxx, President and
Chief Executive Officer
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EXHIBIT A
TO THE
CERTIFICATE OF DESIGNATION
OF THE
SERIES B PREFERRED STOCK
OF
CYCOMM INTERNATIONAL INC.
I, Xxxxxx X. Xxxx, President and Chief Executive Officer of CYCOMM
INTERNATIONAL INC. (the "Corporation"), a corporation organized and existing
under and by virtue of the Wyoming Business Corporation Act, DO HEREBY CERTIFY:
That, pursuant to the authority conferred upon the Board of Directors,
said Articles of Incorporation, as amended, of the Corporation, said Board of
Directors, at a special meeting duly called and held in accordance with the
Wyoming Business Corporation Act on February 19, 1998, adopted a resolution
providing for the creation and designation of a Series B of preferred stock
which resolution is as follows:
RESOLVED that, pursuant to the Articles of Incorporation of the
Corporation, as amended, there be and hereby is created a Series B of preferred
stock, to consist of twenty (20) shares, no par value per share. The
designations, powers, preferences and relative, optional or other special
rights, and the qualifications, limitations and restrictions thereof in respect
of the Series B of Convertible Redeemable Preferred Stock are as follows:
1. Designation and Number of Shares. The designation of its Series B of
Twenty (20) shares of Convertible Redeemable Preferred Stock, no par value per
share, created by the Board of Directors of the Corporation pursuant to the
authority granted to it by the Corporation's Articles of Incorporation, as
amended, is "Series B Convertible Redeemable Preferred Stock". The Corporation
shall not issue or designate any additional shares of Series B Convertible
Redeemable Preferred Stock ("Series B Preferred Stock") without the approval of
the holders thereof as provided in Section 3 hereof. The Series B Preferred
Stock shall have a Conversion Value, as defined, of $50,000 per share.
2. Dividends. At the time of conversion as provided in Section 5
hereof, the holder of each share of Series B Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors of the Corporation
out of funds legally available for that purpose, dividends at the rate of ten
percent (10%) of the Conversion Value per share per annum; such dividends to be
cumulative from the date of original issuance and to be payable pro rata for
partial year periods. Such dividends may be payable, at the option of the
Corporation, in shares of its Common Stock, at the rate set forth in Section
5(a). In no event, so long as any shares of the Series B Preferred Stock shall
be outstanding, shall the Corporation issue any shares of preferred stock which
do not rank junior to or on a parity with the Series B Preferred Stock as to
rights to dividends, nor shall
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any dividend, whether in cash or property, be paid or declared, nor shall any
distribution be made, on any shares of the common stock, no par value per share,
of the Corporation's Common Stock or any other shares of stock of the
Corporation ranking junior to or on a parity with the Series B Preferred Stock
as to rights to acquire, or permit any subsidiary to purchase or otherwise
acquire any such common, junior or parity shares unless all accrued and unpaid
dividends on the Series B Preferred Stock and any shares of stock of the
Corporation ranking on a parity with the Series B Preferred Stock shall have
been paid, or declared and a sum sufficient for the payment thereof set apart.
The provisions of the preceding sentence shall not, however, apply to a dividend
payable in shares of Common Stock of the Corporation or other shares of stock of
the Corporation ranking junior to the Series B Preferred Stock, or to the
acquisition of any such Common Stock or junior stock through a conversion or any
exchange involving the issuance of Common Stock of the Corporation or of any
other shares of stock of the Corporation ranking junior to the Series B
Preferred Stock.
3. Voting Rights.
(a) Except as otherwise provided in subsections (b) and (c) of
this Section 3, and except as otherwise required by applicable law, the
Corporation's Articles of Incorporation or subsequent resolution of the Board,
the holders of the Series B Preferred Stock shall have no voting rights with
respect to any vote of the stockholders of the Corporation.
