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EXHIBIT 4.34
AGREEMENT AND PLAN OF EXCHANGE
This AGREEMENT AND PLAN OF EXCHANGE, dated as of October 31, 1996 (the
"Plan"), by and among Xxxxxx Xxxxxxxxxx, Inc., a corporation organized under the
laws of the State of Delaware (the "Company") and GFL Performance Fund Ltd., a
corporation organized under the laws of the British Virgin Islands ("GFL" or the
"Holder");
W I T N E S S E T H:
THAT WHEREAS, the Company and GFL are parties to a Regulation D Securities
Note Purchase Agreement, entered into as of May 8, 1996 (the "May Agreement"),
pursuant to which GFL purchased on May 17, 1996, an aggregate principal amount
of $5,000,000 of the 5% Convertible Debentures Due May 1, 1998 (the "May
Debentures") of the Company for an aggregate purchase price of $5,000,000;
WHEREAS, GFL has converted $3,087,000 principal amount of the May
Debentures into the Company's common stock in accordance with the terms of the
May Agreement and the May Debentures; and
WHEREAS, all of the parties hereto desire to enter into this Plan pursuant
to which GFL will exchange the $1,913,000 aggregate principal amount of May
Debentures currently held by it, plus accrued interest thereon in the amount of
$24,166 for an aggregate of $2,274,754 principal amount of new 10% Bonds Due
December 31, 1996 (the "Bonds") issued in the name of GFL;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby mutually acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEBENTURE EXCHANGE
Section I.1 Debenture Exchange. On the date hereof, the following event
(the "Exchange") shall take place: (i) GFL will exchange the aggregate of
$1,913,000 principal amount of the May Debentures currently held by it, plus
accrued interest thereon in the amount of $24,166, for an aggregate of
$2,274,754 principal amount of the Bonds issued in the name of GFL. The terms
and provisions of the
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Bonds are set forth in the form of the Bond attached hereto as Exhibit A. After
the date hereof, the May Debentures will no longer be of any force and effect
and the rights of GFL will be with respect only to the Bonds issued to GFL in
accordance with the Exchange.
Section I.2 Mechanics of Exchange of Debentures. On the date hereof, GFL
will surrender to the Company the certificate representing the remaining May
Debentures owned by it. Simultaneously with such delivery, the May Debentures
owned by GFL immediately prior to the date hereof shall be canceled and the
Bonds to be issued to GFL as set forth in Section 1.1above shall be issued to
GFL.
ARTICLE II
HOLDER REPRESENTATIONS AND WARRANTIES
Section II.1 Representations and Warranties. As a material inducement to
the Company to issue and deliver the Bonds to GFL as set forth above, the Holder
represents and warrants to the Company as follows:
(i) The Holder is an "Accredited Investor" as that term is defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended
(the "1933 Act"), and, as of the date hereof, the Holder is not an
affiliate of the Company.
(ii) the Holder is acquiring the securities referred to in Section
1.1 above for its own account solely for investment and not with a view to
the distribution or sale thereof in violation of any federal or state
securities laws;
(iii) the Holder has had access to any and all information that such
Holder has requested from the Company concerning the Company and has had
the opportunity to ask questions of and receive answers from the Company
regarding the Company's business and financial affairs;
(iv) the Holder has not relied upon any representation or warranty by
the Company that is not expressly set forth in this Plan (including the
exhibits hereto);
(v) the Holder has such knowledge and experience in financial and
business matters as to be fully capable of evaluating the merits and risks
of ownership of the Bonds;
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(vi) the Holder understands that no federal or state agency has
passed upon the Bonds;
(vii) as of the date hereof, neither the Holder nor any of its
affiliates or agents directly or indirectly maintain any net short
position in any securities of the Company; and
(viii) this Plan has been duly authorized, validly executed and
delivered on behalf of the Holder and is a valid and binding agreement
enforceable against the Holder in accordance with its terms, subject to
general principles of equity and to bankruptcy or other similar laws
affecting the enforcement of creditors' rights generally.
Section II.2 Survival and Indemnification. The foregoing representations
and warranties shall survive the issuance and delivery of the Bonds, as set
forth herein. The Holder shall indemnify and hold the Company harmless from and
against all damages, losses and expenses (including, without limitation,
reasonable attorneys' fees, court costs and disbursements) suffered or paid,
directly or indirectly, by the Company arising out of the failure of any of the
foregoing representations and warranties made by such Holder to be true and
correct in all material respects on and as of the date hereof.
