REDEMPTION AGREEMENT
This Redemption Agreement, dated as of April 3, 2001, is by
and among Xxxxxx XxXxxx, a New York resident with an address at 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("XxXxxx"), Equilink Capital
Partners, LLC, a New York limited liability company, having its principal place
of business at 000 Xxxxxxx Xxxxxx - 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Equilink"), and Surge Components, Inc., a New York corporation having its
principal place of business at 0000 Xxxxx Xxxxxxxxx, Xxxx Xxxx, Xxx Xxxx 00000
("Surge").
WITNESSETH:
WHEREAS, pursuant to an Investment Banking Agreement,
dated as of November 24, 2000 (the "IBA"), between Surge and Equilink,
as amended and modified by a letter agreement, dated as of December 4,
2000 (the "Letter Agreement;" and, together with the IBA, the "Equilink
Agreements"), (a) Surge issued to Equilink (as XxXxxx'x designee)
423,000 shares (each, a "Surge Common Share") of the common stock, par
value $.001 per share (the "Common Stock"), of Surge and (b) Surge
issued to XxXxxx 14,000 shares (each, a "Surge Preferred Share") of the
Non-Voting Redeemable Convertible Series C Preferred Stock, par value
$.001 per share (the "Series C Preferred Stock"), of Surge and 750,000
warrants (each, a "Surge Warrant"), each Surge Warrant entitling its
holder to purchase one share of Common Stock at a purchase price of
$3.00 per share and expiring on November 24, 2005; and
WHEREAS, XxXxxx is the President and sole
equity owner of Equilink; and
WHEREAS, XxXxxx has transferred and assigned to
Equilink 8,000 Surge Preferred Shares; and
WHEREAS, Equilink and XxXxxx have previously made
claims for damages caused by Surge; and
WHEREAS, Surge denies all such claims of Equilink and
XxXxxx, but seeks to settle such claims and to continue to receive the
benefit of Equilink's and XxXxxx'x investment banking services, and has
agreed to purchase from Equilink certain Surge securities owned by
Equilink consistent with fair market evaluations and in accordance with
the terms and conditions of this Redemption Agreement; and
WHEREAS, Equilink is desirous of selling certain of
the Surge Common Shares and Surge Preferred Shares (collectively, the
"Redemption Securities"), Surge is desirous of purchasing and redeeming
the Redemption Securities, and Equilink is amenable to such sale,
purchase and redemption, all in accordance with the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows.
Section 1. Sale and Delivery of Limited Partnership Interests; Consideration.
(a) At the "Closing" (as such term is hereinafter defined), (i)
Equilink shall sell, transfer, assign and deliver to Surge the Redemption
Securities and (ii) Surge shall purchase, accept and pay for the Redemption
Securities.
(b) The amount of consideration (the "Consideration") to be paid by
Surge to Equilink at the Closing for the purchase and redemption of the
Redemption Securities shall be $650,000.00.
(c) The Redemption Securities to be sold, transferred, assigned and
delivered by Equilink to Surge at the Closing shall consist of 423,000 Surge
Common Shares and 8,000 Surge Preferred Shares. The determination of the amount
of Redemption Securities was calculated based upon a purchase price for the
Surge Common Shares equal to approximately 95% of the average per share closing
price (the "Average Per Share Price") of the Common Stock, as reported by The
Nasdaq Stock Market, Inc., for the five trading days ending on April 2, 2001,
the trading date immediately preceding the date of this Agreement, and a
purchase price for the Surge Preferred Shares equal to approximately 950% of the
Average Per Share Price.
(d) Notwithstanding anything to the contrary in this Agreement, all
transfer fees and taxes on the transfers of the Redemption Securities shall be
the responsibility and obligation of Equilink.
Section 2. The Closing.
(a) The closing (the "Closing") of the transactions contemplated by
this Agreement, including, without limitation, the sale, transfer, assignment
and delivery by Equilink to Surge of the Redemption Securities and payment of
the Consideration by Surge to Equilink will take place on April 5, 2001 (the
"Closing Date"), at the offices of Snow Xxxxxx Xxxxxx P.C., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other time and/or place as the parties
hereto may mutually agree.
(b) At the Closing, Equilink shall deliver to Surge such stock
certificates evidencing Equilink's ownership of the Redemption Securities, duly
endorsed in blank for transfer by Equilink, with the signature (and the
signature of any other record holder of the Redemption Securities evidenced by
such stock or warrant certificate) on each such certificate containing a
signature guarantee conforming to and given by an eligible guarantor institution
under Rule 17Ad-14 promulgated under the Securities Exchange Act of 1934, as
amended.
(c) At the Closing, by certified check or wire transfer, Surge shall
deliver to Equilink the Consideration.