(b) Notwithstanding the foregoing, if (i) at any time the
Corporation shall fail to pay, or declare and set apart for payment, full
accrued dividends pursuant to Section 2 hereunder on all outstanding shares of
the Series B Preferred Stock and such dividends shall have been in arrears and
unpaid for sixty (60) days or more, or (ii) the Corporation shall for any reason
fail to redeem any shares of Series B Preferred Stock pursuant to the mandatory
redemption provisions of Section 4(b) hereof or shall in connection with any
such redemption fail timely to pay the Redemption Price, each holder of the
Series B Preferred Stock shall be entitled to such number of votes per share of
Series B Preferred Stock as shall equal the number of shares of the Common Stock
of the Corporation (rounded up to the nearest whole number of shares) into which
each share of Series B Preferred Stock is then convertible pursuant to Section 5
hereunder, and each share of Series B Preferred Stock shall be entitled to vote
on all matters as to which holders of Common Stock shall be entitled to vote, in
the same manner and with the same effect as such holders of Common Stock, voting
together with the holders of Common Stock as one class. At such time as the
Corporation has paid to the holders of Series B Preferred Stock all dividends
accrued and owing, such holders shall cease to have the voting rights provided
in clause (i) of the foregoing sentence by virtue of their ownership of shares
of Series B Preferred Stock. The voting rights of the holders of Series B
Preferred Stock provided in clause (ii) of the first sentence of this subsection
(b) shall be in addition to all other rights and remedies of such holders in
connection with the failure of the Corporation referred to therein.
(c) Holders of Series B Preferred Stock shall vote as a
separate class on, and the affirmative vote of a majority of the outstanding
shares of Series B Preferred Stock shall be required to authorize, any action
which would: (i) in any manner increase the number of authorized shares of
Series B Preferred Stock, or alter or change the qualifications, limitations or
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restrictions of the Series B Preferred Stock; or (ii) reclassify the shares of
Common Stock or any restrictions of the Series B Preferred Stock; or (ii)
reclassify the shares of Common Stock or any other shares of class or Series B
of capital stock hereafter created junior to the Series B Preferred Stock into
shares of any class or Series B of capital stock (i) ranking, either as to
payment of dividends, distribution of assets or redemptions, prior to or on a
parity with the Series B Preferred stock, or (ii) which in any manner adversely
affects the holders of the Series B Preferred Stock.
(d) The special voting rights of the holders of the Series B
Preferred Stock contained in subsections (b) and (c) of this Section 3 may be
exercised either at a special meeting of the holders of Series B Preferred Stock
or at any annual or special meeting of the stockholders of the Corporation or by
written consent of such holders in lieu of a meeting.
4. Redemption
(a) Subject to the provisions of subsections (g) and (h) of
this Section 4, upon not less than thirty (30) days prior written notice given
as provided in subsection (c) of this Section 4, and so long as any shares of
the Series B Preferred Stock shall be outstanding, the Corporation may (unless
otherwise prevented by law) redeem any or all shares of Series B Preferred Stock
at the redemption price per share equal to the Conversion Value (as hereinafter
defined) (the "Redemption Price"). Such redemption shall occur on the date
specified in the notice thereof given pursuant to subsection (d) of this Section
4, which shall not be less than 30 days nor more than 60 days after the giving
of such notice (the "Redemption Date"). The Redemption Price shall be paid in
cash.
(b) On and after the date on which any shares of Series B
Preferred Stock are redeemed pursuant to subsections (a) and (c) of this Section
4 and the payment of the Redemption Price therefor, all rights in respect of the
shares of Series B Preferred Stock so redeemed shall cease and terminate; and
such shares shall no longer be deemed to be outstanding, whether or not the
Certificates representing such shares have been received by the Corporation.
(c) Notice of any Redemption Date shall be sent by
first-class mail, postage prepaid, to the holders of record of the outstanding
shares of Series B Preferred Stock to be redeemed at their respective addresses
as the same shall appear on the books of the Corporation Such notice shall be
mailed not less than 30 nor more than 60 days in advance of the Redemption Date.
On the Redemption Date, the holders of record of shares of Series B Preferred
Stock to be redeemed shall be entitled to receive the applicable Redemption
Price upon actual delivery to the Corporation or its agent of the certificates
representing the shares to be redeemed.
(d) In any case in which less than all of the shares of the
Series B Preferred Stock shall be redeemed, the Corporation shall select those
to be redeemed by lot or a substantially equivalent method.
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(f) No shares of Series B Preferred Stock shall be entitled
to the benefit of a sinking fund or purchase fund.