ARTICLE III
COMPANY REPRESENTATIONS AND WARRANTIES
Section III.1 Representations and Warranties. As a material inducement to
the Holder to accept the Bonds from the Company as set forth above, the Company
represents and warrants as follows:
(i) the issuance, sale and delivery of the Bonds are within the
Company's corporate powers and have been duly authorized by all required
corporate action on the part of the Company and its stockholders and when
such securities are issued and delivered in accordance with the terms
hereof and of the Bonds for the consideration expressed herein the Bonds
will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to general principles
of equity and to bankruptcy and similar laws affecting the enforcement of
creditors' rights generally; and the issuance, sale and delivery of the
Default Debentures (as defined in the Bonds) are within the Company's
corporate powers and have been duly authorized by all required corporate
action on the part of the Company and its stockholders and when the
Default Debentures are issued and delivered
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in accordance with the terms of the Bonds, the Default Debentures will be
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to general principles of
equity and to bankruptcy and similar laws affecting the enforcement of
creditors' rights generally;
(ii) the issuance, sale and delivery of the shares of Common Stock
issuable upon conversion, if necessary, of the Default Debentures (as such
term is defined in the Bonds), is within the Company's corporate powers
and have been duly authorized by all required corporate action on the part
of the Company and its stockholders and when such securities are issued,
sold and delivered in accordance with the terms hereof and of the Default
Debentures for the consideration expressed herein, in the Bonds and in the
Default Debentures, such securities will be duly and validly issued, fully
paid and nonassessable;
(iii) there are no preemptive rights of any shareholders of the
Company;
(iv) this Plan has been duly authorized, validly executed and
delivered on behalf of the Company and is a valid and binding agreement
enforceable against the Company in accordance with its terms, subject to
general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally;
(v) no event which, if the Bonds were outstanding, would constitute
an Event of Default (as defined in the Bonds) or would, with giving of
notice or the passage of time or both, constitute an Event of Default has
occurred and is continuing; and
(vi) The execution, delivery and performance of this Plan by the
Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Certificate
of Incorporation or By-laws of the Company or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its subsidiaries is
a party, or result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and
regulations) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries is
bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a material adverse effect on the
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business, operations, condition (financial or other), results of
operations or prospects of the Company. Except as required under the 1933
Act and any applicable state securities laws, the Company is not required
to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Plan in
accordance with the terms hereof.
Section III.2 Survival and Indemnification. The foregoing representations
and warranties shall survive the issuance and delivery of the Bonds, as set
forth herein. The Company shall indemnify and hold GFL harmless from and against
all damages, losses and expenses (including, without limitation, reasonable
attorneys' fees, court costs and disbursements) suffered or paid, directly or
indirectly, by GFL arising out of the failure of any of the foregoing
representations and warranties made by the Company to be true and correct in all
material respects on and as of the date hereof.
ARTICLE IV
COVENANTS
Section IV.1 Certain Covenants. For so long as any Bonds or Default
Debentures held by the Holder remain outstanding or the Holder beneficially owns
any shares of Common Stock issued upon conversion of Default Debentures, the
Company covenants and agrees with the Holder that:
(a) It will maintain the listing of its Common Stock on the NASDAQ
National Market;
(b) Subsequent to the filing of the Amendment (as hereinafter
defined), it will not issue stop transfer instructions to its transfer
agent with respect to and will not place a restrictive legend on the
shares of Common Stock issuable upon the conversion of the Default
Debentures;
(c) it will permit the Holder to exercise its right to convert the
Default Debentures, if necessary, by telecopying an executed and completed
Notice of Conversion to the Company and delivering the original Notice of
Conversion and the certificate representing the Default Debentures, to the
Company by express courier. Each date on which a Notice of Conversion is
telecopied to and received by the Company in accordance with the
provisions hereof shall be deemed a conversion date. The Company will
transmit the certificates representing shares of Common Stock issuable
upon conversion of any Default Debentures (together with the certificates
representing the Default Debentures, not so converted) to the Holder via
express courier, by electronic
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transfer or otherwise, within three business days after the date the
Company has received the original Notice of Conversion and certificate
representing the Default Debentures being so converted. In addition to any
other remedies which may be available to the Holder, in the event that the
Company fails for any reason to effect delivery of such shares of Common
Stock within such three-business day period, the Holder, prior to
receiving such shares of Common Stock, will be entitled to revoke the
relevant Notice of Conversion by delivering a notice to such effect to the
Company whereupon the Company and the Holder shall each be restored to
their respective positions immediately prior to delivery of such Notice of