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(d) At the Closing, XxXxxx and Equilink shall execute and deliver to
Surge such other documents as may be reasonably requested of Surge in order to
effect the consummation of the transactions contemplated by this Agreement,
including, without limitation, the sale, transfer, assignment and delivery to
Surge of the Redemption Securities.
Section 3. Representations and Warranties of XxXxxx and Equilink. XxXxxx and
Equilink, jointly and severally, hereby represent and warrant to Surge that:
(a) Equilink is the lawful owner of each of the Redemption Securities
and has the full right, power, and authority to sell, transfer, assign and
deliver to Surge the Redemption Securities, each in accordance with the terms of
this Agreement, and the sale, transfer, assignment and delivery of the
Redemption Securities in accordance with the terms of this Agreement will
transfer good, valid and marketable title to the Redemption Securities, free and
clear of all liens, encumbrances, claims or rights of every kind and nature
whatsoever;
(b) XxXxxx is the President and sole equity owner of Equilink;
(c) There are no existing options, warrants, calls, or commitments on
the part of XxXxxx and Equilink of any character relating to any of the Surge
Common Shares or Surge Preferred Shares;
(d) XxXxxx and Equilink have the right, authority and power to enter
into this Agreement, and this Agreement has been duly executed and delivered and
constitutes the valid and binding obligation of XxXxxx and Equilink;
(e) No consent of any person not a party to this Agreement and no
consent of any governmental authority is required to be obtained on the part of
XxXxxx or Equilink to permit the sale, transfer and assignment of the Redemption
Securities as contemplated by this Agreement;
(f) XxXxxx and Equilink have knowledge of the value of Surge,
the Surge Common Shares and the Surge Preferred Shares;
(g) XxXxxx and Equilink have reviewed the Annual Report on Form 10-KSB
of Surge, for the year ended November 30, 2000, as filed with the Securities and
Exchange Commission;
(h) XxXxxx and Equilink have had the opportunity to ask questions about
Surge and have undertaken their own due diligence in connection with the
transactions contemplated by this Agreement; and
(i) No representation, warranty or agreement made by XxXxxx or Equilink
in this Agreement, any exhibits or schedules hereto or any other document
referred to herein contains or will contain any untrue statement of a material
fact or omits or will omit to state any material fact necessary to make any
statement, representation, warranty or agreement not misleading.
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Section 4. Representations and Warranties of Surge. Surge represents and
warrants to XxXxxx and Equilink as follows:
(a) Surge is a corporation duly formed, validly existing and in good
standing under the laws of the State of New York, having the corporate power and
authority to own or lease all of its properties and assets and to carry on its
businesses as now being conducted, and possesses all licenses, franchises,
rights and privileges material to the conduct of its business, taken as a whole;
neither the character of the properties owned or leased by Surge, nor the nature
of its business as transacted by it requires Surge to be qualified in any other
jurisdiction, except in those jurisdictions where Surge is so qualified or those
jurisdictions where the failure to so qualify would not materially adversely
affect the business, properties or operations of Surge, taken as a whole;
(b) Surge has the corporate power to enter into this Agreement, and the
execution, delivery, and performance of this Agreement by Surge has been duly
authorized and, when executed and delivered, shall constitute the valid and
binding obligation of Surge enforceable in accordance with its terms; the
execution, delivery, and performance by Surge of its obligations hereunder will
not constitute a violation of, conflict with, result in any breach of, or
constitute a default under, or result in any claim or the creation of a lien or
encumbrance on any of the properties or assets of Surge pursuant to its
certificate of incorporation and by laws, or any contract, license, indenture,
mortgage lease, or other instrument to which Surge is a party or by which Surge
is bound or affected; no consent of any person not a party to this Agreement and
no consent of any governmental authority is required to be obtained on the part
of Surge to permit the consummation of the transactions as contemplated by this
Agreement;
(c) Surge makes no representation as to the (i) condition or
value of the property or other assets owned by Surge or (ii) business prospects
of Surge; and
(d) No representation, warranty, or agreement made by Surge in this
Agreement, any exhibits or schedules hereto or any other document referred to
herein contains or will contain any untrue statement of a material fact or omits
or will omit to state any material fact necessary to make any statement,
representation, warranty, or agreement not misleading.
Section 5. Covenants and Agreements of the Parties.
(a) XxXxxx and Equilink shall not disclose or deliver to any other
party those trade secrets or confidential or proprietary information of Surge
gained through XxXxxx'x relationships, directly or indirectly through Equilink,
with Surge. This includes, but is not limited to, proprietary technologies,
software programs and tools, financial information, business plans, systems
files, algorithms, file structures, customer lists, supplier lists, internal
program structures, options, documentation and data developed by Surge, or any
subsidiary or division of Surge. XxXxxx and Equilink agree that any breach of
this paragraph 5(a) will cause Surge substantial and irreparable damages that
would not be quantifiable and, therefore, in the event of any such breach, in
addition to other remedies that may be available, Surge shall have the right to
seek specific performance and other injunctive and equitable relief.