(g) In the event that the Common Stock trades at or below
$1.50 at the time of conversion, the Corporation has the right to redeem the
shares of Series B Preferred Stock at a premium of 18% over the Conversion
Value.
(h) Unless otherwise provided in subsection (g) of this
Section 4, the holders of shares of Series B Preferred Stock to be redeemed in
accordance with this Section 4 shall have the right, exercisable at any time up
to the close of business on the Redemption Date (unless default shall be made by
the Corporation in the payment of the Redemption Price as herein provided, in
which event such right shall be exercisable until such default is cured), to
convert all of such shares into shares of Common Stock pursuant to Section 5
hereof.
5. Conversion into Common Stock
(a) The holder of any Shares of Series B Preferred Stock
shall have the right at such holder's option, unless and until such shares shall
have been redeemed pursuant to Section 4 above, by the giving of written notice
thereof to the Corporation, which written notice shall have been received by the
Corporation prior to the Redemption Date established pursuant to Section 4(a)
hereof or such later date as may be determined pursuant to Section (4) hereof
(the date of receipt of notice pursuant to this subsection being referred to
herein as the "Conversion Date"), to convert up to 25% of such shares of Series
B Preferred Stock on or after the 90th day after February 26, 1998 ("Closing"),
and up to a further 25% every 30 days thereafter; unless the Common Stock trades
at or below $1.50 at the Conversion Date and the Corporation does not redeem the
Series B Preferred Stock pursuant to Section 4, in which case the holder of any
Shares of Series B Preferred Stock may convert only a maximum of 10% of the
principal invested during a period of consecutive 20 day intervals, into such
number of fully paid and nonassessable shares of Common Stock obtained by
multiplying the Conversion Value per share of Series B Preferred Stock by the
number of shares of Series B Preferred Stock being converted, and dividing such
product by the Conversion Price (as then in effect). The Conversion Price per
share at which shares of Common Stock shall be issuable upon conversion of
shares of Series B Preferred Stock shall be, subject to adjustment as provided
in this Section 5, equal to the lesser of (a) the five-day average closing bid
price of the Common Stock prior to February 26, 1998 or (b) a 15% discount of
the five-day average closing bid price of the Common Stock immediately prior to
the notice of conversion. The holder of any shares of Series B Preferred Stock
converted into shares of Common Stock pursuant to this Section 5 shall be
entitled to payment of all accrued but unpaid dividends, if any, payable with
respect to such shares being converted up to and including the Conversion Date.
(b) In order to exercise the right of conversion of the
Series B Preferred Stock pursuant to subsection (a) of this Section 5, the
holder of any shares of Series B Preferred Stock shall deliver to the
Corporation during regular business hours, at the office of any transfer agent
of the Corporation for the Series B Preferred Stock, at the principal office of
the Corporation or at such other place as may be designated by the Corporation,
the certificate or
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certificates for the shares to be converted, duly endorsed or assigned in blank
or to the Corporation (if required by it), accompanied by written notice stating
the name or names (with address) in which the certificate or certificates for
the shares of Common Stock issuable upon such conversion are to be issued. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
or upon the written order of such holder, to the place designated by such
holder, a certificate or certificates for the number of full shares of Common
Stock to which such holder is entitled, a check or cash in respect of any
fractional interest in a share of Common Stock as provided in subsection (c) of
this Section 5 and, to the extent permissible under law, a check or cash in
payment of all accrued but unpaid dividends, if any, payable in payment of all
accrued but unpaid dividends, if any, with respect to the shares of Series B
Preferred Stock so converted up to and including the Conversion Date. The person
in whose name the certificate or certificates for Common Stock are to be issued
shall be deemed to have become a stockholder of record on the applicable
Conversion Date unless the transfer books of the Corporation are closed on that
date, in which event he shall be deemed to have become a stockholder of record
on the next succeeding date on which the transfer books are open, but the
Conversion Price for the Series B Preferred Stock shall be that in effect on the
Conversion Date.