Conversion; and
(d) it will prepare and file with the Securities and Exchange
Commission (the "Commission") not later than twenty days from the date
hereof, a post-effective amendment (the "Amendment") to the registration
statement, Registration No. 333-8395 (the "Registration Statement"), which
was declared effective by the Commission on August 12, 1996, increasing
the number of shares of Common Stock covered by the Registration Statement
to Two Hundred percent (200%) of the number of shares of Common Stock
issuable upon the conversion of the Default Debentures (the shares covered
by the Registration Statement being referred to herein as the
"Registration Shares") as would be issuable on the date of filing of the
Amendment if all of the Default Debentures were converted on that date,
pursuant to the rules and regulations of the Commission;
(i) prepare and file with the Commission such additional
amendments and supplements to the Registration Statement and the
prospectus used in connection therewith as may be necessary to keep the
Registration Statement effective for a period of not less than nine
months and comply with the applicable provisions of the rules and
regulations of the Commission;
(ii) furnish to the Holder such number of copies of each
prospectus included in the Registration Statement for the Registration
Shares, including each preliminary prospectus, as such Holder shall
reasonably request each of which shall be in conformity with the
requirements of the rules and regulations of the Commission;
(iii) notify the Holder at any time, but in any event no later
than five days following the happening thereof, when a prospectus
relating to such Registration Shares is required to be delivered under
rules and regulations of the Commission, of the happening of any event as
a result of which the prospectus included in the Registration Statement,
as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the
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light of circumstances then existing, and at the Holder's request, prepare
and furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registration Shares, such prospectus
shall not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(iv) cause all of the Registration Shares to be listed on the
NASDAQ National Market;
(v) in instances where an exemption from such qualification is
not available, use its best efforts to register or qualify the
Registration Shares under the securities or Blue Sky laws of such
jurisdictions as any such Holder shall reasonably request; and
(vi) notwithstanding any other provision of this Plan, the
Debentures or the Default Bonds, the Amendment shall be deemed a
registration statement filed by the Company pursuant to the Registration
Rights Agreement, dated as of May 8, 1996, by and among the Company and
the Holder (the "Registration Rights Agreement") and the Registration
Shares covered by the Amendment and any shares of Common Stock issuable
by the Company pursuant to the Default Debentures shall be deemed
Registrable Securities for all purposes of the Registration Rights
Agreement.
Section IV.2 Restrictive Legends. Subsequent to the filing of the
Amendment, all shares of Common Stock issuable upon conversion of the Default
Debentures, if necessary, will be issued without restrictive legend, in the name
of the Holder on the date of the Notice of Conversion. The Company warrants that
no stop transfer instructions have been given or will be given and that the
Bonds, the Default Debentures, if necessary, and the shares of Common Stock
issuable upon the conversion of the Default Debentures shall be freely
transferable on the books and records of the Company.
ARTICLE V
MISCELLANEOUS
Section V.1 Fees and Expenses. All costs and expenses incurred in
connection with this Plan and the consummation of the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
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Section V.2 Amendment and Waiver. This Plan may be amended by the parties
hereto only by an instrument in writing signed by all of the parties hereto. The
failure of any party to insist in any one or more cases upon the strict
performance of any of the terms and provisions of this Plan, or to exercise any
right herein contained, shall not be construed as a waiver by such party of such
terms and provisions or rights. No party shall be deemed to have waived any
provision of this Plan unless such waiver shall be in writing and executed by
such party.
Section V.3 Entire Agreement. This Plan and the Exhibit hereto constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede all prior or contemporaneous agreements and understandings,
both written and oral, by and among the parties, or any of them, with respect to
the subject matter hereof.
Section V.4 Assignment. No party shall be entitled to assign its rights
hereunder to any other person without the prior written consent of the other
parties hereto, which consent shall not unreasonably be withheld.
Section V.5 Governing Law. This Plan and the rights of the parties
hereunder shall be governed by the laws of the State of Delaware without regard
to the choice of law provisions thereof.
Section V.6 Further Assurances. Each of the parties hereto shall do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further instruments, acts, deeds and assurances as may be
reasonably required for the purpose of carrying out the provisions and intent of
this Plan and the Exhibit annexed hereto.
Section V.7 Counterparts. This Plan may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Section V.8 May Agreement and Registration Rights Agreement. Except as
amended by this Plan, the May Agreement and the Registration Rights Agreement
shall remain in effect in accordance with their respective terms.
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IN WITNESS WHEREOF, the parties have caused this Plan to be executed as of
the date first written above.
XXXXXX XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President and CFO
GFL PERFORMANCE FUND LTD.
By: /s/ P.A. de Groot
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Name: P.A. de Groot
Title: President