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(b) The parties hereto mutually agree not to publish, communicate or
disseminate any negative information as regards each other, or to make public
any information regarding this Agreement to the media, suppliers, vendors and
other industry participants, or in any way to any other person, except that they
may disclose this Agreement's contents to their respective financial advisors,
accountants and attorneys and as otherwise required by law. The parties hereto
each agree that any breach of this paragraph 5(b) by a party will cause the
other party substantial and irreparable damages that would not be quantifiable
and, therefore, in the event of any such breach, in addition to other remedies
that may be available, such other party shall have the right to seek specific
performance and other injunctive and equitable relief.
(c) The Consideration being paid to Equilink by Surge pursuant to
Section 1 and the number of Surge Common Shares and Surge Preferred Shares
constituting the Redemption Securities have been negotiated and agreed to by
each of the parties to this Agreement.
(d) XxXxxx and Equilink each covenants and agrees not to, directly or
indirectly, institute, prosecute or be in any way instrumental in the
institution or prosecution of any action, proceeding or contest, or threat of
such institution or prosecution, against Surge or Surge's directors, officers,
employees, attorneys and accountants.
(e) Surge covenants and agrees not to, directly or indirectly,
institute, prosecute or be in any way instrumental in the institution or
prosecution of any action, proceeding or contest, or threat of such institution
or prosecution, against XxXxxx, Equilink or Equilink's directors, officers,
employees, attorneys and accountants, relating to any agreements, oral or
written, between or among XxXxxx and/or Equilink and Surge, including, without
limitation, the Equilink Agreements. This covenant and agreement by Surge does
not waive, release or discharge any right of Surge to (i) pursue claims against
Equilink and XxXxxx for illegal conduct, (ii) file any and all cross-claims,
counterclaims or third party claims, and/or to seek indemnity or contribution
from or against Equilink and XxXxxx in any lawsuit commenced by Equilink or
XxXxxx against Surge and/or any action commenced by or on behalf of third
parties or in a shareholder derivative action against Equilink, XxXxxx and/or
Surge relating in any manner to investment banking or other services rendered by
Equilink or XxXxxx to or for the benefit of Surge.
(f) The provisions of this Section 5 shall survive the Closing.
Section 6. XxXxxx Releases.
(a) As a material inducement to Surge to enter into this Agreement,
Equilink shall provide to Surge at the Closing releases of XxXxxx, Equilink and
Xxxxx Xxxxx, substantially identical in form to the releases (the "XxXxxx
Releases") set forth in Schedules 6(a)(i), 6(a)(ii) and 6(a)(iii) to this
Agreement, duly executed by the individual party providing the release set forth
in each of the XxXxxx Releases, with such executions duly notarized.
(b) It is understood and agreed by the parties hereto that the facts
and respective assumptions of law in contemplation of which this Agreement is
made may hereafter prove to be
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other than or different from those facts and assumptions now known, made or
believed by them to be true. Accordingly, the parties hereto expressly accept
and assume the risk of the facts and assumptions to be so different, and agree
that all terms of this Agreement shall be in all respects effective and not
subject to termination or revision by any such difference in facts or
assumptions of law.
Section 7. Conditions to Obligations of Surge. The obligations of Surge under
this Agreement are, at the option of Surge, subject to the satisfaction at and
prior to the Closing of the following conditions:
(a) Fulfillment of Covenants. All the terms, covenants and conditions
of this Agreement to be complied with and performed by XxXxxx and Equilink on or
before the Closing shall have been duly complied with and performed;
(b) Accuracy of Representations and Warranties. All of the
representations and warranties made by XxXxxx and Equilink in this Agreement
shall be true as of the Closing with the same force and effect as though such
representations and warranties had been made as of the Closing;
(c) No Litigation. Surge shall have no knowledge of any action,
proceeding, investigation or pending or actual litigation the purpose of which
is to enjoin or may be to enjoin the transactions contemplated by this Agreement
or which would have the effect, if successful, of imposing a material liability
upon Surge, or any of the officers or directors thereof, because of or due to,
in any respects, the consummation of the transactions contemplated by this
Agreement; and
(d) Delivery of the XxXxxx Releases. Equilink shall have delivered to
Surge each of the XxXxxx Releases, duly executed and notarized.