(c) No fractional shares of Common Stock or scrip shall be
issued upon conversion of shares of Series B Preferred Stock. If more than one
share of Series B Preferred Stock shall be surrendered for conversion at any one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
fractional shares of Common Stock so surrendered. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of any
shares of Series B Preferred Stock, the Corporation shall pay a cash adjustment
in respect of such fractional interest in any amount equal to the Conversion
Price then in effect per share of Common Stock multiplied by such fractional
interest.
(d) The Corporation shall pay all documentary, stamp or other
transactional taxes attributable to the issuance or delivery of shares of Common
Stock of the Corporation upon conversion of shares of Series B Preferred Stock;
provided, however, that the Corporation shall not be required to pay any taxes
which may be payable in respect of any transfer involved in the issuance or
delivery of any certificate for such shares in a name other than that of the
holder of the shares of Series B Preferred Stock in respect of which such shares
are being issued.
(e) The Corporation shall at all times reserve and keep
reserved, free from preemptive rights, out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of the
shares of Series B Preferred Stock, sufficient shares of Common Stock to provide
for the conversion of all outstanding shares of Series B Preferred Stock.
(f) All shares of Common Stock which may be issued in
connection with the conversion provisions set forth herein will, upon issuance
by the Corporation, be validly issued, fully paid and nonassessable with no
personal liability attaching to the ownership thereof and free from all taxes,
liens or charges with respect thereto.
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(g) (i) If at any time or from time to time while shares of
Series B Preferred Stock are outstanding the Corporation effects a subdivision
of the outstanding Common Stock, the Conversion Price then in effect immediately
before that subdivision shall be proportionately decreased, and conversely, if
at any time or from time to time while shares of Series B Preferred Stock are
outstanding the Corporation combines the outstanding shares of Common Stock, the
Conversion Price then in effect immediately before the combination shall be
proportionately increased. Any adjustment under this clause shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
(ii) If at any time or from time to time while shares of
Series B Preferred Stock are outstanding, the Corporation makes or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in shares of Common Stock,
then and in each event the Conversion Price then in effect shall be decreased as
of the time of such dividend or other distribution or, in the event such a
record date is fixed, as of the close of business on such record date, by
multiplying the Conversion Price then in effect by a fraction (a) the numerator
of which is the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or the close of business on such
record date, and (b) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time of
such dividend or other distribution or the close of business on such record date
plus the number of shares of Common Stock issuable in payment of such dividend
or distribution; provided, however, that if such record date is fixed and such
dividend is not fully paid or if such distribution is not fully made on the date
fixed therefore, the Conversion Price shall be recomputed accordingly as of the
close of business on such record date and thereafter the Conversion Price shall
be adjusted pursuant to this subsection 5(g) as of the time of actual payment of
such dividend or distribution.
(iii) If at any time or from time to time while shares of
the Series B Preferred Stock are outstanding the Corporation makes, or fixes a
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the
Corporation other than shares of Common Stock, then in each such event provision
shall be made so that each holder of shares of Series B Preferred Stock shall
receive upon conversion thereof, in addition to the number of shares of Common
Stock receivable thereupon, the amount of securities of this Corporation which
they would have received had the Series B Preferred Stock been converted into
Common Stock on the date of such event and had they thereafter, during the
period from the date of such event to and including the date of conversion,
retained such securities receivable by them as aforesaid during such period,
subject to all other adjustments called for during such period under this
subsection 5(g) with respect to the rights of the holders of Series B Preferred
Stock.
(iv) If the Common Stock issuable upon the conversion of
the Series B Preferred Stock is changed into the same or a different number of
shares of any class or classes of shares, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend or a reorganization, provided for elsewhere in this subsection
5(g), then and in any such event each holder of Series B Preferred Stock shall
have the
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right thereafter to convert each share of Series B Preferred Stock into the kind
and amount of subsection 5(g), then and in any such event each holder of Series
B Preferred Stock shall have the right thereafter to convert each share of
Series B Preferred Stock into the kind and amount of shares and other securities
and property receivable upon such reorganization, reclassification or other
change, by holders of the number of shares of Common Stock into which each share
of Series B Preferred Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustments
as provided herein.