Section 8. Conditions to Obligations of XxXxxx and Equilink. The obligations of
XxXxxx and Equilink under this Agreement are, at the option of XxXxxx and
Equilink, subject to the satisfaction at and prior to the Closing of the
following conditions:
(a) Fulfillment of Covenants. All the terms, covenants and conditions
of this Agreement to be complied with and performed by Surge on or before the
Closing shall have been duly complied with and performed;
(b) Accuracy of Representations and Warranties. All of the
representations and warranties made by Surge in this Agreement shall be true as
of the Closing with the same force and effect as though such representations and
warranties had been made as of the Closing; and
(c) No Litigation. XxXxxx and Equilink shall have no knowledge of any
action, proceeding, investigation or pending or actual litigation the purpose of
which is to enjoin or may be to enjoin the transactions contemplated by this
Agreement or which would have the effect, if
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successful, of imposing a material liability upon XxXxxx or Equilink because of
or due to, in any respects, the consummation of the transactions contemplated by
this Agreement.
Section 9. Miscellaneous.
(a) Notices. All requests, demands, notices and other communications
required or otherwise given under this Agreement shall be sufficiently given if
(i) delivered by hand, against written receipt therefor, (ii) forwarded by
overnight courier requiring acknowledgment of receipt or (iii) mailed by postage
prepaid, registered or certified mail, return receipt requested addressed, as
follows:
If to any of Surge, to: Xxx Xxxx, President
Surge Components, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxx Xxxx, Xxx Xxxx 00000
with a copy to: Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to XxXxxx or Equilink, to: Equilink Capital Partners, LLC
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or, in the case of any of the parties hereto, at such other address as such
party shall have furnished in writing, in accordance with this paragraph 9(a),
to the other parties hereto. Each such request, demand, notice or other
communication shall be deemed given (i) on the date of delivery by hand, (ii) on
the first business day following the date of delivery to an overnight courier or
(iii) three business days following mailing by registered or certified mail.
(b) Prior Agreements/Oral Modification. This Agreement supersedes all
prior agreements and constitutes the entire agreement and understanding between
parties with respect to the subject matter of this Agreement, and the Surge
Common Shares and Surge Preferred Shares constituting the Redemption Securities.
This Agreement may not be amended, modified in any manner or terminated orally;
and no amendment, modification, termination or attempted waiver of any of the
provisions hereof shall be binding unless in writing and signed by the parties
against whom the same is sought to be enforced.
(c) Attorney's Fees. In the event of any litigation or arbitration
between the parties to this Agreement, or any of them, concerning this
Agreement, each party shall be responsible for its attorney's fees and costs,
except as may be otherwise determined by a court of competent jurisdiction.
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(d) Binding Agreement; Benefit. The provisions of this Agreement
will be binding upon, and will inure to the benefit of, the respective heirs,
legal representatives and successors of the parties hereto.
(e) Governing Law. This Agreement will be governed by, and construed
and enforced in accordance with the laws of the State of New York without regard
to the conflict of laws provisions thereof. The parties hereto do hereby consent
and submit to the venue and jurisdiction of the state and federal courts sitting
in the State of New York, County of Suffolk, as the sole and exclusive forum for
such matters of dispute, and further agree that, in the event of any action or
suit as to any matters of dispute between the parties, service of any process
may be made upon the other party in the same manner as the giving of notices
under paragraph 9(a) of this Agreement.
(f) Arbitration.
-----------
(i) Any dispute arising between the parties to this Agreement,
including, but not limited to, those pertaining to the formation,
validity, interpretation, effect or alleged breach of this Agreement
("Arbitrable Dispute") will be submitted to arbitration in New York,
New York, before an experienced panel of arbitrators selected in
accordance with the rules of the American Arbitration Association.
(ii) Should any party to this Agreement hereafter institute
any legal action or administrative proceedings against another party by
any method other than said arbitration with respect to the subject
matters of this Agreement then, notwithstanding the provisions of
paragraph 7(c) of this Agreement, the responding party shall be
entitled to recover from the initiating party all damages, costs,
expenses and attorney's fees incurred as a result of such action.
(g) Proper Construction. The language of all parts of this Agreement
shall in all cases be construed as a whole according to its fair meaning, and
not strictly for or against any of the parties. The parties hereto agree that
they have been represented by counsel during the negotiation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document. As used in this Agreement, the term "or" shall be deemed to include
the term "and/or" and the singular or plural number shall be deemed to include
the other whenever the context so indicates or requires.
(h) Waiver of Breach. The waiver by a party of a breach of any
provision of this Agreement by another party must be in writing and shall not
operate or be construed as a waiver of any subsequent breach by such other
party.
(i) Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(j) Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
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unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
(k) Assignment. This Agreement is personal in its nature and the
parties hereto shall not, without the consent of the other parties, assign or
transfer this Agreement or any rights or obligations hereunder.
(l) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
Surge Components, Inc.
By: /s/ Xxx Xxxx
----------------------------------
Xxx Xxxx, President
Xxxxxx XxXxxx
/s/ Xxxxxx XxXxxx
-------------------------------------
Xxxxxx XxXxxx
Equilink Capital Partners, LLC
By: /s/ Xxxxxx XxXxxx
----------------------------------
Xxxxxx XxXxxx, President
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