(v) If at any time or from time to time while shares of the
Series B Preferred Stock are outstanding there is a capital reorganization of
the Common Stock (other than a recapitalization, subdivision, combination,
reclassification or exchange of shares provided for elsewhere in this subsection
5(g)), then, as a part of such reorganization, provision shall be made so that
the holders of Series B Preferred Stock shall thereafter be entitled to receive
upon conversion of each share of Series B Preferred Stock, the number of shares
or other securities or property of the Corporation, to which a holder of Common
Stock deliverable upon conversion would have been entitled on such capital
reorganization. In any such case, appropriate adjustment shall be made in the
application of the provisions of this subsection 5(g) with respect to the rights
of holders of Series B Preferred Stock after the reorganization to the end that
the provisions of this subsection 5(g) (including adjustment of the Conversion
Price then in effect and number of shares purchasable upon conversion) shall be
applicable after that event and be as nearly equivalent to the provisions hereof
as may be practicable.
(vi) The Corporation will not, by amendment of its Articles
of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by it but will at all times in
good faith assist in the carrying out of all the provisions of this subsection
5(g) and in the taking of all such action as may be necessary or appropriate in
order to protect the conversion rights of the holders of shares of Series B
Preferred Stock.
(vii) For the purpose of this subsection 5(g), the term
"Common Stock" shall mean the Common Stock of the Corporation so designated in
accordance with the Articles of Incorporation of the Corporation and any other
class of shares resulting from successive changes or reclassifications of the
Common Stock consisting solely of changes in par value.
6. Rights on Liquidation Dissolution, Winding Up. So long as any shares
of the Series B Preferred Stock shall be outstanding, the Corporation shall not
issue any shares of preferred stock which do not rank junior to or on a parity
with the Series B Preferred Stock as to rights upon liquidation, dissolution or
winding up. In the event of any liquidation (whether voluntary or involuntary),
dissolution or winding up of the Corporation, the holders of shares of Series B
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders, whether from
capital surplus or earnings, before any payment shall be made to the holders of
any stock ranking on liquidation junior to the Series B Preferred Stock, an
amount per share equal to the Conversion Value per shares thereof, plus an
amount equal to accrued but unpaid dividends, if any, to the date of
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payment. If upon any liquidation, dissolution or winding up of the Corporation,
the assets of the Corporation available for distribution to its stockholders
shall be insufficient to pay the holders of shares of Series B Preferred Stock
and any stock ranking on a parity with the Series B Preferred Stock as to rights
upon liquidation, dissolution or winding up, the full amounts to which they
respectively shall be entitled, the holders of shares of the Series B Preferred
Stock and of such parity stock shall share ratably, in accordance with the
respective amounts which would have been payable on such shares if all amounts
payable thereon were paid in full, in any distribution of assets. In the event
of any liquidation, dissolution or winding up of the Corporation, after payment
shall have been made to the holders of shares of the Series B Preferred Stock
and such parity stock of the full amount to which they shall be entitled as
aforesaid, the holders of any class or classes of stock ranking on liquidation
junior to the Series B Preferred Stock shall be entitled, to the exclusion of
and without participation by the holders of shares of Series B Preferred Stock,
to share, according to their respective rights and preferences, in all remaining
assets of the Corporation available for distribution to its stockholders.
7. No Preemptive Rights. No holder of the Series B Preferred Stock
shall, as such holder, be entitled as of right to purchase or subscribe for any
shares of stock of the Corporation of any class or any Series B now or hereafter
authorized or any securities convertible into or exchangeable for any shares, or
any warrants, options, rights or other instruments evidencing rights to
subscribe for or purchase any such shares, whether such shares, securities,
warrants, options, rights or other instruments be unissued or issued and
thereafter acquired by the Corporation.
8. Transfer Agent and Registrar. The Corporation may appoint a transfer
agent and registrar for the issuance, transfer and conversion of the Series B
Preferred Stock and for the payment of interest to the holders of the Series B
Preferred Stock.
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IN WITNESS WHEREOF, the undersigned has hereunto signed his name and
affirms that the statements made herein are true under penalties of perjury this
26th day of February, 1998.
/s/ Xxxxxx X Xxxx
------------------------------------
Xxxxxx X. Xxxx, President and
Chief Executive Officer
Attest:
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx, Assistant Secretary
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